National security information flow: from source to reporter's privilege.
IDENTIFYING AND BALANCING POLICY INTERESTS
Recent cases have returned attention to the question of whether journalists should be able to acquire and publicize classified information, and whether the reporter's source can remain confidential if legal proceedings necessitate the source's testimony. Journalists claim that a "reporter's privilege," which can shield the identity of confidential sources from disclosure during court processes, (199) is essential because the privilege stimulates an uncensored "free flow of information," (200) supports the public's "right to know" government activities, and emends populace understanding of policies. (201) Justice Stewart considered maintaining source confidentiality--a right implicit in gathering the news. (202) To journalists, revealing a source's identity after promising confidentiality to that source in exchange for accurate information is considered a breach of journalist ethics (203) and could result in liability under promissory estoppel. (204) The New York Times Chairman, Arthur Ochs Sulzberger, and Chief Executive Officer, Russell T. Lewis, contend "[t]he press simply cannot perform its intended role if its sources of information--particularly information about the government--are cut off .... Without an enforceable promise of confidentiality, sources would quickly dry up and the press would be left largely with only official government pronouncements to report." (205)
Alternatively, industry interest may not be innately united with public interest. In Branzburg v. Hayes, which set the governing precedent, the Supreme Court doubted that a constitutionally-based protection was necessary to facilitate a free flow of information. (206) Moreover, the Court surmised that advocacy for a privilege was driven by the "professional self-interest" of reporters. (207) Reporters have self-interest in breaking a big story; they may feel empowered by possessing a secret source; or, they may mistakenly overestimate the value of the information to public discourse.
Also, there is the judicial interest in safeguarding the equipoise of parties to litigation. Professor Robert Zelnick summarized this concern, stating:
In an era when sitting presidents have been compelled to produce incriminating evidence or remain available for ordinary civil lawsuits, I have found it difficult to see why a member of the press should be immune from testifying about a crime he has witnessed or an event that affects the rights and liabilities of parties to a legal dispute. (208)
However, the utility of a news account to public discourse could conceivably outweigh the needs of a court if a whistleblower would only anonymously expose something illegal, unethical, (209) or imperative to democratic dialogue (210) after a guarantee of confidentiality. Still, even with this derivative contingency, the value of a source's information is a fact-intensive question that is likely unsuitable to inflexible ex ante rules.
From the analyses in Parts I through V, it seems unreasonable to unconditionally protect anonymity when a source's information may not be valuable to public discourse, but could instead be part of the "game of leaks" that reporters cannot disentangle. (211) If journalists are unable to adequately distinguish, assess, and methodize varieties of asymmetric information, such as between authorized and unauthorized leaks, the risk of perpetuating false stories that could cognitively impact three hundred million Americans is a danger that should outweigh a reporter's privilege. Moreover, even if media outlets strive to conscientiously and objectively assess the confidential source's self-interest, accounts, (212) and potential for abuse, (213) media outlets may also need to beware of their own journalists. (214) Consider the following recent cases of journalist fraud, which one can only hope is a remote anomaly.
In June 2003, Howell Raines and Gerald Boyd, two top editors at The New York Times, resigned because Jayson Blair, their subordinate, "committed frequent acts of journalistic fraud." (215) The New York Times wrote that Blair's "widespread fabrication and plagiarism represent[ed] a profound betrayal of trust and a low point in the 152-year history of the newspaper .... He fabricated comments. He concocted scenes. He lifted material from other newspapers and wire services." (216) Similarly, in mid2003, USA Today began investigating Jack Kelley, a foreign affairs correspondent and top writer, over whether his reporting was adequately sourced. (217) The newspaper ultimately concluded that Kelley's twenty-one years of reporting and over 1,400 stories covered revealed a "pattern of lies, deception, and plagiarism." (218) Kelley and Managing Editor Hal Ritter resigned, while Publisher Craig Moon apologized. (219) Both periodicals conducted internal investigations and printed "high-profile mea culpas to maintain their readers' trust and confidence." (220) Both investigations revealed intrinsic problems with using confidential sources (221) and editorial lapses in verifying the accounts of confidential sources. (222) If there had not been a norm that permitted the use of confidential sources, the means of concealing falsities within stories would have been reduced.
DISTINGUISHING REASONS FOR THE PRIVILEGE
To more fully assess the utility of a reporter's privilege in relation to the opening analytical framework, and to appraise whether recent advocacy for statutory formulae to protect source confidentiality is favorable, the chronology of non-national security cases is probative because it preceded and ostensibly influenced the precedent that now governs national security cases. The two contexts are theoretical analogies, but involve dissimilar needs, premises, and public interests.
The first confidential source privilege context arose during the nineteenth century, an era in which "at least 222 correspondents, news writers, and editors ... were asked by congressional committees ... to identify sources or disclose other information." (223) Leaks to reporters often exposed government corruption and wrong doing; and, when investigations followed to substantiate the merit of charges, journalists were sometimes subjected to criminal prosecutions for failing to reveal confidential sources. (224) Since then, most questions of reporters attempting to shield confidential informants have arisen in grand jury proceedings, civil cases (particularly libel cases), and criminal cases. (225)
In 1958, for example, Marie Torre became the first reporter to proffer a confidential source privilege in a civil proceeding. (226) In that case, Judge Potter Stewart, before being appointed to the Supreme Court, asserted that protecting confidential sources was important to fostering the free flow of information; nonetheless, he ordered Torre to divulge the confidential source because the source was essential to the merits of Judy Garland's libel action. (227) This case was followed by an abrupt upturn in privilege assertions, predominantly because journalists granted promises of confidentiality to leaders of groups that protested the Vietnam War and advocated for civil rights and social justice causes. (228) From 1960 to 1968, the government issued only 1.5 subpoenas per year on journalists, but the Nixon Administration entered office in 1969 and issued seventy-five subpoenas per year during 1969 and 1970. (229) This period was arguably the last example of vigorous journalism that sought to check government in ways consistent with the Framers' vision for the press. (230)
Subsequently, in Branzburg, Paul Branzburg refused to testify about his confidential source for articles involving drug activities that were published in The Courier-Journal, a Louisville, Kentucky, daily newspaper. (231) In a 5-4 decision, the Supreme Court held that reporters do not have a First Amendment right to refuse to answer grand jury questions, including inquiries about the identity of confidential sources. (232) The Court reasoned that the interests, needs, and rights inherent in the judicial process were sufficiently substantial "to override the consequential, but uncertain, burden on news gathering ... [And r]eporters, like other citizens, [must] respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial." (233) The Court rejected "the argument that the public interest in possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the commission of such crimes in the future." (234) With Branzburg controlling, journalists can expect to have to disclose confidential sources in grand jury proceedings. (235)
By the mid-1970s, journalists attempted to assert rights directly from the Press Clause to protect source confidentiality, access courtrooms and prisons, restrict law enforcement authorities from searching newsrooms, and defend libel cases. (236) Arguments naturally hinged on Press Clause interpretation, and debate resultantly increased over whether the Framers intended a special First Amendment protection for journalists beyond what is available to the general public. (237) Some scholars maintained that there should be no distinction between the Press and Speech Clauses, (238) while others asserted that there should be elevated protection for the press as a facilitator of democratic dialog. (239) The Supreme Court has itself cited the Press Clause together with the Speech Clause to reference its importance, (240) and Justice Stewart favored recognizing an institutional Press Clause right. (241)
That notwithstanding, a majority of "the Court has never explicitly recognized that the Press Clause involves any significant content different from that provided to all individuals by the prohibition on abridging freedom of speech." (242)
In addition to the protection of the integrity of court processes and the void in special treatment under the Press Clause, there are other jurisprudential and logical impediments to recognizing a confidential source privilege directly from the Constitution. Journalists seek to invoke the privilege not as a fundamental individual right, but as a means of best protecting the institution of the free press, even though "institutions do not have civil rights." (243) Moreover, this privilege is rather unique. Privileges between doctors and patients, lawyers and clients, husbands and wives, and churchgoers and priests are afforded to preserve secrecy of information vis-a-vis the rest of the world in order to facilitate a public policy with regard to that relationship. The privilege between journalists and confidential sources, conversely, aims to champion source anonymity so as to publicly disseminate the substantive message.
RATIONAL CHOICE WITHIN A QUALIFIED PRIVILEGE
Branzburg affirms that a journalist has no constitutional right to refuse to identify a source when a court requires that source's disclosure. (244) A journalist also has no absolute privilege to refuse to disclose a source based on any extra-constitutional protection. (245) However, there are court based, legislative, and prosecutorial screening devices that ostensibly reduce risks to a journalist's rational calculation of whether to use a confidential source's information in a story.
Nine Circuit Courts have recognized a qualified privilege (246) and have developed various tests that balance competing interests to ascertain whether source disclosure is necessary to court processes. (247) Thirty states have shield legislation that permit journalists to withhold confidential sources from prosecutors, grand juries, and opposing parties in civil cases. (248) These statutes balance the needs of the court and the journalist's prerogative in asserting the privilege by examining the importance of the confidentially-held information to issues in the case and determining whether the information can be obtained from other sources. (249)
Also, when the government is a party to legal proceedings, the Attorney General has discretion over whether to require revelation of confidential sources. (250) Parameters set forth in 28 C.F.R. 10 clearly respect journalist prerogative to use secret sources in newsgathering practices and mandate disclosure only for information that is essential to a case. The provision states:
(f) In requesting the Attorney General's authorization for a subpoena to a member of the news media, the following principles will apply: In criminal cases, there should be reasonable grounds to believe, based on information obtained from nonmedia sources, that a crime has occurred, and that the information sought is essential to a successful investigation--particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information. In civil cases there should be reasonable grounds, based on nonmedia sources, to believe that the information sought is essential to the successful completion of the litigation in a case of substantial importance. The subpoena should not be used to obtain peripheral, nonessential, or speculative information. The government should have unsuccessfully attempted to obtain the information from alternative nonmedia sources. The use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information. Even subpoena authorization requests for publicly disclosed information should be treated with care to avoid claims of harassment. Subpoenas should, wherever possible, be directed at material information regarding a limited subject matter, should cover reasonably limited period of time, and should avoid requiring production of a large volume of unpublished material. They should give reasonable and timely notice of the demand for documents. (251)
Newspapers, periodicals, and media across the nation diurnally use unidentified sources, but it is rare for a source to be implicated in a court case and even rarer for a confidential source to be indispensable to legal proceedings. (252) Being unregulated, journalists and editors exercise discretion (253) and decide whether to use confidential sources, assess the source's credibility and the value of information, resolve the level of sourcing necessary for accurate reporting, and construe journalism ethical standards and outlet policies. Meanwhile, when a journalist gathers research for a story, the probability that a confidential source must later be revealed is low. But if a court case does arise, the source could be sufficiently crucial to judicial processes to bypass post-publication protections, such as state shield laws, Attorney General parameters, and court balancing tests. (254)
Since journalists maintain that the profession requires heightened protection for confidential sources, reporters seemingly believe that institutional frameworks do influence daily news reporting. In other words, the lack of an absolute protection during the process of receiving information, promising anonymity to a source, and deciding to publish a story containing the source's information sways a journalist's rational choices in daily reporting. Does the distance between qualified and absolute privilege generate future uncertainty, exacerbate perceived risk to chill, or negatively influence reporting? (255) If the journalist is not legally obligated to intractably defend secrecy, does this influence the source's decision to contact the journalist and impart information? There are no clear answers to these questions, or to how important future information could be to public discourse or possible court processes. If the lack of an absolute privilege does not engender additional risk, influence reporting adversely, or reduce a confidential source's decision to come forward, (256) journalist consternation is an exaggeration. Denying an absolute privilege may even foster more conscientious news production practices.
REPORTER PRIVILEGE QUESTIONS IN THE NATIONAL SECURITY CONTEXT
The Recipient of National Security Information and the Public's "Right to Know"
As addressed in the previous subsections, risks to a journalist exist because a confidential source's message could invoke individual rights and court interests. When there is a leak of national security information, however, journalists should undoubtedly recognize that a source providing classified information may be engaging in a criminal offense. (257) What is uncertain is the likelihood of prosecution. An "authorized leak" is unlikely to be investigated, but an "unauthorized leak" has some possibility of prosecution. (258) Also, the public interest in dissemination and secrecy is uncertain. While transparency in government is generally favored, there is a public interest in maintaining secrecy that can further countenance defense measures to confront a security threat. On the other hand, public knowledge of the gravity of a perceived threat may be auspicious if populace support is necessary for the government to adequately respond to a threat. (259) The requisite balance among these discretions is a fact-intensive and contextual question, but one that can be normatively applied.
For example, the Bush Administration selectively declassified information and used controlled leaks to embellish unsubstantiated threats to a media that seemed uninterested in challenging allegations. (260) But when criticism and whistleblowers emerged, the Bush Administration emphasized that secrecy was necessary for security. (261) Information provided by whistleblowers about the lack of evidence to support the claims that Iraq possessed weapons of mass destruction and had links to al-Qaeda, the surveillance programs conducted on Americans, and the news of torture followed the pattern of emphasizing secrecy, (262) even though these were effectively all instances of whistle-blowing. These circumstances may suggest that the public interest in dissemination is exploitable, particularly by overstating the gravity of a threat, and that the severity of the national security breach may be emphasized (263) and even culminate in self-interested investigations and prosecutions to protect secrecy prerogatives. (264)
New York Times Co. v. United States, decided in 1971, opened the modern-day precedent on publication of national security information, (265) which derivatively influences journalist expectations on confidential source privilege. The Supreme Court accepted an expedited review over the Nixon Administration's attempt to enjoin The New York Times from publishing portions of a classified seven-thousand-page history of the Vietnam War (dubbed the "Pentagon Papers"), which was illegally obtained by Daniel Ellsberg, a government consultant. (266) The Court held that the government can restrict publication of classified information if it would "surely result in direct, immediate, and irreparable damage to our Nation or its people"; having said that, the Court noted that this exception was not applicable in the present case. (267) In reaching its decision, the Court emphasized the typical reluctance to permit prior restraints on dissemination, and that there was no apparent overriding interest, such as might exist with an Espionage Act violation. (268) National security information, including that which is illegally-obtained, can be received by a journalist; and, in practice, it appears that the media "has a nearly absolute right to publish leaked information." (269) Likewise, journalists "generally do not believe that seeking or receiving classified information is illegal or unethical." (270)
EXCEPTIONS TO NEW YORK TIMES CO.
Some federal court cases challenged the New York Times Co. principle that favors dissemination, generally because the information was of lower public value and of higher national security interest. In 1979, the government was granted the first temporary restraining order ("TRO") as a prior restraint to prevent the publication of national security information. Prior to publishing "The H-Bomb Secret: How We Got It--Why We're Telling It," (271) The Progressive magazine provided the piece to the Department of Energy ("DOE") for review, but the DOE contended that the article contained restricted information. (272) However, Howard Morland, the author, only used public sources to produce the piece and did not have access to classified information. (273) The federal district court balanced competing interests and held that there was "no plausible reason why the public needs to know the technical details about hydrogen bomb construction," and that the government had an interest in preventing nuclear proliferation. (274) The TRO was overruled, but the initial decision departed from the New York Times Co. case and may suggest that it is possible to have a prior restraint when national security is at issue even when the content is not classified. (275) Similarly, in Snepp v. United States, discussed earlier, the CIA did not need to prove that Frank Snepp actually published classified information in his book, Decent Interval, but only that he published it without first giving the CIA a prepublication review. (276)
The clearly discernable situation that can restrict circulating classified information and punish for dissemination occurs when the unauthorized disclosure is to a private party and there is a clearer compromise to U.S. national security interests. (277) The public interest in freedom of information is reduced and there is likely no mass publication. The Espionage Act of 1917, which is based on the Defense Secrets Act of 1911, broadly prevents the disclosure of national defense information to "any person not entitled to receive it." (278) It criminalizes copying, receiving, obtaining, and disseminating national security information with the "intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation." (279) Other provisions of the Espionage Act further specify information protected, such as those that restrict communications of classified information in a "time of war" (with no need for "intent to harm") or to a foreign power. (280) These provisions envision violations of the most evident harm to a country, such as when an individual with a security clearance provides country secrets to another state for financial or other reasons. (281)
Nonetheless, the public interest in receiving information is balanced against the degree to which an Espionage Act violation actually places U.S. national security at a relative disadvantage is interpretable. This was encountered in the competing arguments in United States v. Morison, a case involving the first indictment of a government employee under the Espionage Act for revealing classified information to the media. (282) Samuel Loring Morison, while employed at the Naval Intelligence Support Center, removed the words "Top Secret" from satellite photographs and transmitted them to Jane's Defence Weekly. (283) He was convicted of possessing and disseminating the photographs under Section 793(d) and (e) of the Espionage Act, which affirms that anyone possessing classified national security information who "willfully communicates, delivers, [or] transmits ... the same to any person not entitled to receive it" can be prosecuted. (284) The court emphasized the importance of protecting national security information, as well as the public's competing interest in having information that can impact their perceptions about foreign policy and war. (285) The conviction was upheld, but Morison was later pardoned by President Clinton. (286)
United States v. Rosen unfolded at the height of the leak investigations during the Bush Administration. (287) This case also involved First Amendment rights, New York Times Co. principles that favor not restricting dissemination, and core Espionage Act rules. In Rosen, Pentagon official Lawrence Franklin provided classified information to two American Israel Public Affairs Committee ("AIPAC") lobbyists--Steven Rosen and Keith Weissman--who then provided the information to other AIPAC members, foreign officials, and members of the media. (288) Weissman and Rosen were charged as Franklin's conspirators in violation of Section 793(d), (e), and (g) of the Espionage Act. (289) The chain of possession indictments created a question forecasted by Justice White in his concurring opinion in New York Times Co. (290) On this question, Judge Ellis believed that secondary disseminators could be prosecuted along with those in direct violation of their classified information "trust" relationship, (291) but ultimately only the latter was held criminally responsible for revealing the classified information. (292) Judge Ellis applied a strict scrutiny standard and emphasized that the government did have a "compelling interest" in protecting the national security information, (293) but to convict the secondary disseminators under the Espionage Act, the government needed to prove that there was a "bad faith purpose to either harm the United States or to aid a foreign government." (294) Franklin, the original source and the only one who held the security clearance, pied guilty and received a twelve and a half year sentence that was reduced to probation and home confinement. (295) The charges against Weissman and Rosen were eventually dismissed. (296)
The most recent twist on leak and publication of classified information has generated additional legal ambiguity due to the untraditional news outlet. (297) In 2010, WikiLeaks, a website devoted to revealing secretive government information, publicized both a decrypted video of a U.S. military helicopter shooting at civilians in Iraq and thousands of classified documents, some of which also revealed apparent wrongdoing by U.S. and foreign government officials. (298) Army intelligence analyst Bradley Manning faced twenty-two charges for allegedly leaking the video to WikiLeaks and using unauthorized software on government computers to download classified information; (299) however, Julian Assange, the founder of WikiLeaks, has not yet been indicted under the Espionage Act. (300)
Several challenges flow from this situation. First, it is regrettable if either sensitive information (301) or misleading and unverifiable accounts were revealed by the WikiLeaks postings. This appears to be wholesale dump of unverified information (302) on the Internet and it followed shortly after the precedent of the Bush Administration selectively declassifying abundant amounts of false intelligence information to the American public about Iraq. (303) Second, the U.S. soldier linked to the video leak of the helicopter shooting was criminally charged. (304) It is disturbing that an illegal exposure is required to publicize an alleged massacre of civilians. Unfortunately, hiding potential crimes inside the U.S. national security apparatus is not novel. (305) Third, Julian Assange is facing sexual misconduct charges, (306) which may distract public attention away from substantive national security leak issues.
The opening analytical chart distinguished among classification, selective declassification, authorized leaks, and unauthorized leaks. While each type will have disparate value to public discourse, New York Times Co. affirms that the press has a general right to disseminate classified information upon receipt. If information undermines national security and is less relevant to the public, then publication and the chain of custody may be called into question. Branzburg affirms that a journalist will be required to reveal a confidential source if court proceedings require the source. (307) The bearer of classified information is frequently a confidential source. Sources violating secrecy oaths, particularly in combination with Espionage Act applicability, make prosecutions of the sources possible. Prosecutions of intermediaries and journalists for disseminating classified information seem less likely since their legal obligations are held to a lower standard. Raising those standards on journalists seems possible with bills currently pending in Congress. (308)
The final section details the perduring controversy involving former Ambassador Joseph Wilson, Valerie Plame, Judith Miller, and White House officials that invoked general overlap among legal principles and brought reporter privilege questions to the forefront of public attention. The Ninth Circuit in Shoen v. Shoen held that "[t]he journalist's privilege is designed to protect investigative reporting," (309) and that is assuredly not the substance of this drama. Moreover, the context, the type of intelligence, and the news value of the rumpus bear a counterintuitive outcome.
RECENT HIGH-PROFILE PRECEDENT
Former Ambassador Joseph Wilson traveled discreetly to Niger on behalf of the CIA in 2002 to investigate an allegation that Niger sold raw uranium to Iraq, which would have been proscribed under U.N. Security Council resolutions. (310) After meeting with officials for several days, Wilson provided what he believed were explicit conclusions that no said transaction occurred. (311) While it is not entirely evident if the White House received, slighted, or simply ignored Wilson's conclusions, (312) the question of whether notice was absolutely received might have been inconsequential if circumstantial logic was employed. It should have seemed implausible that a five hundred ton uranium sale could have been skulked passed both the French and Nigerian officials who controlled the mines, transported from the middle of Africa on "twenty five hard to conceal ten-ton tractor-trailers," loaded onto an oceangoing freighter, and delivered to militarily-quarantined Iraq without a record trail or notice. (313) Instead, President Bush tweaked the accusation for the January 2003 State of the Union address by maintaining that Iraq attempted to procure uranium from Africa and by also referencing British intelligence. (314) Another problem with the claim was that to engender a tangible threat, raw uranium would have required ten years to enrich and weaponize, but there was no evidence of an active nuclear enrichment facility in Iraq. (315)
After the invasion of Iraq, Wilson served as a whistleblower by writing an op-ed in The New York Times that contended the Bush Administration distorted the facts about the alleged sale. (316) A week later, Robert Novak wrote an article revealing that Valerie Plame, Wilson's wife, is a CIA "operative on weapons of mass destruction," and that "[t]wo senior administration officials" informed him that Plame had arranged for the trip. (317) Other articles also reported that she had been a covert CIA operative. (318)
The CIA investigated and determined that the leak was a "possible violation of criminal law concerning the unauthorized disclosure of classified information" under the controversial (319) Intelligence Identities Protection Act of 1982, which prohibits revealing the identity of covert agents. (320) The CIA, whose political boss was Bush's National Security Council, (321) referred the case to the Department of Justice. Attorney General John Ashcroft appointed Patrick Fitzgerald as Special Counsel to investigate the source of the leak. (322) Fitzgerald's investigation unfolded and situated The New York Times reporter Judith Miller at the center of the probe, though she never publicized Plame's identity and was only a third-party intermediary to the leak. (323) Her involvement elicited questions of journalist complicity in wrongdoing (324) and discord over whether a common law reporter's privilege for confidential sources should be recognized. (325) The court ordered Miller to reveal her anonymous source, but she refused and spent eighty-five days in jail for being in contempt of court. (326) Similarly, Matthew Cooper was also held in contempt of court for failing to disclose his source's identity, Karl Rove, but he subsequently cooperated and avoided incarceration. (327)
OUTCOME AND COGNITIVE IMPACT
Professor Richard Kielbowicz summates the context when he states that the Plame "leak itself targeted a George W. Bush [A]dministration critic, while the ensuing probe to ferret out the unnamed sources was partly actuated by CIA and White House officials jockeying to blame each other for intelligence failures." (328) The particulars were complex, but the fundamental issues beyond the identity leak (329) were accusations over intelligence failures, Wilson's contention that the Bush Administration "had purposely misled" the public about Iraq, and that some anonymous White House official retributively leaked his wife's name, thereby endangering her life. (330) The first sub-issue implicated Plame's most recent CIA activities.
In fall 2001, CIA Director Tenet appointed Plame to head a new unit called the Joint Task Force on Iraq ("JTFI"). (331) The JTFI's mission was to "target Iraqi scientists" and track "down relatives, students and associates of Iraqi scientists--in America and abroad--looking for potential sources" with data about Iraq weapon programs. (332) Consequently, the JTFI was one intermediary sub-agency within the intelligence information chain. The JTFI collected data from Iraqi defectors, provided the ultimately false accounts to intelligence analysts, analysts dispensed specious estimates to the Bush Administration, and the Bush Administration furnished fallacious statements to the public. (333)
In its investigation of circumstances preceding JTFI formation, the SSCI found that from 1991 to 1998, the Intelligence Community ("IC") was almost wholly reliant on UN inspections for its intelligence, which meant the IC lacked sources after UN inspections ceased. (334) When those UN activities concluded in 1998, inspectors did not have evidence that prohibited weapons existed and they believed that Iraq had been successfully disarmed. (335) The SSCI also found that there was no "direct" evidence of WMD programs in Iraq, which was consistent with what UN weapons inspectors kept reaffirming in their updates to the Security Council during the four months of renewed investigations immediately prior to the March 2003 attack. (336) The expanse between the lacking evidentiary foundation and the public allegations suggests that the JTFI performance could have been a product of anteceding rhetoric.
Starting in early September 2002, Bush Administration officials began to saturate the global media with claims about WMDs, and Bush addressed the UN General Assembly about dangers from Iraq. (337) The SSCI discovered that, largely after this address, "Iraqi defectors were showing up at Western embassies claiming they had information on Saddam's WMDs." (338) It seems odd that a government sub-agency would be impaneled to gather evidence to support the nonexistence of WMDs, and even odder to expect that Iraqi exiles, who assumably opposed Hussein's regime, would appear to provide evidence to rebut what Bush Administration officials were unequivocally stating in the global media. (339) The circumstance seems more analogous to making a public call for plaintiffs in a class-action lawsuit.
In short, every individual, Wilson, Plame, Miller, and Bush Administration officials, and each of the agencies, the CIA and the corporate media generally, had some involvement, for better or worse, in false claims about Iraq being disseminated to Americans. The Bush Administration made hundreds of patently false statements about security threats based on predisposed sources and questionable CIA analytics. (340) The American media performed abysmally by accepting allegations at face value, (341) and it was largely disinterested in scrutinizing the underlying core issues of false claims in the context of leaks, even though this is what seemingly caused the confidential source leak issue to develop. The Plame leak case instead shifted discourse away from these issues and permitted the media to portray itself as conscientious, while concomitantly extrapolating the factually limited context into copious hazards of prosecuting leaks. (342) It enthusiastically criticized the Bush Administration on the leak issue, while advocating unsuccessfully to protect journalist prerogative in maintaining secrecy for confidential sources when ordered by a court. (343) The media dramatized that the Bush Administration was "waging a war on the press" (344) and "threaten[ing] to prosecute journalists for espionage." (345) The media dubbed the events with titles such as "Plamegate," (346) a "Worse than Watergate" (347) scandal that "Turns D.C. Upside Down." (348) Unfortunately, Special Counsel Fitzgerald was portrayed as obsessively pursuing journalists, (349) with The New York Times editorials even adducing that there was "grievous harm to freedom of the press" as an aftermath of his investigation. (350) Referring to The New York Times editorial that claimed Miller's incarceration was equivalent to the "civil disobedience" acts of civil rights leaders Rosa Parks and Dr. Martin Luther King, Jr., Professor Randall Eliason offered a more realistic portrayal and called the analogy "deeply misguided." (351)
Judith Miller became the exemplar persecuted journalist, despite the fact that she was not the one who revealed Plame's identity publicly. However, she was involved during the pre-invasion period with the more pertinent, yet supplanted, issues. Professor William Lee wrote "Miller was viewed favorably within the White House because of her pre-Iraq war reporting on Iraqi weapons of mass destruction." (352) Raising validity concerns akin to those tendered in the introductory analytical framework, Miller emphasized that protecting confidential sources is essential to exposing "allegations of fraud or abuse or other wrongdoing," (353) but also that it was not a reporter's role to assess the validity of "intelligence." (354) Miller stated, "My job isn't to assess the government's information and be an independent intelligence analyst myself. My job is to tell readers of The New York Times what the government thought about Iraq's arsenal." (355) There was no arsenal, and as Professor Jonathan Mermin wrote, "The truth or falsity of the government's position was evidently not her concern." (356)
Ergo, Miller's involvement in this mess should also represent the dangers of journalists portraying intelligence information uncritically, presenting unverified intelligence as fact, and unheedingly using confidential and self-interested sources. (357) In addition to sourcing with intelligence that was ultimately false, Miller held a close relationship with the controversial Iraqi exile Ahmed Chalabi. (358) She even acknowledged that Chalabi "provided most of the front page exclusives on WMD to our paper." (359) According to a senior editor at The New York Times, such past heavy reliance on "Chalabi as a source" was one reason for not correcting mistakes or "writ[ing] too critically about him." (360) The New York Times wrote, "Complicating matters for journalists, the accounts of these exiles [who desired regime change] were often eagerly confirmed by United States officials convinced of the need to intervene in Iraq. Administration officials acknowledge that they sometimes fell for misinformation from these exile sources." (361) "Fell for" may be a discrepant characterization. The SSCI devoted a 208-page report to dissenting Iraqis who were sponsored and funded with U.S. taxpayer dollars to promulgate the allegations in the media. (362)
As for the precedent that should be gleaned from the Plame leak chronology, based on a general balancing of rights employed by courts in First Amendment national security cases, there is no distinct or heighted public value in knowing the name of a former covert operative, the operative's right violation is elevated, and the leak was ostensibly a crime. While the Bush Administration was vigorously attempting to prevent leaks, White House officials were being investigated for leaking Plame's identity. (363) The president, both legally and by application, has a rather unchecked and encompassing control over classifying and declassifying national security information, (364) but the case may have impressed that the president lacks inclusive province over the intelligence apparatus and can also be held responsible for breaching secrecy laws. Revealing an agent's identity, given individual privacy interests and rights at stake, is perhaps realistically the only national security law that any top official could violate, assuming the president does not grant a pardon.
I. Lewis Libby authorized Miller to reveal that he was the source who disclosed Plame's identity, and she was released from jail when she agreed to testify that Libby was her confidential source. (365) Libby was convicted of perjury and obstruction of justice (committed during the investigation) and sentenced to two and a half years in prison. (366) In July 2007, hours after a panel of judges stated that Libby should begin serving the sentence, Bush claimed the penalty was "excessive" and granted clemency. (367) Also, Libby was not even charged with violating the IIPA. Libby testified that he did not believe the information was classified (368) and the prosecution admitted that no evidence was provided for "specifically proving" that Libby was aware that Plame's identity was classified as a covert agent under the Act. (369) Likewise, Robert Novak, who first revealed Plame's identity as a covert agent, contended "it was well-known around Washington that Wilson's wife worked for the CIA" and that "her name ... was no secret." (370) The investigation was unending cognitive mayhem (371) that provided the media with abundant opportunities to ballyhoo unwavering support for upholding confidential source privileges while ignoring the negative public value that can often be contained in the substantive content provided by confidential sources.
The opening analytical chart demonstrated varying possibilities for the intelligence information flow from source to public dissemination. The frequently-arising discord between using secrecy to most effectively maintain national security and presuming that free flow of government information sustains democracy assuredly contours high-profile cases and distinct constitutional considerations, but asymmetries complicate assessing the intrinsic value of the substantive message on daily press affairs. To investigate how legal parameters can impact a confidential source's decision to come forward and media practice in choosing to use confidential sources and classified data, the chart employed two variables--validity of secret/asymmetric data and information flow processes.
For validity, unlike court processes in which judges render decisions by applying rules to publicly available and verified evidence, Intelligence Community analysts adduce threat estimates by applying decision-making criteria to secret information. If data are incorrect, unsubstantiated, and/or speculative; analysts apply faulty data or do not conscientiously render estimates; and/or an executive revels in threat embellishment; national security processes lack credibility and the government can defraud, mislead, or propagandize the public. (372) Scholars disagree on the specifics, but some combination of these factors caused the informational deficits that preceded the Iraq War. (373) In assessing the chart's process variable, national security information can reach the public via declassification, partial declassification, authorized leak, or unauthorized leak. Applying legal frameworks and practical considerations reveal latent dangers in substance and process that may only be navigable by scrutinizing the disseminated classified material post facto, making ex ante favoritism for either disclosure or secrecy inappropriate.
At one extreme, one could categorically endorse "leaks" and partial declassification by asserting that doing so protects the free flow of information to the public. However, if a leak, which could originate from one anonymous source, is not accurate, valuable to public discourse, (374) or would misinform, (375) the press is not veritably asserting constitutional free flow interests on behalf of three hundred million Americans to reveal accurate and enlightening information, but rallying around the flag of shielding secret sources and fighting for the right to reveal what anonymous sources choose to leak. The government does not affirmatively corroborate or accept responsibility for either authorized on unauthorized leaks, (376) and partially declassified information may be misleading. (377) Moreover, fully embracing the legality of leaks throughout the information pipeline--rather than the normal practice of overlooking the source's violation and protecting the message from media to public via The New York Times (378)--would technically obviate the source's national security secrecy obligations. With no legal restriction on or possibility of punishment for the source's leak, more authority and discretion is ostensibly transferred to journalists and editorial staffs even though they may have no greater expertise to assess the credibility of a national security issue than the general public. Dropping prohibitions may lower the level of conscientious decision-making of both the source, in choosing to come forward, and the journalist, in deciding to publish.
At the other hypothetical extreme, if all leaks were forbidden with restrictive enforcement on sources, intermediaries, and recipient reporters, then the public would only receive officially declassified national security information. A source could expect that disseminations in breach of secrecy oaths, contractual promises, and criminal laws (379) would be enforced. The "game of leaks" would cease; government officials would be unable to use anonymous, responsibility-avoiding, authorized leaks; and reporters would be unable to protect anonymous sources or avoid responsibility if the source's information is false. American news might not be sourced with labels, such as "unnamed White House sources," "anonymous sources," "intelligence officials," and "CIA officials." (380) Washington Post reporter Michael Kinsley refers to these practices as the "cult of the anonymous source." (381) While reducing over-reliance on anonymous sourcing in news is feasible and probably desirable, restricting unauthorized disclosures after information reaches a journalist is a form of prior restraint, (382) and could undesirably diminish protection for whistleblowers who feel compelled to reveal government wrongdoing or other valuable discourse that is hidden in classified information. (383)
The first hypothetical extreme would be marvelous to protect unauthorized leaks from legitimate whistleblowers bearing high-value information, and the second extreme would be magnificent for plugging authorized leaks and executive abuse of the national security apparatus. However, secret data has unknown value and cannot be adjudged to neatly fit into this ensample before publication. Instead the tussle between the two institutional frameworks--the national security restrictions and First Amendment free flow principles--reverts to news organizations' policies, journalist ethical standards, and daily discretionary decisions to use confidential sources and publish still-classified information. The New York Times Co. case favors not restricting public dissemination when a journalist has already-obtained classified information (384) even though the media has no affirmative right to obtain classified information (385) and stiffer penalties and additional restrictions have since been adopted for sources disseminating classified information since the New York Times Co. holding. (386) Presumably, when national security information flows to the journalist, media organizations assess the substantive value based on contextual risks. Risks derive from the executive branch's particular control over classification, declassification, and the perceived extent to which leaks will be strictly prohibited. Journalists and sources may have more forewarning that leaks may be investigated and possibly punished when it is unauthorized, rather than authorized, and when the disclosure shifts the balance away from elevated value to public discourse and toward greater harm to U.S. national security, particularly if Espionage Act applicability is foreseeable. (387)
The reporter's privilege question represents the risk of using confidential sources when legal proceedings may require the source. United States v. Rosen involved the question of whether intermediaries receiving classified information from a source, who may have committed a crime by leaking classified information, will be investigated. From Rosen, it appears that the "leaker" is the risk-taker and could be investigated and penalized for an unauthorized disclosure of classified material, while the recipient-journalist is apt to be constitutionally protected if that classified information is disseminated to the public. (388) However, if court proceedings do require the source and the journalist strictly adheres to the promise of confidentiality and intractably shields the source's identity, the journalist may seem like the risk taker. (389) This possibility raises the situation that assuredly garnered much media attention.
The direct catalyst to the Plame, Miller, and Libby affair involved a breach of classified information that was not important to public discourse. It involved a violation of the Intelligence Agent Identities Act. As an intermediary to the leak, journalist Judith Miller was incarcerated for violating a court order to maintain source confidentiality, (390) but the irony is that Miller provided false accounts about Iraq, often due to reliance on confidential sources, (391) thereby reaffirming predicaments with anonymity and secrecy. Moreover, Miller was asserting a press privilege to predicate the right to protect anonymous sources for journalism generally, while on the facts she was advancing a right to protect White House officials from scrutiny on a possible criminal law offense. It would be toilsome to contrive a more convoluted scenario that distracts attention from more pertinent interactions among the integrity of government discourse, public need, press obligations, and reporter's privilege. To compellingly maintain that journalism requires greater protection to obviate all risk for its discretionary decisions on whether to use confidential sources, one should be able to substantiate that the resulting benefit of granting that protection outweighs possible harm. Journalism organizations have been advocating to members of Congress for years to pass a federal shield law, (392) but it is not clear that today's corporate media performs in a way that epitomizes what the Framer's intended by the Press Clause in order to check government, or that the media's virtues luculently outweigh its role as government lapdog. (393)
* ROBERT BEJESKY
* M.A. Political Science (Michigan), M.A. Applied Economics (Michigan), L.L.M. International Law (Georgetown). The author has taught courses in International Law at Cooley Law School and for the Department of Political Science at the University of Michigan, courses in American Government and Constitutional Law at Alma College, and courses in Business Law at Central Michigan University and the University of Miami. The author would like to thank Kyle Teal and Adam Friedman for their leadership and assistance during the production phase, and Andrew Abel, David Bauer, Janelly Garcia, Lauren Kearney, AnnaMarie Mitchell, and the other editors at St. Thomas Law Review who worked on this article for their excellent comments and punctilious footnote work.
(1.) Houchins v. KQED, Inc., 438 U.S. 1, 9, 14 16 (1978); Robert A. Sedler, The Media and National Security, 53 WAYNE L. REV. 1025, 1035 (2007); Jonathan D. Varat, Deception and the First Amendment: A Central, Complex, and Somewhat Curious Relationship, 53 UCLA L. REV. 1107, 1133 (2006).
(2.) See HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR 201 (1990) ("[T]he National Security Constitution requires that the public, as well as Congress, receive as much information as is necessary to evaluate the wisdom and legality of executive conduct."); Mark A. Chinen, Secrecy and Democratic Decisions, 27 QUINNIPIAC L. REV. 1, 1 (2009) ("Protective secrecy itself is controversial because it seems inimical to democracies, where open discussion and accountability serve as touchstones.").
(3.) H.R. REP. NO. 89-1497, at 11 (1966); see also Freedom of Information Act, 5 U.S.C. [section] 552 (2009).
(4.) N.Y. Times Co. v. United States, 403 U.S. 713,724 (1971) (Douglas, J., concurring).
(5.) Potter Stewart, Or of the Press, 50 HASTINGS L.J. 705,710 (1999).
(6.) Detroit Free Press v. Ashcroft, 303 F.3d 681,683 (6t7uh Cir. 2002).
(7.) See infra notes 18-23, 43, 49 and accompanying text; see also MARK M. LOWENTHAL, INTELLIGENCE: FROM SECRETS TO POLICY 73 (3d ed. 2006) (discussing how classification is the protection of sources and methods).
(8.) See Robert Bejesky, Intelligence Information and Judicial Evidentiary Standards, 44 CREIGHTON L. REV. 811,812,875-82 (2011)
(9.) See SEN. SELECT COMM. ON INTELLIGENCE, 108TH CONG., REP. ON THE U.S. INTELLIGENCE CMTYS. PREWAR INTELLIGENCE ASSESSMENTS ON IRAQ 185 (2004) [hereinafter SSCI/2004] (discussing Iraq's biological warfare program and its impact on policy makers and public health activity); Lori Fisler Damrosch, War and Uncertainty, 114 YALE L.J. 1405, 1406-08 (2005) (examining congressional ability to use classified information in making war decisions).
(10.) See Michael A. Fitts, Can Ignorance Be Bliss? Imperfect Information as a Positive Influence in Political Institutions, 88 MICH. L. REV. 917, 965-69 (1990); W. Robert Reed, Information in Political Markets: A Little Knowledge Can Be a Dangerous Thing, 2 J.L. ECON. & ORG. 355, 356-57 (1989).
(11.) See Bejesky, supra note 8, at 875-82; Robert Bejesky, Politico-International Law, 57 LOY. L. REV. 29, 70, 76-80 (2011) (examining how information asymmetry can sire random opinions); Dale Carpenter, The Antipaternalism Principle in the First Amendment, 37 CREIGHTON L. REV. 579, 647-49 (2004). Even if officials endeavor to be objective, intelligence information may be speculative, and unverified or inaccurate intelligence information may be declassified. Bejesky, supra note 8, at 875-82. Government can restrict the free flow of ideas by making claims based on information that it does not have requisite competence to accurately adjudge. Id. Another hybrid possibility is that policymakers and the public might have heightened opportunity to assess the accuracy of an estimate if sufficient portions of information undergirding the false estimate are released. Carpenter, supra, at 647-49.
(12.) See Gia B. Lee, Persuasion, Transparency, and Government Speech, 56 HASTINGS L.J. 983, 1023-24 (2005); see also infra Parts III-V. The possibility of ill-intention is raised because an official with authority could have declassified. Lee, supra, at 1023-24. Additionally, anonymous communications are generally disfavored because they raise political accountability concerns. Id.
(13.) See Elletta Sangrey Callahan & Terry Morehead Dworkin, The State of State Whistleblower Protection, 38 AM. BUS. L.J. 99, 100 (2000) (stating whistleblower protections were adopted in fifty states in order "to expose, deter, and curtail wrongdoing"); infra Part V.A--B; see also Robert Bejesky, Currency Cooperation and Sovereign Financial Obligations, 24 FLA. J. INT'L L. 91, 132-37 (2012). There may also be misdeeds hidden in government documents that may be of high public utility, but for whatever reason, the information can remain classified for decades. Bejesky, supra, at 132-37.
(14.) See infra Part VI.D.
(15.) See infra Parts II., VI.D.2. Alternatively, there may even be a higher probability that the journalist is taking a risk for an inadequately sourced story since an unauthorized source is not providing an official government position. Id.
(16.) SeeS.315,112thCong.(2011),available at http://www.govtrack.us/congress/billtext.xpd?bill=s112-315; H.R. 703, ll2th Cong. (2011), available at http://www.govtrack.us/congress/billtext.xpd?bill=h112-703; S. 4004, 111th Cong. (2010), available at http://thomas.loc.gov/cgi-bin/query/z?c111:S.4004:; H.R. 6506, 11lth Cong. (2010), available at http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.6506:.
(17.) See Louis Fisher, Extraordinary Rendition: The Price of Secrecy, 57 AM. U. L. REV. 1405, 1441 (2008).
(18.) See Classified Information Procedures Act, 18 U.S.C. app. 3 [section][section] 1, 9, 14 (2012) (defining "classified information" and setting forth executive control over both classification and disclosure restrictions); Exec. Order No. 12968, 60 Fed. Reg. 151, 40,245 (Aug. 2, 1995) (setting forth a uniform personnel security program for any employee who would have access to confidental information by President Clinton); Exec. Order No. 12958, 60 Fed. Reg. 76, 19,825 (Apr. 17, 1995) (establishing a uniform guide on classifying, safeguarding, and declassifying national security information by President Clinton); Letter from John Ashcroft, U.S. Attorney Gen., to J. Dennis Hastert, Speaker of the House of Representatives (Oct. 15, 2002) (on file with the the Federation of American Scientists) [hereinafter Ashcroft Letterl, available at http://www.fas.org/sgp/othergov/dojleaks.pdf (showing how the Bush administration intensified its emphasis on both controlling information and punishing unauthorized disclosure); see also Dep't of the Navy v. Egan, 484 U.S. 518, 527 (1988) (explaining the president's role as commander in chief, which includes the duty to safeguard sensitive information); Cafeteria & Rest. Workers Union v. McElroy, 367 U.S. 886, 890 (1961) (explaining the military powers vested in both Congess and the president); Totten v. United States, 92 U.S. 105-07 (1875) (holding that a contract made between an individual and the president is unreviewable in court when there is a risk confidential information will be disclosed). See generally Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (noting that the U.S. government has a compelling interest in preserving information that is important to national security); United States v. Robel, 389 U.S. 258, 267 (1967) (recognizing that spies exist and stating that the U.S. Constitution does not forbid the government from protecting its vital secrets); United States v. Reynolds, 345 U.S. 1, 10 (1953) (reviewing the U.S. government's right to assert a "claim of privilege" at trial); United States v. Anderson. 872 F.2d 1508, 1514 (11th Cir. 1989) (reviewing the history and purpose of the Classified Information Procedures Act, which ultimately established a procedural framework for admitting classified information into court); United States v. Collins, 720 F.2d 1195, 1197 (11th Cir. 1983) (explaining the Classified Information Procedures Act regulations for court proceedings that involve classified information); El-Masri v. Tenet, 437 F. Supp. 2d 530, 535-37 (E.D. Va. 2006) (noting that the president's privilege claim is strong due to "the Executive Branch's preeminent authority over military and diplomatic matters"); United States v. Lopez-Lima, 738 F. Supp. 1404, 1407 (S.D. Fla. 1990) (explaining the procedural framework that was set forth by the Classified Information Procedures Act); CHALMERS JOHNSON, THE SORROWS OF EMPIRE 11 (2004) (describing how the Central Intelligence Agency has become the president's private army for secret projects); Douglas Jehl, New C.I.A. Chief Tells" Workers to Back Administration Policies, N.Y. TIMES (Nov. 17, 2004), http://www.nytimes.com/2004/11/17/ politics/17intel.html (quoting a memo by the C.I.A. director that reminded C.I.A. employees to "scrupulously honor our secrecy oath").
(19.) See Exec. Order No. 13292, 68 Fed. Reg. 60, 15,315 (Mar. 25, 2003) (requiring standards for information that "reasonably could be expected" to harm national security).
(20.) See Halperin v. Kissinger, 606 F.2d 1192, 1204 n.77 (D.C. Cir. 1979) (noting that revealing all top secret documents may not endanger national security because there is a welldocumented practice of classifying "relatively innocuous or noncritical information"); JAMES BAMFORD, BODY OF SECRETS 516-17 (2001) (noting that every year, approximately sixty million pounds of classified documents are stamped "Top Secret," and are then tansported to a secure warehouse, eighty percent of which comes from the National Security Agency); see also U.S. GOV'T ACCOUNTABILITY OFF., LCD-81-13, OVERSIGHT OF THE GOVERNMENT'S SECURITY CLASSIFICATION PROGRAM SOME IMPROVEMENT STILL NEEDED 14 (1980), available at http://www.gao.gov/assets/140/131343.pdf ("[The Security Agency's] classification activity is probably greater than the combined total activity of all other components and agencies of the Government."); Louis Henkin, The Right to Know and the Duty to Withhold. The Case of the Pentagon Papers, 120 U. PA. L. REV. 271, 277-80 (1971) (recognizing the problem of overclassification and the dangers of revealing classified information).
(21.) Mary-Rose Papandrea, Lapdogs, Watchdogs, and Scapegoats: The Press and National Security Information, 83 IND. L.J. 233, 240 (2008); see David A. Anderson, Freedom of the Press in Wartime, 77 U. COLO. L. REV. 49, 51 (2006) ("[The government's] control of press access to information has become the principal means by which the government manipulates public opinion about war."); see also William E. Lee, Deep Background." Journalists, Sources, and the Perils of Leaking, 57 AM. U.L. REV. 1453, 1457-59 (2008); Brian Logan Beirne, Note, George vs. George vs. George: Commander-in-Chief Power, 26 YALE L. & POL'Y REV. 265, 294-95 (2007) (noting that historically, presidents have restricted dissemination of classified information to Congress). The 2007 Scooter Libby prosecution could be interpreted to affirm the president's monopoly over classification, declassification, and criminal law enforcement standards. Lee, supra, at 1457-59.
(22.) See Chinen, supra note 2, at 31-32; Richard B. Kielbowicz, The Role of News Leaks in Governance and the Law of Journalists' Confidentiality, 1795-2005, 43 SAN DIEGO L. REV. 425, 432-33, 468 n.296 (2006) (discussing how many scholars and journalists regard leaks as executive branch political maneuvers to control the news); Papandrea, supra note 21, at 236 ("[L]eaks of classified information, including classified national security information, have become one of the primary ways the government communicates information to the public."); see also Zachary D. Streit, Note, Panel Report: Investigative Journalism and National Security, 5 CARDOZO PUB. L. POL'Y & ETHICS J. 75, 78 (2006); Georgetown Pub. Pol'y Rev., Transparency in the Media." Interview with Michael Getler, Washington Post Ombudsman, 10 GEO. PUB. POL'Y REV. 133, 137 (2004) [hereinafter Transparency in the Media] ("The national security label ... has always been easy to try and hide behind."). See generally STEPHEN HESS, THE GOVERNMENT/PRESS CONNECTION 75-78 (1984) (distinguishing several types of leaks and noting that leaks rarely come directly from the executive branch). Washington Post National Security Correspondent, Scott Armstrong, further noted that "the purpose of government secrecy is rarely to protect national security," but rather, is to "control the flow of information." Streit, supra, at 78.
(23.) See Ashcroft Letter, supra note 18, at 4 (reporting that the Bush Administration affirmed that government employees should have no access to classified information unless access is absolutely necessary for executing official duties). Jurisprudence affirms the president's prerogative to restrict access to and dissemination of classified information. See generally, e.g., Egan, 484 U.S. at 527 (explaining how the president, as commander in chief, has the constitutional authority to set parameters for who can gain access to information bearing on national security in order to protect such information); Snepp, 444 U.S. at 509 n.3 (discussing how setting parameters on access to national security information is important because the government has a "compelling interest in protecting both the secrecy of information ... and the appearance of confidentiality"); Reynolds, 345 U.S. at 10 (explaining that the protection of information is important because of the danger that "compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged"); Totten, 92 U.S. at 107 (affirming the president's prerogative to restrict access to and dissemination of classified information).
(24.) See El-Masri v. Tenet, 437 F. Supp. 2d 530, 535-36 (E.D. Va. 2006) ("[C]ourts must not blindly accept the Executive Branch's assertion [of national security] ... but must instead independently and carefully determine whether, in the circumstances, the claimed secrets deserve the protection of the privilege."); see also John Stockwell, The Secret Wars of the CIA, INFO. CLEARING HOUSE (Oct. 1987), http://www.informationclearinghouse.info/article4068.htm (highlighting remarks from a former CIA official who stated he was able to disclose his operations in South Africa and Nicaragua at the beginning of the 1980s during Reagan's Contra war, because he was required to testify to Congress, which was a competing obligation).
(25.) See El-Masri, 437 F. Supp. 2d at 536-37 (citing Reynolds, 345 U.S. at 10) (noting that courts are apt to accept the executive privilege once the claim is appropriately made); see also David C. Vladeck, Litigating National Security Cases in the Aftermath of 9/11, 2 J. NAT'L SEC. L. & POL'Y 165, 165-67 (2006) (examining the effects 9/11 had on both the president's authority to conceal information and the courts reluctance to question it); Rosa Ehrenreich Brooks, War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror, 153 U. PA. L. REV. 675, 737 (2004) (noting there is a "traditional judicial willingness to defer to government judgments on national security issues....").
(26.) Freedom of Information Act, 5 U.S.C. [section] 552 (2009); see Federal Advisory Committee Act, 5 U.S.C. [section] 552a (2012); Privacy Act, 5 U.S.C. [section] 552a (2012); Administrative Procedure Act, 5 U.S.C. [section] 553 (2012); National Environmental Policy Act of 1969, 42 U.S.C. [section] 4332(2)(C) (2012); Paperwork Reduction Act, 44 U.S.C. [section] 3501 (2002) (making certain government documents accessible to the public); Ashcroft Letter, supra note 18, at 2. See generally United States v. Nixon, 418 U.S. 683, 709-13 (1974) (affirming secrecy prerogatives of high-level executive conversations, but deciding that integrity of the judicial system outweighed the privilege on the facts); Wash. Post Co. v. U.S. Dep't of State, 840 F.2d 26, 35 (D.C. Cir. 1988) (stating that the court had to conduct a de novo review of the evidence before deciding whether to release government information to the requesting newspaper); Halkin v. Helms, 690 F.2d 977, 990 (D.C. Cir. 1982) (examining the state secrets privilege and stating that without access to the confidential information at issue, the plaintiffs would not have been able to prove injury-in-fact); Zweibon v. Mitchell, 516 F.2d 594, 604-05 (D.C. Cir. 1975) (footnote omitted) ("[A]lthough the attempt to claim Executive prerogatives or infringe liberty in the name of security and order may be motivated by the highest of ideals, the judiciary must remain vigilantly prepared to fulfill its own responsibility to channel Executive action within constitutional bounds.").
(27.) See Mark Benjamin, Despite Obama's Sunlight Order, Federal Information Often Obscured by Shadow, TIME (Mar. 14, 2011), http://swampland.time.com/2011/03/14/despiteobamas-sunlight-order-federal-information-often-obscured-by-shadow.
(28.) See 5 U.S.C. [section] 552(b)(1) (2009); Streit, supra note 22, at 86. The reviewer can choose not to release some documents under a Freedom of Information Act request and return a letter stating that it is exempt from disclosure. See [section] 552(b). Dana Priest remarks that everything seems like a secret in the intelligence world and that Freedom of Information Act requests were returned with "her own articles, stamped confidential." Streit, supra, at 86.
(29.) See 5 U.S.C. [section] 8312 (2012); 18 U.S.C. [section][section] 793-94, 797-98 (1996); 18 U.S.C. [section] 952 (1994); 42 USC [section] 2277 (1999); Snepp v. United States, 444 U.S. 507, 507-08 (1980) (stating that a standard termination secrecy agreement precludes dissemination and requires CIA approval); United States v. Morison, 844 F.2d 1057, 1060 (4th Cir. 1988); 32 C.F.R. [section] 2001.71(b)-e) (2007); ANGUS MACKENZIE, SECRETS: THE CIA's WAR AT HOME 109 (1997) (noting the widespread use of standard secrecy agreements in the U.S. government). Private company secrecy agreements imposed on employees in the private sector are also legitimate restrictions on First Amendment rights. Snepp, 444 U.S. at 509-40, 516. However, private sector restrictions can be limited in time and scope. See id at 513 n.9.
(30.) See Classified Information Procedures Act, 18 U.S.C. app. 3 [section] 6(c)-(e) (2012); 18 U.S.C. [section][section] 794, 798 (1996); Snepp, 444 U.S. at 514-15 (quoting CIA Director Colby's testimony that publicly revealing classified information would be prohibitive in a public criminal trial); James A. Goldston, Jennifer M. Granhohn & Robert J. Robinson, A Nation Less Secure: Diminished Public Access to Information, 21 HARV. C.R.-C.L.L. REV. 409, 456-58 (1986). The disclosure could theoretically preclude a public trial. See 18 U.S.C. app. 3 [section] 6. It may be difficult for the accused to use classified information to mount an affirmative defense. See e.g., United States v. Anderson, 872 F.2d 1508, 1514-15 (11th Cir. 1989); United States v. Collins, 720 F.2d 1195, 1197 (11th Cir. 1983); United States v. Lopez-Lima, 738 F. Supp. 1404, 1407-08 (S.D. Fla. 1990).
(31.) Snepp, 444 U.S. at 507-08.
(32.) Id. at 511-512. See also Matthew J. Jacobs, Assessing the Constitutionality of Press Restrictions in the Persian Gulf War, 44 STAN. L. REV. 675, 702-03 (1992) (stating that, even though the government could exhibit no specific harm from the publication of Snepp's book, the Court granted the government a "constructive trust by which all profits from the book were paid to the public treasury"); Papandrea, supra note 21, at 282 (noting CIA censors must have a prepublication review to ensure nothing compromised confidential information); Stockwell, supra note 24 (explaining Stockwell's personal experience and noting the CIA's right to strip former employees of book profits even if information is no longer classified).
(33.) Snepp, 444 U.S. at 508 (quoting Petition for Writ of Certiorari at 59a, Snepp, 444 U.S. 507 (1980) (No. 78-1871)). See also Morison, 844 F.2d at 1069 (quoting United States v. Marchetti, 466 F.2d 1309, 1317 (4th Cir. 1972)) ("[A CIA official] retains the right to speak and write about the CIA and its operations, and to criticize it as any other citizen may, but he may not disclose classified information obtained by him during the course of his employment which is not already in the public domain.").
(34.) Snepp, 444 U.S. at 508-10,516.
(35.) RESTATEMENT (THIRD) OF AGENCY [section] 8.05 cmt. c (2006) ("An agent's duty of confidentiality is not absolute.... An agent may reveal to law-enforcement authorities that the principal is committing or is about to commit a crime."); Seth F. Kreimer, Rays" of Sunlight in a Shadow "War"." FO1A, The Abuses" of Anti-Terrorism, and the Strategy of Transparency, 11 LEWIS & CLARK L. REV. 1141, 1146 (2007). For over forty years, the Freedom of Information Act has been strengthened by the addition of whistleblower protection and the implementation of "a network of Inspectors Generals" inside government agencies seeking to ensure integrity and prevent government wrongdoing. Kreimer, supra, at 1146.
(36.) See generally infra notes 124 (discussing how employees, including whistleblowers, generally do not have first amendment rights and must have authorized individuals speak with the media or high-ranking officials when it concerns classified information in order to combat unauthorized disclosures), 126 (assaying the balance between whistleblower protection laws and the threat of national security secrecy leaks), 131-33 (noting the president's authority over secrets and classified information regarding detainees and terrorism and how such authority lacks oversight in the form of whistleblowing), 145-46 (discussing how the White House promotes the urgency of keeping information from getting leaked and discourages government whistleblowers); infra Part VI.D.2 (discussing a variety of leakers and/or whistleblowers who were prosecuted or investigated). The CIA is an executive branch agency, but the CIA's foremost statutory obligation, as codified in the 1947 National Security Act, is to provide policymakers with accurate, objective, and timely information that is independent of political considerations. See National Security Act of 1947, Pub. L. No. 80-253, 61 Stat. 495 (1939-1947). To depict competing obligations, after the invasion of Iraq, anonymous CIA officials began to leak that they had given information to the White House that discredited some allegations, which implied that the Bush Administration was not accurately representing information to the public. Bejesky, supra note 8, at 833-35. Shortly after CIA Director George Tenet resigned and Porter J. Goss was appointed CIA director, The New York Times published Goss's internal staff memo, which stated, "[Our job is to] support the administration and its policies in our work. As agency employees, we do not identify with, support or champion opposition to the administration or its policies." Jehl, supra note 18.
(37.) See infra note 168 and accompanying text
(38.) See Bejesky, supra note 11, at 91.
(39.) See id. at 91-92.
(40.) See id. at 91.
(41.) See id. See generally infra notes 89-91 (discussing the Reagan Administration's elaborate regulations, implemented to shield information and other privacy of communication issues related to terrorism). Dr. Anne Cahn, who served on the Arms Control and Disarmament Agency, explains that every weapon system they hypothesized was wrong and the report was "all a fantasy." See Bejesky, supra note 11, at 92.
(42.) The Power of Nightmares, Part II." The Phantom Victory (BBC 2 television broadcast Oct. 27, 2004), available at http://www.informationclearinghouse.info/video1038.htm.
(43.) See Mark Silva, Cheney Won't Tell How Much He Keeps Secret, SEATTLE TIMES (Apr. 30, 2006), http://seattletimes.nwsource.com/html/nationworld/2002962226_cheney30.html. More than any other administration in history, the Bush Administration overwhelmingly increased the number of documents classified as either "top secret," "secret," or "confidential," including by reclassifying information that has been available for years. Id.
(44.) See Bejesky, supra note 8, at 875-77.
(45.) Charles Lewis & Mark Reading-Smith, False Pretenses, THE CENTER FOR PUBLIC INTEGRITY (Dec. 12, 2011), http://www.iwatchnews.org/2008/01/23/5641/false-pretenses; Study." "False Pretenses" Led U.S.toWar,CBSNEWS(Feb.11,2009), http://www.cbsnews.com/stories/2008/01/23/national/main3741706.shtml; Study: Bush, Aides Made 935 False Statements in Run-up to War, CNN POLITICS (Jan. 23, 2008), http://articles.cnn.com/2008-01-23/politics/bush.iraq_l_intelligence-flaws-iraq-and-al-qaeda-study?_s=PM:POLITICS.
(46.) See generally SEN. SELECT COMM. ON INTELLIGENCE, 110TH CONG., REPORT ON WHETHER PUBLIC STATEMENTS REGARDING IRAQ BY U.S. GOVERNMENT OFFICIALS WERE SUBSTANTIATED BY INTELLIGENCE INFORMATION (2008) [hereinafter SSCI/2008], available at http://intelligence.senate.gov/080605/phase2a.pdf (assessing "whether public statements and reports and testimony regarding Iraq by U.S. government officials made between the Gulf War period and the commencement of Operation Iraqi Freedom were substantiated by intelligence information" and comparing intelligence findings with Bush Administration phrasing in a few speeches); Bejesky, supra note 8, at 812, 875-82 (discussing how the Bush Administration led the country into war "under false pretenses").
(47.) Joby Warrick & Walter Pincus, Bush Inflated Threat From Iraq's Banned Weapons, Report Says, WASH. POST (June 6, 2008), http://www.washingtonpost.com/wpdyn/content/article/2008/06/05/AR2008060501523.html; SEN. SELECT COMM. ON INTELLIGENCE,PressRelease of IntelligenceCommittee, http://intelligence.senate.gov/press/record.cfm?id=298775 (last visited Feb. 13, 2012).
(48.) SEN. SELECT COMM. ON INTELLIGENCE, supra note 47.
(49.) SSCI/2008, supra note 46, at 92; see Garcetti v. Ceballos, 547 U.S. 410, 421-22 (2006) (stating that government employee speech can be controlled since the government employer "commissioned or created" it); Robert Bejesky, Weapon Inspections Lessons Learned." Evidentiary Presumptions and Burdens of Proof, 38 SYRACAUSE J. INT'L L. & COM. 295, 306-07 (2011) (discussing the Bush Administration's restrictions and threat of prosecution); Mark Fenster, The Opacity of Transparency, 91 IOWA L. REV. 885,900-01 (2006) (stating that military analysts denounced strict classification procedures, and contended that intense restrictions may undermine democracy).
(50.) Lee, supra note 21, at 1458.
(51.) Papandrea, supra note 21, at 253.
(52.) 10 Questions for Bill Keller, TIME, (July 20 2009), http://www.time.com/time/magazine/ article/0,9171,1909597,00.html.
(53.) See Bejesky, supra note 8, at 875-82; Bejesky, supra note 11, at 32-35, 47-53, 91-95 (discussing the embellishment of international and domestic threats); Robert Bejesky, Press Clause Aspirations and the Iraq War, 48 WILLIAMETTE L. REV. 343, 348-63 (2012) (analyzing the Bush Administration's manipulation of press coverage).
(54.) See Bejesky, supra note 49, at 303-10; Bejesky, supra note 8, at 820-21.
(55.) Michael R. Gordon & Judith Miller, Threats and Responses: The Iraqis; U.S. Says Hussein Intensifies Quest for A-Bomb Parts, N.Y. TIMES (Sept. 8, 2002), http://www.nytimes.com/2002/09/08/world/threats-responses-iraqis-us-says-hussein-intensifies-quest-for-bomb-parts.html.
(56.) See Bejesky, supra note 49, at 308-10 (recalling statements made by multiple White House officials regarding the report).
(57.) See President George W. Bush, Address to the United Nations (Sept. 12, 2002) (transcript available at http://edition.cnn.com/2002/US/09/12/bush.transcript).
(58.) See SSCI/2004, supra note 9, at 417; see also Bejesky, supra note 8, at 822, 824-25 (discussing how scientists issued a report explaining why the tubes in the allegation were not appropriate for a nuclear weapon). The Department of Energy rejected the allegation with solid reports. SSC1/2004, supra, at 417.
(59.) Iraq and the Media. A Critical Timeline, FAIRNESS AND ACCURACY IN REPORTING (Mar. 19, 2007), http://www.fair.org/index.php?page=3062 ("If some U.S. officials are right, Iraqi engineers and scientists are in a race with time. Deep underground in the Salman Pak, Samarra and Tuwaitha complexes near Baghdad, they are thought to be developing biological, chemical and nuclear weapons and perfecting ways to deliver them.") (hereinafter FAIRNESS); e.g., Bejesky, supra note 49, at 365-66, 366 n.349 (listing Bush Administration quotes that urged immediate action).
(60.) Bejesky, supra note 8, at 837-38, 840.
(61.) See id. at 837-39 (finding that Curve Bali's credibility should have been questioned from the start and should not have been heavily relied upon).
(62.) Id. at 864.
(63.) Id. at 865.
(64.) Id. at 865 n.380 (finding al-Libi's unverified accounts to form the basis for many Bush Administration warnings, including a statement that an attack on the U.S. by Iraq was over ninety percent likely).
(65.) Michael Isikoff & Mark Hosenball, Al-Libi's Tall Tales, INFO. CLEARING HOUSE (Nov. 10, 2001 ), http://www.informationclearinghouse.info/article 10956.htm (describing a Newsweekobtained document that showed al-Libi's stories had been recanted, while those same stories were the origin of several government warnings).
(66.) See Bejesky, supra note 11, at 92-93 (describing how the Attorney General had claimed there was a strong terrorist presence in the America, when a few years later it was learned that only one person had been convicted on terrorist claims).
(67.) The Power of Nightmares, Part III: The Shadows in the Cave (BBC 2 television broadcast Nov. 3, 2004), available at http://www.informationclearinghouse.info/video 1040.htm.
(69.) Id. See generally Padilla v. Rumsfeld, 352 F.3d 695, 699-701 (2d Cir. 2003) (discussing the series of the events leading up to Padilla's interrogation and detention as an enemy combatant).
(70.) 'Countdown with Keith Olbermann' (MSNBC television broadcast Jan. 30, 2009) (transcriptonfilewithMSNBC),availableat http://www.msnbc.msn.com/id/28976676/ns/msnbc_tv-countdown_with_keith_olbermann/#.
(71.) Curt Anderson, Tape of Padilla Interrogation is Missing, USA TODAY (Mar. 9, 2007), http://www.usatoday.com/news/washington/2007-03-09-padilla-tapes_N.htm ("Prosecutors and the Pentagon have said they cannot find the tape despite an intensive search.").
(72.) See Bejesky, supra note 11, at 91-95.
(73.) See 'Countdown with Keith Olbermann' (MSNBC television broadcast Aug. 21, 2006) (transcript on file with MSNBC), available at http://www.msnbc.msn.com/id/32539126.
(74.) Philip Shenon, Ridge Warns Iraq War Could Raise Terror Alert, N.Y. TIMES (Mar. 4, 2003), http://www.nytimes.com/2003/03/04/politics/04HOME.html.
(75.) Peter Baker, Bush Official, in Book, Tells of Pressure on "04 Vote, N.Y. TIMES (Aug. 20, 2009), http://www.nytimes.com/2009/08/21/us/21ridge.html.
(76.) See Bejesky, supra note 11, at 91-95, 99-102.
(77.) See Louis Fisher, Lost Constitutional Moorings: Recovering the War Power, 81 IND. L.J. 1199, 1226 (2005); Gregory P. Magarian, The First Amendment, the Public-Private Distinction, and Nongovernmental Suppression of Wartime Political Debate, 73 GEO. WASH. L. REV. 101, 120 (2004) (discussing remarks by Christiane Amanpour, CNN's top war correspondent, that WMD allegations and media coverage were "disinformation at the highest levels"); Bejesky, supra note 53, at 343-63; infra notes 352-62.
(78.) See generally infra Part IV. See, for example, FAIRNESS, supra note 59, when on October 21, 2002, journalist Tom Brokaw (opining in light of unknowns) remarked: "Is there a real working relationship between Al-Qaeda and Saddam Hussein? Correspondent Andrea Mitchell provides the answer," and Transcript of Bill Moyers Journal, Buying the War (Apr. 25, 2007), http://www.pbs.org/moyers/journal/btw/transcriptl.html, where Dan Rather later admitted: "I knew before 9/11 that many of the people who came into the Administration were committed to toppling Saddam Hussein [and] doing it with military force if necessary."
(79.) See, for example, Douglas M. McLeod, Derelict of Duty: The American News Media, Terrorism, and the War in Iraq, 93 MARQ. L. REV. 113, 128 (2009), discussing when former President Jimmy Carter questioned whether the Bush Administration presented sufficient evidence of WMDs, and FOX's Sean Hannity attacked, "He's now becoming a menace in his constant, almost daily criticism of President Bush and his efforts to try to undermine him," and Peter Hart, O'Reilly's War." Any Rationale--or None--Will Do, FAIRNESS & ACCURACY IN
REPORTING (May/June 2003), http://www.fair.org/extra/0305/o'reilly.html, detailing when FOX news host Bill O'Reilly represented evolving positions that seemed to correlate with what Bush Administration proclaimed the intelligence indicated. O'Reilly went from portraying Iraq as a threat not to be taken "seriously anymore" (Feb. 16, 2001), to "I can't, in good conscience, tell the American people that I know for sure that he has smallpox or anthrax or he's got nuclear or chemical and that he is ready to use that" (Dec. 6, 2002), and to "we basically feel that he is a danger to our oil supply" (Jan. 14, 2003). O'Reilly remarked:
This guy we know has anthrax and VX and all this stuff.... Once the war against Saddam begins, we expect every American to support our military, and if they can't do that, to shut up. Americans, and indeed our allies, who actively work against our military once the war is underway will be considered enemies of the state by me.
Id.; see also David J. Sirota, The Fox of War, SALON (Mar. 30, 2004), http://dir.salon.com/story/ news/feature/2004/03/30/fox_news/. Three weeks later, O'Reilly remarked on Good Morning America that if "the Americans go in and overthrow Saddam Hussein and it's clean, he has nothing, I will apologize to the nation, and l will not trust the Bush [A]dministration again, all right?" Sirota, supra.
(80.) FAIRNESS, supra note 59; FAIRNESS 8. ACCURACY lN REPORTING, In Iraq Crisis, Networks are Megaphones for Qfficial Views (Mar. 18, 2003), http://www.fair.org/reports/iraqsources.html; see Leslie Gielow Jacobs, Bush, Obama and Beyond." Observations on the Prospect of Fact Checking Executive Department Threat Claims Before the Use of Force, 26 CONST. COMMENT. 433, 451 (2010) ("Threat claims are easier to make than they are to oppose."); Buying the War, supra note 78 (discussing when FOX's Bill O'Reilly threatened dissenters, stating: "Anyone who hurts this country in a time like this. Well let's just say you will be spotlighted"). MSNBC's Joe Scarborough criticized dissenters who challenged the underlying WMD claims, called former UN weapons inspector Scott Ritter the "chief stooge for Saddam Hussein," and suggested dissenters apologize to the White House for criticism. FAIRNESS & ACCURACY IN REPORTING, supra. On March 6, 2003, MSNBC's Dan Abrams remarked: "Well anyone making these allegations better be willing to defend exactly what they're saying. They're saying this administration is at the least morally corrupt, lying to the American public and the world about their motives and willing to have Americans die for that lie.... That's absurd." Id.
(81.) See Bejesky, supra note 8, at 875-82.
(82.) See Kielbowicz, supra note 22, at 489, 494.
(83.) Papandrea, supra note 21, at 233.
(84.) Sedler, supra note 1, at 1034; see HESS, supra note 22, at 75 (noting that authorized leaks are referred to as planting information).
(85.) See GEORGE JUERGENS, NEWS FROM THE WHITE HOUSE: THE PRESIDENTIAL-PRESS RELATIONSHIP lN THE PROGRESSIVE ERA 40M5 (1981); Martin E. Halstuck, Polic.y of Secrecy Pattern of Deception: What Federalist Leaders Thought About a Public Right to Know, 1794-98, 7 COMM. L. & POL'Y 51, 67 (2002) ("[President] Adams also resorted to using secrecy and deception as political tools."); Papandrea, supra note 21, at 250-51 ; Kielbowicz, supra note 22, at 444-46. By the turn of the new century, President Theodore Roosevelt and many subsequent administrations used anonymous leaks of confidential information for political advantage and to engineer populace consent. Kielbowicz, supra note 22, at 444-46. Roosevelt anonymously leaked negative information to the media to avoid responsibility, denied the authenticity of leaks amid backlash, and tried to craft public perceptions on news. JUERGENS, supra.
(86.) Christina E. Wells, Information Control in Times of Crisis." The Tools of Repression, 30 OHIO N.U.L. REV. 451, 466 (2004) (citing S. SELECT COMM. TO STUDY GOVERNMENT OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES, FINAL REP.: INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS, BOOK III, S. REP. NO. 94-755, at 430 (24th Sess. 1976)); Robert Bejesky, From Marginalizing Economic Discourse with Security Threat to Approbating Corporate Lobbies and Campaign Contributions, 12 CONN. PUB. INT. L.J. (forthcoming 2012) (discussing governmental suppression of discourse and societal and media reactions during the decade of McCarthyism (Red Scare II)).
(87.) Lee, supra note 21, at 1469.
(88.) MARK HERTSGAARD, ON BENDED KNEE: THE PRESS AND THE REAGAN PRESIDENCY 122-23 (1988).
(89.) Richard Delgado, The Language of the Arms Race." Should the People Limit Government Speech?, 64 B.U.L. REV. 961,981-82 (1984).
(90.) Charles E. Simmons, United States" Foreign Policy v. the Press and the American Information Consumer: The Embattled First Amendment, 1987 HOW. L.J. 849, 849 (1987). (91.) Philip B. Heymann, Civil Liberties and Ituman Rights in the Aftermath of September 11, 25 HARV. J.L. & PUB. POL'Y 441,444 (2002) (citing THE FBI AND CISPES, 101ST CONG., REP. OF THE S. SELECT COMM. ON INTELLIGENCE 12 (Comm. Print 1989)). In 1989, the Senate Select Committee on Intelligence investigations noted that "popular self-government" can be undermined by suppressing dissent and discrediting critics. Id.
(92.) MARK LINSKY, IMPACT: HOW THE PRESS AFFECTS FEDERAL POLICYMAKING 229-40 (1986); see LEON V. SIGAL, REPORTS AND OFFICIALS: THE ORGANIZATION AND POLITICS OF NEWS MAKING 140-42 (1973) (noting officials engaged in leaking to develop favorable relations with reporters); Kielbowicz, supra note 22, at 475-76; Lee, supra note 21, at 1469. In a mid1980s survey of 483 federal officials, 73% said they used leaks to fix attention on particular issues or policies. LINSKY, supra.
(93.) See Jeremy Berkowitz, Raising the Iron Curtain on Twitter: Why the United States Must Revise the Smith-Mundt Act to Improve Public Diplomacy, 18 COMMLAW CONSPECTUS 269, 289-91 (2009).
(94.) See Papandrea, supra note 21, at 236; see also Editorial, Espionage Acting, WALL ST. J., Aug. 17, 2006, at A8, available at http://search.proquest.com/docview/398978061/fulltext/1349B245E216134FFF5/5?accountid=14129 (mentioning there can be selective indictments for "doing exactly what hundreds of journalists do in Washington to make a living, albeit for a much larger audience"). Selective prosecutions may not comport with fair justice when leaking is a common practice. Lee, supra note 21, at 1458-60, 1518-20.
(95.) Dean Baquet & Bill Keller, When Do We Publish a Secret?, N.Y. TIMES, July 1, 2006, at A 15, available at http://www.nytimes.com/2006/07/0l/opinion/01keller.html?pagewanted=all. The authors state:
We double check and triple check. We seek out sources with different points of view. We challenge our sources when contradictory information emerges .... No article on a classified program gets published until the responsible officials have been given a fair opportunity to comment.... [T]o publish or not to publish ... is not a responsibility we take lightly. And it is not one that we can surrender to the government.
(96.) SOC'Y OF PROFESSLONAL JOURNALISTS, http://www.spj.org/ethicscode.asp (last visited Feb. 12, 2012).
(97.) See PATRICK RADDEN KEEFE, CHATTER: UNCOVERING THE ECHELON SURVEILLANCE NETWORK AND THE SECRET WORLD OF GLOBAL EAVESDROPPING xvi (2006) (asserting the public must take national security processes "as undifferentiated and unexamined absolutes"); Chinen, supra note 2, at 8-9; Angel Luis Olivera Soto, Prior Restraints in Venezuela's Social Responsibility on Radio and Television Act: Are They Justified?, 40 CEO. WASH. INT'L L. REV. 401, 416-18 (2008) (discussing Venezuela's 1961 and 1999 Constitutions, which deny speech protection for war propaganda and anonymous expressions because of the inability to determine veracity).
(98.) Lee, supra note 21, at 1027 (defining "controlled leaks"). Leaks may promote institutional credibility. JOHNSON, supra note 18, at 304; Lee, supra note 21, at 28-29. For example, following the invasion, there were anonymous CIA "leaks" to the press, particularly involving what the CIA did or did not tell the White House about the credibility of an alleged uranium purchase from Niger. See Dana Priest, Uranium Claim was Known for Months to be Weak, WASH. POST, July 20, 2003, at A22; Lauren Johnston, Bush Knew Iraq Info Was Dubious, CBS EVENING NEWS (July 10, 2003), http://www.cbsnews.com/stories/2003/07/11/eveningnews/main562741.shtml; Walter Pincus, CIA asked Britain to Drop Iraq Claim, WASH. POST, July 11, 2003, at A01; Dana Priest & Karen De Young, CIA Questioned Documents Linking Iraq, Uranium Ore, WASH. POST, Mar. 22, 2003, at A30. Sources for the stories were "a former high-level US intelligence official ... a former US intelligence official ... some analysts ... the official." Id. Ultimately, the SSCI blamed the CIA for being wrong and for not adequately investigating the claim. SSCI/2004, supra note 9, at 76-77; see Bejesky, supra note 8, at 830, 833-35.
(99.) Transparency in the Media, supra note 22, at 143 (acknowledging that the media cannot be relied upon to make sense of all of the "disinformation," "complicated information," and "sensitive information" that is available); see discussion supra Part III.
(100.) Michael Kinsley, Sources Worth Protecting?, WASH. POST, Oct. 10, 2004, at B7; see infra notes 101, 104, 380-81 and accompanying text. 101. Papandrea, supra note 21, at 253; see United States v. Rosen, 520 F. Supp. 2d 802, 808 (E.D. Va. 2007) (reciting the defendant's argument that it is a "well-established official Washington practice of engaging in 'back channel' communications with various nongovernmental entities and persons for the purpose of advancing U.S. foreign policy goals"); Randall D. Eliason, Leakers, Bloggers, and Fourth Estate Inmates: The Misguided Pursuit of a Reporter's Privilege, 24 CARDOZO ARTS & ENT. L.J. 385, 389 (2006) (noting the focus of the criminal investigation into the disclosure of a CIA operative was on administrative officials); Richard T. Cooper & Faye Fiore, In Politics, Leaking Stories is a Fine Art, L.A. TIMES, Apr. 9, 2006, at Al ("Though high-level officials often portray leaks as renegade acts that betray the public trust, leaks are just as likely to be fully approved, calculated actions by loyal members of an administration moves designed to advance an agenda, thwart enemies, and manipulate public opinion.").
(102.) ALEXANDER M. HAIG, JR., CAVEAT: REALISM, REAGAN, AND FOREIGN POLICY 17 (1984).
(103.) See infra Part V.
(104.) See ANTHONY DOWNS, INSIDE BUREAUCRACY 113 (1967) ("Subformal communications ... can be withdrawn, altered, adjusted, magnified, or canceled without any official record being made."); Robert Bejesky, Public Diplomacy or Propaganda? Targeted Messages and Tardy Corrections to Unverified Reporting, 40 CAP. U. L. REV. (forthcoming 2012) (explaining that the Bush Administration's Pentagon independent analyst program, use of VNRs, and operations inside Iraq employed anonymity to present false or controversial information); Cliff Kincaid, McCain Wrong to Support Media Shield Law, ACCURACY IN MEDIA (Apr. 14, 2008, 1:19 AM), http://www.aim.org/aim-column/mccain-wrong-to-support-media-shield-law/ (arguing that self-interested and anonymous leaks provide a misleading message, and responsibility for content can be avoided); Howard Kurtz, Sez Who? How Sources and Reporters' Play the Game of Leaks, WASH. POST, Mar. 7, 1993, at C5 (noting that leaking permits officials "to orchestrate coverage from behind a curtain of anonymity").
(105.) Barton Gellman, U.S. Suspects Al Qaeda Got Nerve Agent From Iraqis, WASH. POST, Dec.12,2002, at A01, available at http://www.washingtonpost.com/wpdyn/content/article/2006/06/12/AR2006061200701.html.
(108.) Howard Kurtz, The Post on WMD's: An Inside Story, WASH. POST, Aug. 12, 2004, at A01,availableathttp://www.washingtonpost.com/ac2/wp-dyn/A58127-2004Aug11?language-printer.
(109.) Stephen F. Hayes, Case Closed, 9(11) WEEKLY STANDARD, cover, Nov. 24, 2003, available at http://www.weeklystandard.com/tws/Search/SearchIssues.asp?from_year-2003&from_month_=11&to_year=2003&to_month=12&x=62&y=14.
(111.) See Bejesky, supra note 11, at 32, 39-44, 62-65, 75, 102-03 (stating PNAC was organized as a non-profit educational organization and members were busily broadcasting a dire threat message to society while many of its founding and notable members were top appointees in the Bush Administration). See generally Magarian, supra note 77 (examining how nongovernmental groups/interests can skew wartime debate). Pentagon appointees held meetings after 9/11 with nongovernmental organizations and invited pro-war groups, such as the Committee for the Liberation of Iraq, to market the threat. See Bejesky, supra note 11, at 62-67. It is difficult to impose constitutional responsibilities (that normally only bind the government) on nongovernment actors. Magarian, supra note 77, at 128-34.
(112.) Ian S. Lustick, Fractured Fairy Tale: The War on Terror and the Emperor's New Clothes, 16 MINN. J. INT'L L. 335, 341 (2007).
(113.) Hayes, supra note 109.
(116.) See SEN. SELECT COMM. ON INTELLIGENCE, INTELLIGENCE ACTIVITIES RELATING TO IRAQ CONDUCTED BY THE POL'Y COUNTERTERRORISM EVALUATIONS GROUP AND THE OFF. OF SPECIAL PLANS WITHIN THE OFF. OF THE UNDER SEC'Y OF DEF. FOR POL'Y, S. REP. NO. 108-301, at 1-2 (2008), available at http://intelligence.senate.gov/080605/phase2b.pdf; Bejesky, supra note 8, at 856 n.324, 862-63; S. M., Stephen Haves: Conservatives" Favorite Authority on "The Connection,"' MEDIA MATTERS (June 30, 2004), http://mediamatters.org/research/200406300014.
(117.) SSCI/2004, supra note 9, at 1-3.
(118.) See DEP'T OF DEF., Off. of Inspector General, Review of Pre-Iraqi War Activities of the Office of the Undersecretary of Defense for Policy, Feb. 9, 2007, available at http://i.a.cnn.net/cnn/2007/images/02/09/dodig.execsummary.020907.pdf; SEN. SELECT COMM. ON INTELLIGENCE, supra note 116, at 1-2. The information, an assortment of unverified and rejected rumors cobbled together into a "secret" memo, was "leaked" without consequence. See Bejesky, supra note 8, at 862-63.
(119.) See supra notes 83-90, 92, 105-18, 277-96, 365-67 (noting that leaking is a ubiquitous practice, but prosecution of whistleblowers is rare, and prosecution of top executive branch officials for leaking virtually unheard of).
(120.) See Garcetti v. Ceballos, 126 S. Ct. at 1965 n.l (Souter, J., dissenting), for a case that seemingly reduced the speech rights of government whistleblowers and where Justice Souter contended that the majority's decision actually encourages leaks, and BRUCE CATTON, THE WAR LORDS OF WASHINGTON 87 (1948), for an explanation of how U.S. democracy would not function properly without leaks. "Apart from unauthorized 'leaks' by disaffected government officials, the media has no way of obtaining information from the government that the government does not wish to disclose." Sedler, supra note 1, at 1035.
(121.) Intelligence Authorization Act for Fiscal Year 2002, S.1428, S. REP. NO. 107-63, at [section] 307 (2001), available at http://www.fas.org/irp/congress/2001_rpt/s1428.html. The Bush Administration advocated for "the Attorney General ... Secretary of Defense, Secretary of State, Secretary of Energy, Director of Central Intelligence, and heads of such other departments agencies, and [for] ... the Attorney General... [to] carry out a comprehensive review of current protections against unauthorized disclosure," consider mechanisms "to detect the unauthorized disclosure," and "sanction ... and punish the unauthorized disclosure." Id. The bill ultimately failed. See http://www.govtrack.us/congress/bill.xpd?bill=sl07-1428.
(122.) See AG, Hastert, supra note 18, at 1. Ashcroft explained how he and the president intended to act aggressively and considered developing a comprehensive program of "deterring, detecting, and punishing unauthorized disclosures of U.S. national security secrets among our highest priorities.... [because the U.S.] need[s] an effective Government-wide program to curtail these damaging disclosures and to hold the persons who engage in unauthorized disclosures of classified information fully accountable." Id. Another report provided a chronology of unpredictable threats and emphasized the need for a new government information technology infrastructure and presumed there is "intrinsic linkage" among military, civilian government, private, and individual computer users. See PRESIDENT'S INFO. TECH. ADVISORY COMM., Cyber Security: A Crisis of Prioritization, at 1-9, 18, 23 (Feb. 2005), available at http://www.nitrd.gov/Pitac/reports/2005030l_cybersecurity/cybersecurity.pdf.
(123.) See 5 U.S.C. [section] 8312 (2006); 18 U.S.C.[section] [section] 793, 794, 797, 952 (2006); 42 U.S.C. [section] 2277 (2006); Exec. Order No. 12065, 43 Fed. Reg. 28,949 [section] 5-5 (June 28, 1978); United States v. Morison, 844 F.2d 1057, 1064-65 (4th Cir. 1988); AG, Hastert, supra note 18, at 5-7 (considering new enforcement mechanisms, such as "liquidated damage" clauses and having employees sign affidavits that ensure employees do not reveal classified information with perjury enforcement mechanisms). Alternatively, criminal penalties can involve balancing secrecy and providing public trials. See Classified Information Procedures Act, 18 U.S.C. app. III (2006); United States v. Anderson, 872 F.2d 1508, 1514 (11th Cir. 1989); United States v. Collins, 720 F.2d 1195, 1196-97 (11th Cir. 1983); United States v. Lopez-Lima, 738 F. Supp. 1401, 1407
(S.D. Fla. 1990).
(124.) See AG, Hastert, supra note 18, at 8; see also Gareetti, 547 U.S. at 421-22 (holding employers could limit employee free speech). One example of quashing whistleblower dissent is the case of Sibel Edmonds, an FBI translator. Edmonds alleged there were "serious breaches in the FBI security program and a break-down in the quality of translations as a result of willful misconduct and gross incompetence," but she was enjoined from making public statements about her experiences. Edmonds v. U.S. Dep't of Justice, 323 F. Supp. 2d 65, 67-68 (D.D.C. 2004). The Bush Administration retroactively classified her testimonial allegations. See Declaration of Danielle Brian in Support of Plaintiff's Motion for Summary Judgment and Opposition to Defendants' Motion to Dismiss at para. 21, Exhibit G, Project on Gov't Oversight v. Dep't of Justice, No. 1:04cv01032 (JDB) (D.D.C. Sept. 30, 2004). The state secret privilege barred Edmonds's lawsuit. See Vladeck, supra note 25, at 168.
(125.) See Bejesky, supra note 11, at 63-64; Robert Bejesky, Geopolitics, Oil Law Reform, and Commodity Market Expectations, 63 OKLA L. REV. 193, 215-17, 223-24 (2011) (discussing preinvasion planning with the Future of Iraq Project and occupation strategy, which was declassified after the invasion). Similar contentions of early penchants were expressed by former President Clinton, top White House official Richard Clarke, and others, as relayed in Ronald Suskind's book. See Bejesky, supra note 11, at 62-67.
(126.) Bejesky, supra note 11, at 64-65. President Bush criticized members of Congress for purportedly breaching obligations to maintain secrecy for classified information. Marcus Eyth, The C1A and Covert Operations: To Disclose or Not to Disclose That is the Question, 17 BYU J. PUB. L. 45, 67 (2002) (putting U.S. "troops at risk").
(127.) Dan Froomkin, White House Reels from Insider Expose, White ttouse Briefing, WASH. POST (Mar. 22, 2004), http://www.washingtonpost.com/ac2/wp-dyn/A14852-2004Mar22?. Richard Clarke, a former top White House official, remarked that on September 12, "[t]he President in a very intimidating way left us, me and my staff, with the clear indication that he wanted us to come back with the word that there was an Iraqi hand behind 9/11 because they had been planning to do something about Iraq from before the time they came into office." Id. (quoting Interview with Richard Clarke (ABC television broadcast Mar. 22, 2004), available at http://abcnews.go.com/WNT/story?id=131579&page=1#.TzbmO_kUXdm).
(128.) Bejesky, supra note 11, at 78-80.
(129.) See id. at 81-82.
(130.) Michael P. Allen, George W. Bush and the Nature of Executive Authority: The Role of Courts in a Time of Constitutional Change, 72 BROOK. L. REV. 871, 871 (2007); see, e.g., Lee, supra note 21, at 1454-55; Laura Barandes, A Helping Hand." Addressing New Implications of the Espionage Act on Freedom of the Press, 29 CARDOZO L. REV. 371, 376-77 (2007); Streit, supra note 22, at 88.
(131.) Allen, supra note 130, at 890.
(132.) Id. at 892.
(133.) Dana Priest, CIA Holds Terror Suspects in Secret Prisons; Debate is Growing Within Agency About Legality and Morality of Overseas System Set Up After 9/11, WASH. POST, Nov. 2, 2005, at A1; see Jane E. Kirtley, Transparency and Accountability in a Time of Terror: The Bush Administration's Assault on Freedom of Information, 11 COMM. L. & POL'Y 479, 480 (2006) (discussing the CIA's firing of Mary McCarthy, the analyst who apparently leaked the Eastern European rendition information); Michael P. Scharf & Colin T. McLaughlin, On Terrorism and Whistleblowing, 38 CASE W. RES. J. INT'L L. 567, 572-73 (2006-07) (noting McCarthy was fired for violating a CIA secrecy agreement); David Johnston & Carl Hulse, C.I.A. Asks Criminal Inquiry Over Secret-Prison Article, N.Y. TIMES, Nov. 9, 2005, at Al8 (reporting CIA investigation of leak and congressional refusal to examine prisoner abuse).
(134.) See PHILIP ZIMBARDO, THE LUCIFER EFFECT: UNDERSTANDING HOW GOOD PEOPLE TURN EVIL 403-04 (2007) (contending that different levels of government had different roles in abuse); ALFRED W. MCCOY, A QUESTION OF TORTURE: CIA INTERROGATION, FROM THE COLD WAR TO THE WAR ON TERROR 6 (2006) (discussing in-depth the investigation into the Abu Ghraib scandal); IN THE NAME OF DEMOCRACY: AMERICAN WAR CRIMES IN IRAQ AND BEYOND 79 (Jeremy Brecher, Jill Cutler & Brendan Smith eds., 2005); Scharf & McLaughlin, supra note 133, at 572-73 (noting military response to decision to turn over photographs of Abu Ghraib abuse); PBS NewsHour: U.S. Army Plans to Demote General in Connection to Prisoner Abuse Investigation (PBS television broadcast May 6, 2005), available at http://www.pbs.org/newshour/bb/military/jan-june05/abuse_5-6.html (highlighting various explanations for why the Abu Ghraib scandal occurred).
(135.) Charles D. Weisselberg, The Detention and Treatment of Aliens Three Years After September 11: A New New World?, 38 U.C. DAVIS L. REV. 815, 848-49 (2005).
(136.) Executive Branch Memoranda on Status and Permissible Treatment of Detainees, 98 AM. J. INT'L L. 820, 820 (Sean D. Murphy ed., 2004); see also Neil M. Peretz, The Limits of Outsourcing. Ethical Responsibilities of Federal Government Attorneys Advising Executive Branch Officials, 6 CONN. PUB. INT. L.J. 23, 49 (2006).
(137.) Jose E. Alvarez, Torturing the Law, 37 CASE W. RES. J. INT'L L. 175, 176 (2006).
(138.) See MCCOY, supra note 134, at 152; Srividhya Ragavan & Michael S. Mireles, Jr., The Status of Detainees from the Iraq and Afghanistan Conflicts, 2005 UTAH L. REV. 619, 620 (2005).
(139.) See Jan Crawford Greenburg et al., Bush Aware of Advisers' Interrogation Talks, ABCNEws.COM (Apr. 11, 2008), http://abcnews.go.com/TheLaw/LawPolitics/story?id=4635175&page=1 [hereinafter Greenberg, Interrogation Talks]; Jan Crawford Greenburg et al., Sources: Top Bush Advisors Approved 'Enhanced Interrogation,' ABCNEwS.COM (Apr. 9, 2008), http://abcnews.go.com/TheLaw/LawPolitics/story?id=4583256 [hereinafter Greenberg, Enhanced Interrogation]; see also Editorial, The Torture Sessions, N.Y. Times (Apr. 20, 2008), http://www.nytimes.com/2008/04/20/opinion/20sunl.html; Lara Jakes Jordan & Pamela Hess, Cheney, Others OK'd Harsh Interrogations, HUFFINGTON POST (Apr. 11, 2008), http://www.huffingtonpost.com/2008/04/10/ cheney-others-okd-harsh-i_n_96158.html; Countdown with Keith Olberman (MSNBC television broadcast Apr. 10, 2008), available at http://www.msnbc.msn.com/id/24068197/ns/msnbc_tv-countdown_with_keith_olbermann.
(140.) Countdown with Keith Olberman, supra note 139 ("Congress is like a convention of Claude Rains actors. Everyone's saying, we're shocked, shocked; there's torture being discussed in the White House. But no one is doing anything about it.").
(141.) James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers without Courts, N.Y. TIMES, Dec. 16, 2005, at A1; see also Tara M. Sugiyama & Marisa Perry, The NSA Domestic Surveillance Program: An Analysis of Congressional Oversight During an Era of One-Party Rule, 40 U. MICH. J.L. REFORM 149, 149 (2006); Scott Shane, Report Questions Legality of Briefings on Surveillance, N.Y. TIMES, Jan. 19, 2006, at Al9 ("Congressional Research Service concludes that the ... National Security Agency's domestic eavesdropping without warrants are 'inconsistent with the law.'"); Scharf & McLaughlin, supra note 133, at 574; Magarian, supra note 77, at 116 ("[I]n a strategy reminiscent of Vietnam-era domestic spying, numerous antiwar groups and other peaceful dissenters have suffered law enforcement infiltration and investigation.").
(142.) Sugiyama & Perry, supra note 141, at 149-50.
(143.) Elizabeth M. Iglesias, Article H: The Uses and Abuses of Executive Power, 62 U. MIAMI L. REV. 181, 183-85 (2008); see Elizabeth Holtzman, Impeachment as a Remedy, 62 U. MIAMI L. REV. 213, 215-16 (2008). See generally David D. Kirkpatrick, Call to Censure is Answered by a Mostly Empty Echo, N.Y. TIMES (Apr. 1, 2006), http://www.nytimes.com/2006/04/01/washington/01censure.html; President George W. Bush Discusses the War in Iraq Speech Delivered at the City Club of Cleveland, WASH. POST (Mar. 20, 2006), http://www.washingtonpost.com/wpdyn/content/article/2006/03/20/AR2006032000762.html [hereinafter Bush Cleveland Speech]; Sugiyama & Perry, supra note 141, at 157, 63. In March 2006, Bush contended the legal requirements of the Foreign Intelligence Surveillance Act, which were enacted "as a direct result of President Nixon's illegal wiretapping, and subsequent revelations of CIA and FBI misconduct in the surveillance of Americans," were too "slow and cumbersome" to respond to terror threats. Holtzman, supra at 216; Bush Cleveland Speech, supra. The censure was:
[A] public performance of intra-party conflict orchestrated to create the illusion of interbranch accountability--a tempest in the teapot of a censure resolution. What, after all, was the significance of a censure resolution in the Senate's Judiciary Committee when, outside the committee, the ever louder call was for impeachment?
Iglesias, supra, at 183-84. Attorney General Gonzales contended the surveillance was legal by broadly-interpreting Congress' post-9/11 authorization to respond to the attacks and prevent future attacks "by such nations, organizations or persons." Sugiyama & Perry, supra note 141, at 157, 163.
(144.) See Holtzman, supra note 143, at 216.
(145.) Scott Shane, Behind Bush's Fury, a Vow Made in 2001, N.Y. TIMES (June 29, 2006), http://www.nytimes.com/2006/06/29/washington/29intel.html; see Peter Baker, Surveillance Disclosure Denounced, WASH. POST (June 27, 2006), http://www.washingtonpost.com/wp-dyn/content/article/2006/06/26/AR2006062600563.html.
(146.) Papandrea, supra note 21, at 235.
(147.) Eric Lane et al., Too Big a Canon in the President's Arsenal: Another Look at United States v. Nixon, 17 CEO. MASON L. REV. 737, 770 (2010). (148.) Id. at 770-71.
(149.) See 26 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE [section] 5663 (1st ed. 1992) (stating secrecy is a means of "concealing one's power" and avoiding debate, and a way to "escape public responsibility for legal actions or to cover-up wrongdoing"). See generally RICHARD A. POSNER, UNCERTAIN SHIELD: THE U.S. INTELLIGENCE SYSTEM IN THE THROES OF REFORM 186-87 (2006) (suggesting secrecy is used to avoid embarrassment); JOHNSON, supra note 18, at 10 ("Agencies classify things in order to protect themselves from congressional scrutiny or from political or bureaucratic rivals elsewhere within the government."); SISSELA BOK, SECRETS: ON THE ETHICS OF CONCEALMENT AND REVELATION 110 (1982) (suggesting secrecy breeds corruption); Lane et al., supra note 147, at 738-39 (discussing executive efforts to control dissemination of information about government activities); Arthur Schlesinger, Jr., Preface to the 1987 Edition to DAVID BANISAR, Government Secrecy." Decisions Without Democracy 5 (2007), available at http://www.openthegovemment.org/sites/default/files/otg/govtsecrecy.pdf ("[S]ecrecy is a source of power and an efficient way of covering up the embarrassments, blunders, follies and crimes of the ruling regime."); Erwin N. Griswold, Secrets Not Worth Keeping: The Courts and Classified Information, WASH. POST, Feb. 15, 1989, at A25 ("It quickly becomes apparent to any person who has considerable experience with classified material that there is massive over classification and that the principal concern of the classifiers is not with national security, but with governmental embarrassment of one sort or another."). Publicized falsities and illegalities are often followed by "decontamination" techniques, overt lying, classifying relevant documents to cover up illegalities, refusing FOIA requests and redacting portions of relevant classified documents, stonewalling, and obfuscating factual chronologies. Johnson, infra, at 300.
(150.) See N.Y. Times Co. v. United States, 403 U.S. 713, 729 (1971) (Stewart, J., concurring) ("For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on selfprotection or self-promotion."); Frances H. Foster, Information and the Problem of Democracy: The Russian Experience, 44 AM. J. COMP. L. 243, 247-48 (1996) (referring specifically to Russian reform). The informed citizenry theory espouses that "comprehensive popular information is essential as a 'democratic' check on governing authorities." Foster, supra, at 247-48. A "shroud of secrecy" can "insulat[e] official organs and personnel from public scrutiny and accountability." Id.
(151.) See Bejesky, supra note 11, at 39 (discussing neoconservativism in relation to the Bush Administration); see also Kenneth Anderson, Goodbye to All That? A Requiem .[or Neoconservatism, 22 AM. U. INT'L L. REV. 277, 288 (2007); supra text and accompanying notes 43-48, 122-48; infra text and accompanying notes 155-59 (discussing Nixon and Bush similarities in wiretapping, lying, expanding war without authority, and suppressing dissent). "Neoconservativism can be traced to the Nixon, Ford, and Kissinger era of Cold War struggles." Bejesky, supra note 11, at 247.
(152.) Bush's Final Approval Rating: 22 Percent, CBS NEWS (Feb. 11, 2009, 1:45 PM), http://www.cbsnews.com/storics/2009/01/16/opinion/polls/main4728399_page2.shtml?tag+conte-ntMain;contentBody; Frank Newport, Bush's Job Approval at 25%, His Lowest Yet, GALLUP POLL (Oct. 6, 2008), http://www.gallup.com/poll/110980/Busy-Job-Approval-25-Lowest-Yet.aspx.
(153.) Anthony L. Fargo, The Year of Leaking Dangerously: Shadowy Sources, Jailed Journalists, and the Uncertain Future of the Federal Journalist's Privilege, 14 WM. & MARY BILL RTS. J. 1063, 1078 (2006); see also Potter Stewart, "'Or of the Press," Address at the Yale Law School Sesquicentennial Convocation (Nov. 2, 1974), in 26 HASTINGS L.J. 631, 634 (1975).
(154.) Bejesky, supra note 53, at 347, , 371-81. See generally David L. Altheide, The Mass Media, Crime and Terrorism, 4 J. INT'L CRIM. JUST. 982, 983 (2006) (arguing propaganda, news management, and the "failure of journalism and other organizations charged (at least in the United States) with exposing, checking and calling leaders to account for their actions" led to the illegal attack on Iraq); Bruce Fein, A More Secretive Government?, WASH. TIMES (Aug. 22, 2006), http://www.washingtontimes.com/news/2006/aug/21/20060821-094832-9292r/. The Washington Times noted: "And as Congress has increasingly defaulted on its constitutional obligation to oversee the executive branch, the need has increased for an unfettered press to expose and to deter presidential mischief." Fein, supra.
(155.) John W. Dean, Watergate: What Was It?, 51 HASTINGS L.J. 609, 620-21 (2000).
(156.) MICHAEL R. BELKNAP, THE VIETNAM WAR ON TRIAL 198-201 (2002) (explaining how Nixon dealt with the My Lai Massacre and the public uproar against the war); JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH 19 (1993); Damrosch, supra note 9, at 1409; see infra note 266 (referring to Nixon's restriction of dissemination of the Pentagon Papers).
(157.) 31 CONG. Q. WEEKLY REP. 2299 (1973); 119 CONG. REC. 21173 (daily ed. June 25, 1973) (House vote, statement of Mr. Broomfield). The Senate and the House voted to cut funding for operations in Laos and Cambodia. Id.
(158.) See Bejesky, supra note 13, at 63 & n.393. Vietnam War expenditures may have been influential in Nixon breaching on the Gold Standard, which thereafter might have also aggravated conditions that led to the developing world debt crisis. Id. at 15-16.
(159.) Hannibal Travis, Postmodern Censorship of Pacifist Content on Television and the Internet, 25 NOTRE DAME J.L. ETHICS & PUB POL'Y 47, 79 (2011); Holtzman, supra note 143, at 215. See generally Peretz, supra note 136, at 38-39. FBI Director J. Edgar Hoover was spying on civil rights advocates, such as Martin Luther King, Jr., and maintained it was necessary to state security, which nullified any ability to have rights vindicated or an Attorney General prosecute the executive branch wrongdoing. Peretz, supra note 136, at 38-39.
(160.) See generally LEN COLODNY & ROBERT GETTLIN, SILENT COUP: THE REMOVAL OF A PRESIDENT (1991) (contextualizing the break-in and scandal); Lane et al., supra note 147, at 742 (providing background information on Nixon decision).
(161.) The Watergate Story, WASH. POST, http://www.washingtonpost.com/wpsrv/politics/special/watergate/(last visited Feb. 12, 2012); see also Lane et al., supra note 147, at 738-39.
(162.) David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb--A Constitutional History, 121 HARV. L. REV. 941, 1076 (2008); Wells, supra note 86, at 466 (suggesting that Nixon was leaking information to counter political fallout).
(163.) U.S. DEP'T OF STATE, SEC'Y OF STATE HENRY KISS1NGER STAFF MEETING TRANSCRIPTS 20-21 (Mar. 26, 1976), available at http://www.gwu.edu/-nsarchiv/NSAEBB/NSAEBB185/19760326%20Secretary%20of%20Stet%20Kissinger%20Chariman%20apgesl%201-39%20-%20full.pdf; U.S. DEP'T OF STATE, MEMO FROM AMBASSADOR HILL FOR ARA/ACTING ASSISTANT SEC'Y (Feb. 16, 1976), http://www.gwu.edu/-nsarchiv/NSAEBB/NSAEBB_185/19760216%20Military%20Take%20Cognizance%20of%20Human%20Rights%20Issue%2000009FF0.pdf.
(164.) NAT'L SEC. ARCHIVE, Brazil Marks 40th Anniversary of Military Coup: Declassified Documents Shed Light on U.S. Role (Mar, 31, 2004), http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB118/index.htm; Robert F. McFadden, Lincoln Gordon Dies at 96; Educator and Ambassador to Brazil, N.Y. TIMES (Dec. 21, 2009), http://www.nytimes.com/2009/12/21/us/21GORDON.html (reporting that U.S. officials had long denied involvement in the coup); Steve Kingstone, Brazil Remembers 1964 Coup d'etat, BBC (Apr. 1,2004), http://news.bbc.co.uk/go/pr/fr/-/2/hi/americas/3588339.stm.
(165.) NAVY SECTION UNITED STATES MILITARY GROUP, CHILE, SITUATION REPORT #2 (Oct. 1, 1973), available at http://www.gwu.edu/~nsarehiv/NSAEBB/NSAEBB8/ch21-01.htm; WHITE HOUSE, Memorandum of Conversation--NSC Meeting--Chile (NSSM 97) (Nov. 6, 1970), available at http://www.gwu.edu/~nsarchiv/news/20001113/701106.pdf.
(166.) NAT'L SEC. ARCHIVE, CIA Stalling State Department Histories: State Historians Conclude U.S. Passed Names of Communists to Indonesian Army, Which Killed at Least 105,000 in 1965-66 (July 27, 2001), http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB52/; CHALMERS JOHNSON, BLOWBACK: THE COSTS AND CONSEQUENCES OF AMERICAN EMPIRE 26, 74-77 (2000); U.S. Blocks Indonesia History Revelations, BBC (July 28, 2001), http://news.bbc.co.uk/2/hi/americas/1461859.stm; NAT'L SEC. ARCHIVE, East Timor Revisited: Ford, Kissinger and the Indonesian Invasion, 1975-76 (Dec. 6, 2001), http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB62/ (documenting that Ford and Kissinger supported Suharto's invasion of East Timor).
(167.) Bejesky, supra note 13, at 44-48.
(168.) 121 CONG. RLC. S1416-33 (1975); GREG GRANDIN, EMPIRE'S WORKSHOP: LATIN AMERICA, THE UNITED STATES, AND THE RISE OF THE NEW IMPERIALISM 61 (2006) (quoting the Church Committee report and stating that there are "fourteen volumes dense with facts documenting the CIA's ties to the Mafia, involvement in coups, attempts to assassinate foreign leaders throughout the third world"); David J. Barton & Martin S. Lederman, The Commander in Chief at the Lowest Ebb Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 718 (2008) (stating that charges of "rampant lawlessness ... haunts the CIA to this day"); AARC PUB. LIBRARY CONTENTS, Church Committee Reports, http://www.aarclibrary.org/publib/contents/church/contents_church_reports.htm.
(169.) Papandrea, supra note 21, at 254-55.
(170.) LESLEY GILL, THE SCHOOL OF THE AMERICAS: MILITARY TRAINING AND POLITICAL VIOLENCE IN THE AMERICAS 137 (2004); see also Bill Quigley, The Case for Closing the School of the Americas, 20 BYU J. PUB. L. 1, 25 (2005) (documenting how many human rights abusers were trained at the School of the Americas).
(171.) See Scharf & McLaughlin, supra note 133, at 579 (concluding that the Iran-Contra controversy was revealed by whistleblowers).
(172.) KOH, supra note 2, at 62.
(173.) 144 CONG. RLC. H2954-56 (daily ed. May 7, 1998); 144 CONG. RLC. H5847-48 (daily ed. July 17, 1998) (requesting classified reports after the "CIA Admits Ties to Contra Drug Dealers"); see also GRANDIN, supra note 168, at 115 (citing government investigations).
(174.) SAM DILLON, COMMANDOS: THE CIA AND NICARAGUA'S CONTRA REBELS 194-201 (1991); see also Dems Ignore Negroponte's Death Squad Past, Look to Confirm Iraq Appointment, DEMOCRACY NOW! (Apr. 28, 2004), http://www.democracynow.org/2004/4/28/dems_ignore_negropontes_death_squad_past.
(175.) Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, [paragraphs] 106-08 (June 27).
(176.) Iran-Contra Hearings; Day 2: The President's Knowledge and the Ayatollah's Money, N.Y. TIMES (July 9, 1987), http://www.nytimes.com/1987/07/09/world/iran-contra_hearings.day-2-the-president-s-knowledge-and-the-ayatollah-s-money.html?scp=1&sq=Iran-; Lane et al., supra note 147, at 766 ("Under the direction of Colonel Oliver North, this organization was committed in direct violation of the Boland Amendments, laws barring U.S. government assistance to the rebel guerilla group known as the Contras in Nicaragua--to helping the Contras undermine the Nicaraguan government.").
(178.) Julian Borger, Libby Pleads Not Guilty as White House Braces for Scandal Hearing, GUARDIAN (Nov. 4, 2005), http://www.guardian.co.uk/world/2005/nov/04/usa.topstories3 (stating that Lewis "Scooter" Libby is the highest-ranking White House official convicted in a government scandal since the Iran-Contra affair, although he has maintained his innocence); see Deborah Tedford & Ari Shapiro, Libby Sentenced to 2 1/2 Years in CIA Leak Case, NPR (June 5, 2007), http://www.npr.org/templates/story/story.php?storyId=10732930.
(179.) See generally MICHAEL IGNATIEFF, THE LESSER EVIL: POLITICAL ETHICS lN AN AGE OF TERROR 119 (2004). A philosophical point relating to democratic law and order seems pertinent. Id. Philosopher Michael Isnatieff remarks that "liberal democratic regimes encourage a kind of moral narcissism, a blinding belief that because this kind of society authorizes such means, they must be acceptable .... [D]emocratic values ... may actually blind democratic agents to the moral reality of their actions." Id.
(180.) See Scharf & McLaughlin, supra note 133, at 579 (noting that whistleblowers generally are not always fully protected but can face "loss of promotion, harassment, firing, and in some instances criminal prosecution"). See generally infra Part VI.D.2.
(181.) Bejesky, supra note 11, at 63-66, 78-82; see also supra notes 125-29 and accompanying text.
(182.) See Lyrissa Barnett Lidsky, Nobody's Fools: The Rational Audience as First Amendment Ideal, 2010 U. ILL. L. REV. 799, 848-49 (noting criticism of the "lapdog" media during the Bush Administration, but also explaining that "there was impressive reporting during the war on warrantless wiretaps, torture, and extraordinary rendition"). See generally Bejesky, supra note 11, at 62, 66, 78-81; Bejesky, supra note 53, at 359-63. If there is overwhelming evidence that wrongdoing occurred and the media reports, but does nothing to demand responsibility, reporting may still be weak. Lidsky, supra.
(183.) David A. Wallace, Abstract, Torture v. the Basic" Principles of the U.S. Military, 6 J. INT'L CRIM. JUST. 309 (2008); Theodore Meron, On a Hierarchy of International Human Rights, 80 AM. J. INT'L L. 1, 9-15 (1986).
(184.) See supra notes 130-40.
(185.) DANIEL T. WILLINGHAM, COGNITION: THE THINKING ANIMAL 138 (2d ed. 2004); DANIEL REISBERG, COGNITION: EXPLORING THE SCIENCE OF THE MIND 14 (2d ed. 2001). See generally Edmund T. Rolls, Computations in Memory Systems in the Brain, in NEUROBIOLOGY OF LEARNING AND MEMORY 218-22, 34 (Raymond Kesner & Joe Martinez eds., 2d ed. 2007) (discussing the methods of which short term memory work in conjunction with brain perceptions). Memory must be made more permanent for later recall. WlLLINGHAM, supra, at 163-64.
(186.) See WILLINGHAM, supra note 185, at 185.
(187.) ALAN D. BADDELEY, ESSENTIALS OF HUMAN MEMORY 109 (1999); see also GABRIEL A. RADVANSKY, HUMAN MEMORY (2005).
(188.) See Howard Zinn, Afterword, in ANTHONY ARNOVE, IRAQ: THE LOGIC OF WITHDRAWAL 115 (2006) ("The major newspapers, television news shows, and radio talk shows appear not to know history, or prefer to forget our history."); Jonathan Mermin, Free But Not Independent: The Real First Amendment Issue for the Press, 39 U.S.F.L. REV. 929, 942 (2005) (citing DANIEL C. HALLIN, THE 'UNCENSORED WAR': THE MEDIA AND VIETNAM 159-74) (noting that dissent over the Vietnam War came from society and government officials in 1967 and was not initiated by the media). But see Michelle Ward Ghetti, The Terrorist is a Star!: Regulating Media Coverage of Publicity-Seeking Crimes, 60 FED. COMM. L.J. 481, 500 (2008) (arguing that the role of the media as the neutral observer is antiquated).
(189.) See generally THOMAS PATTERSON, OUT OF ORDER 80-81 (1994) (explaining the changing style of the media throughout the late twentieth century); British Ephemeral Literature." Introduction, ENOTES.COM, http://www.enotes.com/literary-criticisrn/british-ephemeral-literature (last visited Feb. 12, 2012) (chronicling the history of print media from the invention of the printing press to the early 1800s). Early versions of newspapers were labeled as ephemeral literature. British Ephemeral Literature, supra.
(190.) See BILL KOVACH & TOM ROSENSTEIL, THE ELEMENTS OF JOURNALISM 150 (2001) (noting that one media rationale for not providing detail is that short "attention spans" require curt factual renditions); see also NEIL POSTMAN, AMUSING OURSELVES TO DEATH: PUBLIC DISCLOSURE IN THE AGE OF SHOW BUSINESS 103, 160 (1985) (suggesting a solution to the problem of watching television can be resolved by assessing how people watch television).
(191.) ORWELL ROLLS OVER IN HIS GRAVE (Sag Harbor-Basement Pictures 2003) (interviewing Miller).
(192.) See Ralph S. Brown, Jr., Advertising and the Public Interest: Legal Protection of Trade Symbols, 108 YALE L.J. 1619, 1641 (1999). The media is a "conduit through which the persuasive power of the advertising is transmitted, and acquires a potency, a 'commercial magnetism,' of its own." Id.
(193.) Michael T. Wawrzycki, Language, Morals, and Conceptual Frameworks in Dispute Resolution: Establishing, Employing, and Managing the Logos, 8 CARDOZO J. CONFLICT RESOL. 210, 227-29 (2006); ANTHONY R. PRATKANIS & ELLIOT ARONSON, AGE OF PROPAGANDA: EVERYDAY USE AND ABUSE OF PERSUASION 179 (2001); PATTERSON, supra note 189, at 148-49 (describing Clinton's repeated use of a single successful speech as a blueprint for future speeches); James Boyd White, Free Speech and Valuable Speech: Silence, Dante, and the "Marketplace of Ideas," 51 UCLA L. REV. 799, 809 (2004) ("This world consists mainly of one cliche or slogan after another; much of its misleading or dishonest; and its tendency is to suppress, not stimulate, independence of thought and judgment."); see also David Barnhizer, A Chilling of Discourse, 50 ST. LOUIS U. L.J. 361, 363 (2006) ("Few would dispute that American society is increasingly trapped in a culture of spin, lies and propaganda."); Varat, supra note 1, at 1107-08. See generally MICHAEL W. EYSENCK, PRINCIPLES OF COGNITIVE PSYCHOLOGY 333 (2001) (explaining the general idea of "framing").
(194.) See Bejesky, supra note 53, at 348-56 (examining George Bush, Jr.'s, ability to manipulate and prevent negative press coverage during his administration); Bejeskry, supra note 49, at 306-07 (discussing strict mandates and penalties restricting what White House officials can disclose); Bejesky, supra note 11, at 76-78 (explaining that the best way to restrain dissent is to restrict the flow of information to the public).
(195.) Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 653-54 (1952) (Jackson, J., concurring) ("No other personality in public life can begin to compete with him in access to the public mind through modern methods of communication."); see also Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. 1, 37 (explaining how the "government, rather than individual citizens, [is] the most pervasive participant in the marketplace" because of the expansion of the government).
(196.) See KOVACH, supra note 190, at 140-43.
(197.) See PATTERSON, supra note 189, at 74-75, 77 (noting how the average length of quotes is drastically shrinking); see also J.M. Balkin, Some Realism about Pluralism: Legal Realist Approaches to the First Amendment, 1990 DUKE L.J. 375, 408 ("Communication is scarce also in the sense that there is only so much available audience time to go around.").
(198.) GEORGE C. EDWARDS III ET AL., GOVERNMENT IN AMERICA: PEOPLE, POLITICS, AND POLICY 374 (7th ed. 1996); PRATKANIS & ARONSON, supra note 193, at 185; WILLINGHAM, supra note 185, at 191 92; Bejesky, supra note 53, at 348-49, 352-55, 363-64; Wawrzycki, supra note 193, at 228 (framing issues is a common mechanism and purpose used in sound bites); cf. EDWARD E. SMITH, COGNITION PSYCHOLOGY (2006) (detailing research in recall, updating, and forgetting memories); REISBERG, supra note 185, at 68, 84. When a story is pursued in the news with repetition in thirty-second to two-minute segments, key facts may be lost and replaced by self-interested official statements. Wawrzycki, supra note 185, at 228. Details are apt to be forgotten, but foundational memory may be retrieved. Forgotten details may create a different narrative of an event. PRATKINS & ARONSON, supra note 193, at 185-88. If the mainstream media continually repeats and updates stories with official accounts, past reporting may be obviated and replaced by easily comprehendible propaganda. Id. Repetition or meaningful association to information already stored in long-term memory can improve recollection of that information. WILLINGHAM, supra note 185, at 191.
(199.) Branzburg v. Hayes, 408 U.S. 665, 679-80, 82-83 (1972) (describing the arguments of news reporters who refused to disclose their sources based on their attempt to claim a privilege that overrides the interest of disclosure); LaRouche v. Nat'l Broad. Co., 780 F.2d 1134, 1139 (4th Cir. 1986) (mentioning that LaRouche's issue on appeal was the disclosure of confidential sources); Zerilli v. Smith, 656 F.2d 705, 713-714 (D.C. Cir. 1981); United States v. Cuthbertson, 630 F.2d 139, 146-48 (3d Cir. 1980); Miller v. Transam. Press, Inc., 621 F.2d 721, 725 (5th Cir. 1980); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 596 (1st Cir. 1980); Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436-37 (10th Cir. 1977); Cervantes v. Time, Inc., 464 F.2d 986, 992-93, n.9 (8th Cir. 1972); Emily Berman, Democratizing the Media, 35 FLA. ST. U. L. REV. 817, 827-29 (2008) (mentioning a reporter's privilege is an international norm); Eliason, supra note 101, at 390.
(200.) H.R. 3323, 109th Cong. (2005) (proposing "to maintain the free flow of information to the public" and labeling the act as the "Free Flow of Information Act of 2005"); see also Branzburg, 408 U.S. at 725 (Stewart, J., dissenting) (positing that the lack of protection could "undermine the historic independence of the press by attempting to annex the journalistic profession as an investigative arm of government" and expressing a concern that "a reporter's right to protect his source is bottomed on the constitutional guarantee of a full flow of information to the public"); N.Y. Times Co., 403 U.S. at 713, 714; Org. For a Better Austin v. Keefe, 402 U.S. 415, 419 (1971); Neb. Press Ass'n v. Stuart, 427 U.S. 539, 570 (1976); Near v. Minnesota, 283 U.S. 697, 714-15 (1931); N.Y. Times Co. v. Gonzales, 459 F.3d 160, 186 (2d Cir. 2005) (Sack, J., dissenting) (denying reporter's privilege, but arguing that a reporter privilege could be recognized by balancing the public interest in "newsgathering and maintaining a free flow of information"). Prior restraints on speech have long been difficult for the government to justify due to the fear that censorship could restrict communication. Id.
(201.) Fargo, supra note 153, at 1073.
(202.) Branzburg, 408 U.S. at 728 (Stewart, J., dissenting) ("The right to gather news implies, in turn, a right to a confidential relationship between a reporter and his source."). This interpretation seems to require perceiving an impediment to newsgathering and obstruction to the free flow principle as premises undergirding the language of the First Amendment: "Congress shall make no law.., abridging the freedom of speech or of the press." U.S. CONST. amend. I. "Law" interacts with the implementation and integrity of court processes. See id.
(203.) CODES OF PROFESSLONAL RESPONSIBILITY: ETHICS STANDARDS IN BUSINESS, HEALTH, AND LAW 187 (Rena A. Gorlin ed., 4th ed. 1999); Robert Zelnick, Essay on Source Confidentiality: Journalists and Confidential Sources, 19 NOTRE DAME J.L. ETHICS & PUB. POL'Y 541,547 (2005). The American Society of Newspaper Editors affirms that sources should normally be identified, but also that "[p]ledges of confidentiality to news sources must be honored at all costs." ASNE's Statement of Principles, AM. SOC'Y OF NEWS EDITORS (Aug. 27, 2009, 10:02 AM), http://asne.org/Article_View/Articleld/325/A SN Es-Statement-of-principles.aspx. Before the Senate Judiciary Committee, Miller testified, "[T]he principle I was defending was fairly straightforward. Once reporters give a pledge to keep a source's identity confidential, they must be willing to honor that pledge and not testify unless the source gives explicit, personal permission for them to do so ...." Reporters' Privilege Legislation: An Additional Investigation of Issues and Implications: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 19 (2005) (statement of Judith Miller, investigative reporter and senior writer at The New York Times), available at http://www.gpo.gov/fdsys/pkg/CHRG-109shrg46829/pdf/CHRG-109shrg46829.pdf.
(204.) Cohen v. Cowles Media Co., 501 U.S. 663, 663 (1991). Media outlets negotiate over how quotes are phrased when initiating contact with a source and promising anonymity. Eliason, supra note 101, at 386, 422-23; Lee, supra note 21, at 1455, 1464.
(205.) Arthur Ochs Sulzberger, Jr. & Russell T. Lewis, The Promise of the First Amendment, N.Y. TIMES, Oct. 10, 2004, at 11, available at http://nytimes.com/2004/10/10/opinion/10sulzberger.html; see also Branzburg, 408 U.S. at 679-80 (articulating the journalist's position); Eliason, supra note 101, at 386 (discussing arguments in favor of and opposing reporter's privilege); Howard Kurtz, A Question of Naming Names: Journalists' Secrecy at Issue in Scandal, WASH. POST, Oct. 5, 2003, at A01, available at http://washingtonpost.com/ac2/wp-dyn/A45070-2003Oct4 (noting the ethical importance journalists place on keeping promises of confidentiality); Lorne Manley, Editors at Time Inc. Offer Reassurances to Reporters, N.Y. TIMES, July 13, 2005, at A18, available at http://www.nytimes.com/2005/07/13/national/13time.html ("[C]onfidentiality is the lubricant of journalism."); Geneva Overholser, The Journalist and the Whistle-Blower, N.Y. TIMES, Feb. 6, 2004, at A27, available at http://www.nytimes.com/2004/02/06/opinion/the-journalist-and-the-whistle-blower.html ("[S]ources are the life blood of newsgathering.").
(206.) Branzburg, 408 U.S. at 698-99 ("From the beginning of our country the press has operated without constitutional protection for press informants, and the press has flourished."). Legislative initiatives that consider a reporter's privilege should "ensure that policy is not driven by the flurry of attention surrounding a few high-profile cases, and that a federal reporter's privilege law is not just a messy solution in search of a problem." Eliason, supra note 101, at 446. The "issue that has proven to be a Gordian knot of such complexity judges and scholars alike have been unable to cut through its intricate ties and solve the Phrygian puzzle." Paul Brewer, The Fourth Estate and the Quest for a Double Edged Shield." Why a Federal Reporters' Shield Law Would Violate the First Amendment, 36 U. MEM. L. REV. 1073, 1073-74 (2006) (arguing that enacting a federal reporters' shield law would violate the First Amendment). See generally infra Part VI (explaining that the journalist position may aggrandize the need for enhanced protection while ignoring the realities of daily newsgathering practices).
(207.) Branzburg, 408 U.S. at 694.
(208.) Zelnick, supra note 203, at 551 ("If a journalist, even one as distinguished as Judith Miller, finds that she cannot, in conscience, breach a confidential source, she should be prepared to spend some time in jail for that act of civil disobedience."). Alternatively, after Judge Hogan held Miller in contempt, Floyd Abrams, Miller's attorney, stated:
Judy is an honorable woman adhering to the highest tradition of her profession and the highest tradition of humanity. She has chosen at no benefit to herself and with no desire to be imprisoned a choice, which is to take the burdens, the personal burdens of being in jail rather than to betray a source to whom she promised confidentiality. She should be honored for that.
News Conference on CIA Leak Investigation (CNN television broadcast July 6, 2005), available at http://edition.cnn.com/transcripts/0507/06/se.01.html.
(209.) See Branzburg, 408 U.S. at 731 (Stewart, J., dissenting). Without a reporter right to protect confidential sources, whistleblowers might be reluctant to come forward, Id. There is a First Amendment right to receive information. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 757 (1976); Stanley v. Georgia, 394 U.S. 557, 564 (1969) ("[T]he Constitution protects the right to receive information and ideas."). However, only dissenters have held that the right to receive information means that some dimension of a right to gather information exists also. E.g., Branzburg, 408 U.S. at 727-29 (Stewart, J., dissenting).
(210.) Lee, supra note 21, at 1461 ("[O]ur political culture ... recognizes the importance of leaks in the democratic dialogue .... [C]ourts are hesitant to micromanage the internal affairs of other branches of government .... [C]ourts should vigorously protect the right of the press to publish confidential information."); see also Jeffrey S. Nestler, Comment, The Underprivileged Profession: The Case for Supreme Court Recognition of the Journalist's Privilege, 154 U. PA. L. REV. 201, 204-08 (2005) (discussing theories behind the phrase "Freedom of the Press").
(211.) See SOC'Y OF PROF'L JOURNALISTS, supra note 96 ("Journalists should .... [al]ways question sources' motives before promising anonymity."). See generally supra Part IV (acknowledging the difficulty of assessing the journalistic value of the confidential source's information and self-interest).
(212.) See Baquet & Keller, supra note 95, at A15 (contending that The New York Times conducts balanced and rigorous inquiries for reporting on classified programs).
(213.) See generally supra Part IV (discussing how a reporter's privilege may be abused).
(214.) See Marianne M. Jennings, Where Are Our Minds and What Are We Thinking? Virtue Ethics for a "Perfidious" Media, 19 NOTRE DAME J.L. ETHICS & PUB. POL'Y 637, 648-60 (2005) (discussing various media scandals in 1998).
(215.) Dan Barry et al., Correcting the Record; Times Reporter Who Resigned Leaves Long Trail of Deception, N.Y. TIMES (May 11, 2003), http://www.nytimes.com/2003/05/11/national/11PAPE.html; Jacques Steinberg, Executive Editor of the Times and Top Deputy Step Down, N.Y. TIMES (June 5, 2003), http://www.nytimes.com/2003/06/05/national/05SHELL-PAPE.html.
(216.) Barry, supra note 215. Blair did begin to write articles about Iraq, but seemingly did not write articles relating to alleged Iraqi weapons of mass destruction and pre-war Bush Administration claims. See Articles by Jayson Blair Since June 1998, N.Y. TIMES, http://www.nytimes.com/ref/national/BLAIR-ARCHIVE.html (last visited Feb. 29, 2012) (listing the articles written by Jayson Blair since June 1998).
(217.) See Jennings, supra note 214, at 664-65 (discussing Jack Kelley's reports on ethnic cleansing in Kosovo in 1999); Blake D. Morant, The Inescapable Intersection of Credibility, Audience and Profit in Broadcast Media's Coverage of Elections, 24 ST. JOHN'S J. LEGAL COMMENT. 479, 499-500 (2009) (explaining the acts of plagiarism by former USA Today reporter Jack Kelley); Jacques Steinberg, USA Today Finds Top Writer Lied, N.Y. TIMES, Mar. 20, 2004, at A1, available at http://www.nytimes.com/2004/03/20/us/usa-today-finds-top-writer-lied.html?scp=3&sq=&st=nyt (providing details on some of Jack Kelley's acts of plagarism).
(218.) Jennings, supra note 214, at 665; see also Morant, supra note 217, at 500 (arguing that USA Today's abandonment of its "no anonymous source" guideline was one cause of the problem).
(219.) Jennings, supra note 214, at 666 ("As an institution, we failed our readers by not recognizing Jack Kelley's problems."); Morant, supra note 217, at 500, 502; Steinberg, supra note 217, at A1.
(220.) Morant, supra note 217, at 500; see also Jennings, supra note 214, at 672 (speaking generally about the precedent that these cases left on journalism, Jennings stated, "With each footnote citation, I found myself wondering, 'I wonder if this really is a true statement,' or 'I wonder if this quote is accurate,' or 'I wonder if this interview really occurred'").
(221.) See supra notes 216-18, 220 (addressing infamous acts of plagiarism committed); infra note 222 (demonstrating the lack of oversight on the part of the news organization).
(222.) See Jennings, supra note 214, at 660-61, 682 (discussing the executive and managing editors' failure to report previous problems with Jayson Blair's performance); Morant, supra note 217, at 500 (noting that problems at USA Today were often due to using confidential sources). This may also reveal a distinction with most other corporate America industries in the case of liability, defective products, and with normal principles of respondeat superior responsibility. See generally Patricia S. Abril & Ann Morales Olazabal, The Locus of Corporate Scienter, 2006 COLUM. BUS. L. REV. 81 (2006) (analyzing principles of civil and criminal liability and respondeat superior as they relate to corporations).
(223.) Kielbowicz, supra note 22, at 435, 441 (detailing that seventy percent of the 222 individuals cooperated, while the other sixty-six individuals did not cooperate and were held in contempt of Congress). Congress's first investigation of the press and the first journalist to be held in contempt of Congress was William Duane, who published a story about a bill that was the subject of a secret Senate session. Id. at 434.
(224.) Id. at 437-40 ("[S]tories about official corruption based on anonymous sources proliferated after mid-century ....").
(225.) See C. THOMAS DIENES, LEE LEVINE & ROBERT C. LIND, NEWSGATHERING AND THE LAW 1067-90 (3d ed. 2005) (analyzing criminal and civil cases involving reporters using confidential informants).
(226.) Fargo, supranote 153, at 1072-73.
(227.) Garland v. Torre, 259 F.2d 545, 548, 551 (2d Cir. 1958) (holding that while "freedom of the press, precious and vital though it is to a free society, is not an absolute" right, and that the power to discover the truth is essential in obtaining justice).
(228.) See generally MICHAEL SCHUDSON, DISCOVERING THE NEWS: A SOCIAL HISTORY OF AMERICAN NEWSPAPERS 160-94 (1978) (discussing the evolution of newsgathering in the 1960s and 1970s); Vince Blasi, The Newsman's Privilege. An Empirical Study, 70 MICH. L. REV. 229, 229 n.2, 274-75 (1971) (describing various cases that dealt with the issue of privilege assertions).
(229.) Achal Mehra, Newsmen's Privilege." An Empirical Study, 59 JOURNALISM Q. 560, 561 (1982); Marlena Telvick & Amy Rubin, The Press and Subpoenas. An Overview, FRONTLINE, http://www.pbs.org/wgbh/pages/frontline/newswar/partl/subpoenas.html (last visited Feb. 21, 2012).
(230.) See Bejesky, supra note 53, at 343-46 (explaining that the Framers" vision in adopting the First Amendment emphasized checking government actions and holding representatives and officials responsible for their actions); supra notes 154-79 and accompanying text (highlighting that U.S. government officials are rarely held responsible for engaging in illegalities or controversial actions), In 1973, as scandal was prevalent in Washington, D.C., I.F. Stone wrote the following in his weekly column in Time magazine: "In the job of covering a capital, there are really certain basic assumptions you have to operate on. The first is that every government is run by liars, and nothing they say should be believed. That is a prima-facie assumption unless proven to the contrary." J.C., Cinema: Maniacal Zest, TlME, Dec. 3, 1973, available at http://www.time.com/time/magazine/article/0,9171,908238,00.html.
(231.) Branzburg v. Hayes, 408 U.S. 665, 668-70 (1972). Two other cases of reporters refusing to testify before grand juries were consolidated with Branzburg. See id. In the first, Earl Caldwell was subpoenaed by a grand jury to testify about interviews with Black Panther leaders and the organization's activities and objectives. Id. at 675. In the second, Paul Pappas was granted access to a Black Panthers headquarters in exchange for promising confidentiality, but he was subpoenaed by a grand jury to testify to what he experienced. Id. at 672.
(232.) Id. at 667.
(233.) Id. at 690-91.
(234.) Id. at 695.
(235.) See DIENES, LEVINE & LIND, supra note 225, at 1066-69 (describing decisions interpreting the Branzburg holding); Eliason, supra note 101, at 396, 399 ("Unquestionably, the Supreme Court decided in Branzburg that there is no First Amendment privilege protecting journalists from appearing before a grand jury or from testifying before a grand jury .... The Highest Court has spoken and never revisited the question." (quoting In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1147 (D.C. Cir. 2005))). There is a distinction between civil and criminal cases and the Supreme Court denied certiorari on whether civil cases provided an exception to the Branzburg holding and thereby a reporter's privilege. Thomas v. Lee, 547 U.S. 1187, 1187 (2006); see also N.Y. Times Co. v. Gonzales, 382 F. Supp. 2d 457, 485-508 (S.D.N.Y. 2005) (contending there is a qualified reporter's privilege in civil and criminal cases based on the First Amendment and under common law), vacated, 459 F.3d 160, 163 (2006) (holding Branzburg appears to be the controlling precedent for grand jury subpoenas, and it would not afford a reporter privilege protection to the present case).
(236.) David A. Anderson, The Origins of the Press Clause, 30 UCLA L. REV. 455, 456 (1983) (providing a historical overview of the Press Clause).
(237.) See LEONARD W. LEVY, EMERGENCE OF A FREE PRESS 266-74 (1985) (noting the lack of clarity as to what the Framers meant by "freedom of speech" and "press"); Jacobs, supra note 32, at 712 (referencing Branzburg as part of the debate over the Press Clause).
(238.) William W. Van Alstyne, The Hazards to the Press of Claiming a "Preferred Position," 28 HASTINGS L.J. 761,769 (1977); David Lange, The Speech and Press Clauses, 23 UCLA L. REV. 77, 96 (1975).
(239.) Melville B. Nimmer, Introduction--Is Freedom of the Press a Redundancy: What Does it Add to Freedom of Speech?, 26 HASTINGS L.J. 639, 655-57 (1975) ("[There is] an additional concomitant of media expression which may at times justify extending First Amendment protection").
(240.) Anderson, supra note 236, at 457.
(241.) Branzburg v. Hayes, 408 U.S. 665, 726-28 (1972) (Stewart, J., dissenting); Stewart, supra note 5, at 707 (noting that "the Free Press Clause extends protection to an institution" in comparison to most other provisions in the Bill of Rights, which "protect specific liberties or specific rights of individuals"). Early state court decisions and state legislation did recognize freedom of the press rights, but restrictions developed, particularly with regard to deviations outside of responsible journalism. Elizabeth Coenia Sims, Reporters and Their Confidential Sources: How Judith Miller Represents the Continuing Disconnect Between the Courts and the Press, 5 FIRST AMEND. L. REV. 433, 463-64 (2007).
(242.) C. Edwin Baker, Reclaiming the First Amendment: Constitutional Theories of Media Reform: The Independent Significance of the Press Clause Under Existing Law, 35 HOFSTRA L. REV. 955, 956 (2007); see Anderson, supra note 21, at 66, 74-75; Anderson, supra note 236, at 457; Papandrea, supra note 21, at 300.
(243.) Eliason, supra note 101, at 444.
(244.) See supra notes 231-35; see also McKevitt v. Pallasch, 339 F.3d 530, 533 (7th Cir. 2003) ("When the information in the reporter's possession does not come from a confidential source, it is difficult to see what possible bearing the First Amendment could have on the question of compelled disclosure.").
(245.) Branzburg, 408 U.S. at 680, 698-99; Garland v. Torre, 259 F.2d 545,548 (2d Cir. 1958) (stating freedom of the press is not absolute); MARC A. FRANKLIN ET AL., MASS MEDIA LAW 579-80 (7th ed. 2005). But see Branzburg, 408 U.S. at 728 (Stewart, J., dissenting) ("The right to gather news implies, in turn, a right to a confidential relationship between a reporter and his source."); Beach v. Shanley, 465 N.E.2d 304, 310 (N.Y. 1984) (holding that a Shield Law permits reporters to retain their information and does not "run afoul of constitutional proscription against laws that suspend or impair grand jury's power ...."). United States District Court Judge Hogan held that "[i]n the absence of a grand jury acting in bad faith or with the sole purpose of harassment, Branzburg makes clear that neither the First Amendment nor common law protect reporters from their obligations shared by all citizens to testify before the grand jury when called to do so." In re Special Counsel Investigation, 332 F. Supp. 2d 26, 28 (D.D.C. 2004) (mem.). The need for an absolute privilege has only been proposed in dissenting opinions. See Branzburg, 408 U.S. at 728. Amid high-profile confusion, there were legislative initiatives, including the proposed Free Flow of Information Act of 2005, which would have granted reporters a privilege against compelled testimony and provided a shield to reporters from having to reveal confidential sources for cases. Free Flow of Information Act of 2005, S. 1419, 109th Cong. (2005). The policy behind the Act was to ensure division between the federal government and the media. See id. (proposing a federal reporters' shield law).
(246.) Brewer, supra note 206, at 1089.
(247.) See, e.g., LaRouche v. Nat'l Broad. Co., 780 F.2d 1134, 1139 (4th Cir. 1986); United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 598 (1st Cir. 1980); Miller v. Transamerican Press Inc., 621 F.2d 721, 726-27 (5th Cir. 1980); Riley v. City of Chester, 612 F.2d 708, 716-17 (3d Cir. 1979); Silkwood v. Kerr-McGee Corp., 563 F.2d 433,435 (10th Cir. 1977); Farr v. Pitchess, 522 F.2d 464, 467-68 (9th Cir. 1975); Baker v. F & F. Inv., 470 F.2d 778, 784-85 (2d Cir. 1972); Cervantes v. Time, Inc., 464 F.2d 986, 990-91 (8th Cir. 1972). Federal courts have devised various balancing tests for applicable statutes and the Department of Justice has its own internal, non-statutory rules to guide when a subpoena can and should be issued to obtain a journalist's testimony or records. Eliason, supra note 101, at 397-98. The balancing of interests is conducted on a case-by-case basis. See Branzburg, 408 U.S. at 710 (Powell, J., concurring).
(248.) DIENES, LEVINE & LIND, supra note 225, at 649-50; Fargo, supra note 153, at 1069-70. But see Zelnick, supra note 203, at 541-44 (discussing three cases where reporters were fined or imprisoned for refusing to disclose sources).
(249.) Zelnick, supra note 203, at 549; see also DIENES, LEVINE & LIND, supra note 225, at 659-60 (discussing various state reporters' shield statutes). The D.C. Circuit held that a qualified reporter's privilege exists, but only if "every reasonable alternative source of information" has been exhausted by the petitioning party and if the testimony is an essential matter before the court. Lee v. U.S. Dep't of Justice, 413 F.3d 53, 57 (D.C. Cir. 2005). Six reporters from several news organizations were held in civil contempt for failing to name confidential sources. Fargo, supra note 153, at 1098. Judge Hogan wrote, "Whatever extent lower courts around the country have eroded the periphery of the Branzburg opinion, the core of the opinion stands strong. The facts of this case fall entirely within that core ..." In re Special Counsel Investigation, 332 F. Supp. 2d at 31. Judges disagree over when the applicable facts warrant a balancing test. Id. at 31-32. Judge Hogan noted that the information contained in the grand jury materials would outweigh any qualified privilege under the "most stringent of balancing tests." Id. at 32.
(250.) Branzburg, 408 U.S. at 706-07. In Branzburg, the Court considered the Department of Justice's guidelines and believed the particular factual circumstances of each case made executive discretion desirable. Id. The guidelines have existed since 1970. Fargo, supra note 153, at 1071.
(251.) 28 C.F.R. [section] 50.10(f) (2006).
(252.) See supra Part IV (discussing the use of authorized leaks); supra notes 246-51 (discussing screening protections); infra notes 380-81 (noting that the use of confidential sources is a ubiquitous practice). Journalists and media organizations are subpoenaed hundreds of times per year. REPORTERS COMM. FOR FREEDOM OF THE PRESS, AGENTS OF DISCOVERY: A REPORT ON THE INCIDENT OF SUBPOENAS SERVED ON THE NEWS MEDIA IN 2001, at 4 (Lucy A. Dalglish et al. eds., 2003), available at http://www.rcfp.org/sites/default/files/agents-of-discovery.pdf. Confidential sources must be revealed in only a fraction of those cases. Id.
(253.) See John E. Osborn, The Reporter's Confidentiality Privilege: Updating the Empirical Evidence After a Decade of Subpoenas, 17 COLUM. HUM. RTS. L. REV. 57, 73-74 (1985) (noting how reporters choose to use confidential sources when reporting on a multitude of issues); cf United States v. Criden, 633 F.2d 346, 356-57 (3d Cir. 1980) (referencing Justice Powell's concurring opinion discussing the importance of balancing interests, and espousing that a journalist "privilege is absolute" as long as there are "no countervailing constitutional concerns at stake"); Daniel Joyce, The Judith Miller Case and the Relationship Between Reporter and Source. Competing Visions of the Media's Role and Function, 17 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 555, 576 (2007) (noting Judge Sentelle's remark that journalists have the "right to print or communicate anything they choose").
(254.) See supra notes 246-51 (citing to cases, statutes, and other information regarding the balancing of interests when deciding whether to protect confidential sources). Judge Hogan addressed the Attorney General's discretion by explaining that "DOJ guidelines are fully satisfied by the facts of this case," and that even if "the journalists did possess a qualified privilege ... the ex parte affidavit has also established that Special Counsel would be able to meet even the most stringent of balancing tests." In re Special Counsel Investigation, 332 F. Supp. 2d at 32.
(255.) See generally Branzburg, 408 U.S. at 702 (reasoning that a shield privilege would need to be absolute to foster a public benefit of freedom of information, because the uncertainty at the time of receiving the information and deciding to publish a story could obviate the utility of the privilege). Analysis herein has focused on the substantive utility of the message, but other factors that could influence the journalist's decision include personal interpretation of ethical standards and the possibility of being prosecuted for not revealing sources when bereft of clear standards. See Papandrea, supra note 2 l, at 260-62 (explaining that the press is mindful of its ethical responsibility not to relay every piece of classified information received, and that the government has not ruled out the possibility of ever prosecuting a member of the press); Dennis F. Thompson, Democratic Secrecy, 114 POL. SC1. Q. 181, 183-84 (1999) (asserting that partial substantive information analysis in the context of national security can be employed either after the fact or by partially unveiling secrecy in exchange for some level of democratic accountability).
(256.) Branzburg, 408 U.S. at 681 82. The Court denied that failing to grant a privilege would prevent sources from coming forward or restrict journalists reporting, and noted that reporters are free to use anonymous sources and publish whatever they choose within the bounds of the law. Id. But see N.Y. Times Co. v. Gonzales, 459 F.3d 160, 186 (2d Cir. 2006) (Sack, J., dissenting) (explaining that compelling journalists to reveal their confidential sources may hinder their ability to secure information from those primary and confidential news sources).
(257.) See supra Part II (analyzing the nature and use of classified information).
(258.) See generally supra Parts IV V (developing the ideas of authorized and unauthorized leaks).
(259.) See generally Joyce, supra note 253, at 580-83 (looking at the reporters' privilege guaranteed in the European Convention for the Protection of Human Rights and Fundamental Freedoms). From an international perspective, balance is found in the European Convention for the Protection of Human Rights and Fundamental Freedoms, which recognizes freedom of expression but also that "national security .... public safety .... [and] prevention of disorder or crime" are limitations on those rights, and the European Court of Justice jurisprudence upholds a journalist's right of confidentiality in civil cases. Id.
(260.) See Bejesky, supra note 11, at 91-94 (explaining that the Bush Administration "used classified information to issue threat warnings" and presented "unsubstantiated threat scenarios" to the media and the general American public); Bejesky, supra note 53, at 348-62 (discussing how the Bush Administration manipulated press coverage with favorable information to control public perception); Bejesky, supra note 49, at 321-26 (asserting that the Bush Administration misrepresented nuclear inspection updates to gamer support for the invasion); supra Part III (analyzing the potential consequences of using declassified information).
(261.) See supra Part V(A) (exploring the recent emergence of government whistleblowers).
(262.) See supra Part V(A) (detailing the information provided by whistleblowers in these and other situations involving the Bush Administration).
(263.) See Papandrea, supra note 21, at 233. Specifically relevant is the fact that in any prosecution against a nongovernmental actor for disseminating national security information, the government must demonstrate not only that the disclosure posed an immediate, serious, and direct threat to national security, but also that the offender either intended the disclosure to harm the United States or help a foreign nation, or that the offender was recklessly indifferent to the harm that the disclosure would cause. Id.; see also supra Parts III IV (examining how authorized leaks and selective declassification pose particular problems in assessing the degree of embellishment).
(264.) See In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 998-99 (D.C. Cir. 2005) (Tatel, J., concurring) ("Because leak cases typically require the government to investigate itself, if leaks reveal mistakes that high-level officials would have preferred to keep secret, the administration may pursue the source with excessive zeal, regardless of the leaked information's public value."); supra Part V (addressing the implications and values of unauthorized leaks).
(265.) N.Y. Times Co. v. United States, 403 U.S. 713, 713 (1971) (per curiam) (noting the government "carries a heavy burden of showing justification for the imposition" of a prior restraint even with material involving national security information). See generally John Cary Sims, Triangulating the Boundaries of Pentagon Papers, 2 WM. & MARY BILL RTS. J. 341 (1993) (explaining the holding in New York Times Co. and its proper application in future prior restraint cases involving national security information).
(266.) STEPHEN DYCUS ET AL., NATIONAL SECURITY LAW 634-38 (1990).
(267.) See N. Y. Times Co., 403 U.S. at 714.
(268.) Id. at 725-26 (Brennan, J., concurring) ("[T]he First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result."); Id. at 733 (White, J., concurring) (contending that there was no comprehensive protection for the press to publish, but that the preference to avoid "prior restraints" and the government's failure to prosecute under the Espionage Act or other statutory source influenced the decision). Likewise, government restrictions that thwart speech receive strict scrutiny review in which the government must prove a compelling interest. See C. Thomas Dienes, When the First Amendment is Not Preferred." The Military and Other "Special Contexts," 56 U. CIN. L. REV. 779, 781 (1988).
(269.) Lee, supra note 21, at 1473 (noting the media is not bound by any duty of nondisclosure when it acquires leaked information). But see Bartnicki, 532 U.S. at 533 n.19 ("It would be frivolous to assert ... that the First Amendment ... confers a license on either the reporter or his news sources to violate valid criminal laws." (quoting Branzburg v. Hayes, 408 U.S. 665, 691 (1972))); Fla. Star v. B.J.F., 491 U.S. 524, 541 (1989) ("[W]here a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed ... only when narrowly tailored to a state interest of the highest order ....").
(270.) Lee, supra note 21, at 1454, 1464.
(271.) See David Rudenstine, Transcript of Weapons of Mass Destruction, National Security, and a Free Press: Seminal Issues as Viewed Through the Lens of the Progressive Case, 26 CARDOZO L. REV. 1337, 1338 (2005) (explaining that six months later the government dropped the case because another media outlet published the information).
(272.) Papandrea, supra note 21, at 273.
(274.) United States v. Progressive, Inc., 467 F. Supp. 990, 994 (W.D. Wis. 1979).
(275.) See Rudenstine, supra note 271, at 1338-39. Former Secretary of Defense Schlesinger explains that the "Constitution allows the press to be irresponsible but not to the extent that it may pose a threat to thousands of lives." Id. at 1343-47.
(276.) See Jacobs, supra note 32, at 702-03 (citing Snepp v. United States, 444 U.S. 507, 510-11 (1980)); see also Papandrea, supra note 21, at 281-82 ("Current First Amendment doctrine draws a sharp distinction between the First Amendment rights of those who have received access to classified information as a result of having a position of trust with the government such as government employees and contractors--and everyone else.").
(277.) See discussion supra Part VI.D.
(278.) 18 U.S.C. [section] 793(d)-(e) (2006); see Harold Edgar & Benno C. Schmidt, Jr., The Espionage Statutes and Publication of Defense Information, 73 COLUM. L. REV. 929, 940 (1973) (discussing the legislative history of the Espionage Act); see also United States v. Zehe, 601 F. Supp. 196, 197 (D. Mass. 1985) (stating the Espionage Act could criminalize actions by foreigners in foreign jurisdictions).
(279.) 18 U.S.C. [section] 793(a)-(b); see Edgar & Schmidt, supra note 278, at 965-69 (explaining subsections 793(a)-(b)).
(280.) See 18 U.S.C. [section] 794(a) (b). There is a death penalty for espionage. See id.; see also Sarah Frances Cable, An Unanswered Question in Kennedy v. Louisiana: How Should the Supreme Court Determine the Constitutionality of the Death Penalty for Espionage?, 70 LA. L. REV. 995, 996, 1020 (2010) (stating no one has been executed for espionage since 1953, and noting the lack of jurisprudence on the death penalty for espionage). The death penalty and other severe penalties for espionage are also found in military law. See 10 U.S.C. [section] 904 (2006); e.g., Sarah Kershaw, Washington Guardsman Charged with Trying to Spy for Al Qaeda, N.Y. TIMES (Feb. 19, 2004), http://www.nytimes.com/2004/02/19/us/washington-guardsman-charged-with-trying-to-spy-for-al-qaeda.html ("Specialist Anderson's case is the latest example of an American military soldier being formally charged with espionage .... [The charges] could carry the death penalty ...."); U.S. Soldier Convicted as a Spy in Gulf War, N.Y. TIMES (Dec. 3, 1991), http://www.nytimes.com/1991/12/13/us/us-soldier-convicted-as-a-spy-in-gulf-war.html ("An American soldier who admitted to providing a Jordanian intelligence agent with information on the buildup for the Persian Guld [sic] war has been sentenced to 34 years in prison ....").
(281.) See 18 U.S.C. [section] 794(a)-(b). This theme is seemingly more commonplace in Hollywood. See generally Andrew Robinson, Top Ten Spy Films, FILM STAGE (July 26, 2010, 6:16 PM), http://thefilmstage.com/features/top-ten-spy-films/. But see, e.g., Lee v. Dep't of Justice, 327 F.3d 53 (D.C. Cir. 2005); United States v. Regan, 228 F. Supp. 2d 742 (E.D. Va. 2002); Espionage Case of Former Sergeant in Hands of Jury, CNN (Feb. 10, 2003), http://articles.cnn.com/2003-02-10/justice/regan.trial_1_brian-patrick-regan-nina-ginsberg-china-and-libya?_s=PM:LAW ("Regan was arrested with a spiral notebook containing encrypted codes describing locations of a missile launcher in the northern no-fly zone of Iraq and of another spot in China."). An example of this theme involves Wen Ho Lee, a Chinese-American computer scientist employed by the Department of Energy ("DOE") who was initially suspected of espionage and later charged with fifty-nine counts of mishandling classified computer files. Lee, 327 F.3d at 55-56. A Times article citing anonymous government sources alleged that Lee downloaded computer codes for nuclear weapons to an unsecured computer. Id. at 56. The government ultimately dismissed fifty-eight counts of mishandling, and Lee pleaded guilty to just one count, Id. at 55. However, Lee filed a Privacy Act claim against the government for allegedly leaking his personal information to media outlets. Id. (citing 5 U.S.C. [section] 552(a) (2006)). Another example involves Brian Patrick Regan, a retired Air Force sergeant and contract employee to the National Reconnaissance Officer ("NRO") who, in 2001, unsuccessfully sought to sell classified intelligence information to China, Iran, Iraq, and Libya. Regan, 228 F. Supp. 2d at 745. Regan was indicted on multiple counts of attempted espionage and gathering national defense information. Id. at 745-46. The government sought the death penalty and alleged that the two statutory aggravating factors in the case were "(1) that '[i]n the commission of the offense the defendant knowingly created a grave risk of substantial danger to the national security,' and (2) that '[i]n the commission of the offense the defendant knowingly created a grave risk of death to another person.'" Id. at 746 (citing 18 U.S.C. [section] 3592(b)(2)-(3)).
(282.) See United States v. Morison, 844 F.2d 1057 (4th Cir. 1988); Jamie L. Hester, The Espionage Act and Today's "High-Tech Terrorist," 12 N.C.J.L. & TECH. ONLINE ED. 177, 183 (2011); Papandrea, supra note 21, at 296.
(283.) Morison, 844 F.2d at 1057, 1060-61.
(284.) See 18 U.S.C. [section] 793(d)-(e) (2006); Morison, 844 F.2d at 1060, 1063.
(285.) See Morison, 844 F.2d at 1081-84 (Wilkinson, J., concurring). Judge Wilkinson stated,
The First Amendment interest in informed popular debate does not simply vanish at the invocation of the words "national security." National security is public security, not government security from informed criticism. No decisions are more serious than those touching on peace and war; none are more certain to affect every member of society .....
The way in which those photographs were released, however, threatens a public interest that is no less important the security of sensitive government operations .... Intelligence gathering is critical to the formation of sound policy, and becomes more so every year with the refinement of technology and the growing threat of terrorism. Id. at 1081.
(286.) See James Risen, Clinton Did Not Consult C.LA. Chief on Pardon, Official Says, N.Y. TIMES (Feb. 17, 2001), http://www.nytimes.com/2001/02/17/us/clinton-did-not-consult-cia-chief-on-pardon-official-says.html.
(287.) See United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006), aff'd, 557 F.3d 192 (4th Cir. 2009). While the media apparently focused more attention on the Miller, Wilson, Plame, and Libby chronology, the Rosen case arguably involved facts with greater public interest. See id.; Jonathan Adler & Michael Berry, A Troubling Prosecution, NAT'L REV. ONLINE (Aug. 21, 2006), http://www.nationalreview.com/articles/218521/troubling-prosecution/jonathan-hadler ("[G]iven the specific acts charged by the government in this case, any time a lobbyist, reporter, scholar, or policy wonk researches a national-security issue or questions a Defense Department employee, resulting in the disclosure of classified material, he could be under threat of federal prosecution."). A prime distinction between the Rosen case and the Miller case is that the former cases involved indictments under the Espionage Act because the defendants were "not entitled to receive" classified information. Compare Rosen, 445 F. Supp. 2d at 607, 611 (citing 18 U.S.C. [section] 793(d)-(e), (g) (2006)), and Government's Consolidated Responses to Defendants' Pretial Motion at 2, 16-17, in Rosen, 487 F. Supp. 2d 721 (E.D. Va. 2007) (No. 1:05cr225), available at http://www.fas.org/sgp/jud/aipac013006.pdf (noting the distinguishing fact that "the defendants, by their own admission, are not members of the press and enjoy no constitutional rights reserved to the press"), with In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1142 (D.C. Cir. 2005) (involving journalist privilege assertions that sought to prevent revealing the chain of custody of national security information in violation of a court order to determine how classified information became public).
(288.) United States v. Rosen, 557 F.3d 192, 194 (4th Cir. 2009); Rosen, 445 F. Supp. 2d at 608-10. Some of the classified information related to "U.S. strategy pertaining to a certain Middle East country," "potential attacks on United States forces in Iraq," and "a foreign government's covert actions in Iraq." Rosen, 445 F. Supp 2d at 608-10.
(289.) Rosen, 445 F. Supp. 2d at 602, 607 (citing 28 U.S.C. [section] 793(d)-(e), (g)).
(290.) See N.Y. Times Co. v. United States, 403 U.S. 713, 738 n.9 (1971) (White, J., concurring) ("[I]t seems undeniable that a newspaper, as well as others unconnected with the Government, are vulnerable to prosecution under [section] 793(e) [of the Espionage Act] if they communicate or withhold the materials covered by that section.").
(291.) Rosen, 445 F. Supp. 2d at 637 ("[B]oth common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.").
(292.) See id. at 636.
(293.) See id. at 633-34 (citing Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (per euriam)).
(294.) Id. at 626.
(295.) Jerry Markon, Sentence Reduced in Pentagon Case, WASH. POST (June 12, 2009), http://www.washingtonpost.com/wp-dyn/content/article/2009/06/11/AR2009061104280_pf.html.
(296.) Jerry Markon, Judge Formally Dismisses Case Against Two Former AIPAC Lobbyists, WASH. POST (May 4, 2009), http://www.washingtonpost.com/wpdyn/content/article/2009/05/04/AR2009050402533.html.
(297.) See Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks. Hearing Before the H. Comm. on the Judiciary, 111th Cong. 29 (2010) (statement of Abbe D. Lowell, Esq.), available at http://judiciary.house.gov/hearings/printers/111th/111-160_63081.PDF (explaining how the overclassification of information has resulted in an ambiguous statute); see also Jonathan Peters, WikiLeaks Would Not Qualify to Claim Federal Reporter's Privilege in Any Form, 63 FED. COMM. L.J. 667, 676 (2011) (arguing that WikiLeaks cannot protect a confidential source because it is not engaged in investigative reporting, "a process that involves more than the mere dumping of documents and requires the minimization of harm").
(298.) See Peters, supra note 297, at 669, 689-90 ("WikiLeaks has released more than 2,000 U.S. diplomatic cables, and nearly 400,000 classified U.S. documents about the war in Iraq .... [T]he website has released, since 2007, documents about corruption in the family of former Kenyan leader Daniel Arap Moi ...."); Raffi Khatchadourian, No Secrets." Julian Assange's Mission for Total Transparency, NEW YORKER (June 7, 2010), http://www.newyorker.com/reporting/2010/06/07/100607fa_fact_khatchadourian ("[T]he site has published an extensive catalogue of secret material, ranging from the Standard Operating Procedures at Camp Delta, in Guantanamo Bay, and the 'Climategate' e-mails from the University of East Anglia, in England, to the contents of Sarah Palin's private Yahoo account."); see also Julian Assange Back in Court to Fight Extradition, FOXNEWS.COM (July 12, 2011), http://www.foxnews.com/world/2011/07/12/julian-assange-back-in-court-to-fight-extradition/ [hereinafter Extradition] ("Assange's disclosures on WikiLeaks of classified U.S. documents has infuriated the Pentagon, embarrassed U.S. State Department diplomats and energized critics of American foreign policy ....").
(299.) WikiLeaks. Suspect Bradley Manning Faces Twenty-Two New Charges, BBC (Mar. 2, 2011), http://www.bbc.co.uk/news/world-us-canada-12628983.
(300.) See Peters, supra note 297, at 668; see also Khatchadourian, supra note 298 ("[E]ven though the site has received more than a hundred legal threats, almost no one has filed suit."), In 2008, a Swiss bank sued WikiLeaks for publishing confidential documents, but the bank later withdrew its suit. Khatchadourian, supra note 298.
(301.) See Michael Hirsh, 'Countless Innocent Individuals' at Risk, NAT'L J. (Nov. 28, 2010), http://www.nationaljournao.com/nationalsecurity/state-dept-countless-innocent-individuals-at-risk-20101128.
(302.) See Peters, supra note 300, at 680.
(303.) Bejesky, supra note 8, at 811-12, 875-82; see supra Part III.
(304.) U.S. Soldier Linked to Iraq Helicopter Video Leak Charged, BBC (July 6, 2010), http://www.bbc.co.uk/news/10529110.
(305.) See discussion supra Part V.B.
(306.) See Extradition, supra note 298.
(307.) See discussion supra Part VI.A-C.
(308.) See supra note 16.
(309.) Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993).
(310.) See S. REP. NO. 110-76, at 211 (2007) [hereinafter SSC1/2007], available at http://intelligence.senate.gov/110 76.pdf (discussing how the decision to send Wilson to Niger was reached); SSCI/2004, supra note 9, at 43, 55,443 ("In October 2002, CIA's NESA [Office of Near Eastern and South Asian Analysis] published a classified Iraq handbook .... In the section on Iraq's nuclear program NESA wrote, 'Iraq may be trying to acquire 500 tons of uranium ... from Niger.'").
(311.) See SSCI/2004, supra note 9, at 42, 443.
(312.) See SSCI/2007, supra note 310, at 211; SSCI/2004, supra note 9, at 36-83, 443. The SSCI assessed the chain of custody of Wilson's conclusions. See SSCI/2007, supra note 310, at 211; SSCI/2004, supra note 9, at 36-83, 443; see also Joseph C. Wilson IV, Op-Ed, What I Didn't Find in Africa, N.Y. TIMES (July 6, 2003), http://www.nytimes.com/2003/07/06/opinion/what-i-didn-t-find-in-africa.html. Wilson's op-ed might have given "the public an important basis for judging the value that should have been given to the administration's claims." Sims, supra note 241, at 476. This could have been important, but Wilson did not publicly reveal this before the invasion to correct inaccuracies, and noted that after the January 2003 State of the Union address, he believed that "perhaps the president was speaking about one of the other three African countries that produce uranium." See Wilson, supra.
(313.) See Niger: Sale of Uranium to Iraq is Unlikely, DEP'T OF STATE (Mar. 1, 2002), http://www.state.gov/documents/organization/122499.pdf (later declassified document); Wilson, supra note 312 (noting that there was "too much oversight" over the uranium industry in Niger "for a sale to have transpired").
(314.) See Address Before a Joint Session of the Congress on the State of the Union, 1 PUB. PAPERS 82, 88 (Jan. 28, 2003).
(315.) See Bejesky, supra note 8, at 821-27, 833; Bejesky, supra note 49, at 321-31.
(316.) See Wilson, supra note 312 ("Based on my experience with the administration in the months leading up to the war, I have little choice but to conclude that some of the intelligence related to Iraq's nuclear weapons program was twisted to exaggerate the Iraqi threat.").
(317.) Robert D. Novak, Mission to Niger, WASH. POST (July 14, 2003), http://www.washingtonpost.com/wp-dyn/content/article/2005/10/20/AR2005102000874.html; SSCI/2004, supra note 9, at 443.
(318.) See Kielbowicz, supra note 22, at 464 (noting that similar articles surfaced in the media days after Novak's op-ed column). After serving a stint on the "Greece desk," Plame posed as a State Department employee in Athens and later posed as an energy firm employee. David Corn, What Valerie Plaine Really Did at the CIA, NATION (Sept. 6, 2006), http://www.thenation.com/article/what-valerie-plame-really-did-cia. She joined the CIA's Counterproliferation Division in 1997 and later headed the Joint Task Force on Iraq. Id. Senator Diane Feinstein noted on the floor of Congress that "for [Plame] to be essentially 'outed' by the administration can put every CIA agent in jeopardy." Zelnick, supra note 203, at 546.
(319.) Amended Complaint at 5, Wilson v. Libby, 498 F. Supp. 2d 74 (D.D.C. 2006) (No. 06-1258), 2006 WL 2644626, at *3; see Papandrea, supra note 21, at 274. Papandrea noted the following:
[R]evelations concerning the CIA's involvement in conducting drug experiments on unsuspecting people, intercepting American communications overseas, and spying on American citizens, as well as the FBI's counterintelligence covert action program directed against Americans (COINTELPRO), made the debate over criminalizing the unmasking of covert CIA agents more complex than it might have appeared at first blush.
Papandrea, supra note 21, at 274.
(320.) 50 U.S.C. [section][section] 421-426 (2006). Section 421 states the following:
(a) Disclosure of information by persons having or having had access to classified information that identifies covert agent Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under Title 18 or imprisoned not more than 15 years, or both.
(b) Disclosure of information by persons who learn identity of covert agents as result of having access to classified information Whoever, as a result of having authorized access to classified information, learns the identity of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under Title 18 or imprisoned not more than 10 years, or both.
(c) Disclosure of information by persons in course of pattern of activities intended to identify and expose covert agents Whoever, in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, discloses any information that identifies an individual as a covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such individual and that the United States is taking affirmative measures to conceal such individual's classified intelligence relationship to the United States, shall be fined under Title 18 or imprisoned not more than three years, or both.
Id. [section] 421(a)-(c). See generally Simmons, supra note 90, at 850 (noting President Reagan also enforced criminal penalties that prohibited publishing information about covert activities and identities of intelligence agents).
(321.) National Security Act, 50 U.S.C. [section] 403-3 (2006); see Jehl, supra note 18 (illustrating the tussle between a CIA mission to be objective and independent and to be allegiant to the incumbent administration). A sub-issue was whether the 1999 independent counsel statute could be used to investigate top officials. See John Padilla & Alex Wagner, The "Outing" of Valerie Plame: Conflicts of Interest in Political Investigations After the Independent Counsel Act's Demise, 17 GEO. J. LEGAL ETHICS 977, 977 (2004) ("The furor over possible violations of federal law relating to the leak of a CIA operative's identity in the fall of 2003 brought about calls for an independent investigation (and possibly eventual prosecution) of senior officials in the administration of President George W. Bush.").
(322.) Eunnice Eun, Journalists Caught in the Crossfire: Robert Novak, the First Amendment, and Journalist's Duty of Confidentiality, 42 AM. CRIM. L. REV. 1073, 1075-76 (2005).
(323.) See Sims, supra note 241, at 473-74 ("[Nleither Judith Miller nor Matthew Cooper reported the information regarding Plame's identity before Robert Novak's column ran."). Miller learned the information from her source during an interview. Id. at 474-75.
(324.) Eun, supra note 322, at 1077 (citing Howard Kurtz, A Hot-Water Leak, WASH. POST, Oct. 1, 2003, at C1). Joseph Wilson remarked on Nightline that "there's some question as to whether or not the reporter, by not revealing that source, is perhaps an accessory [to a crime]." Id.
(325.) See In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1153-55 (D.C. Cir. 2005) (Sentelle, J., concurring) ("The Supreme Court has rejected a common law privilege for reporters subpoenaed to give evidence to grand juries, In my view that rejection stands ...."); Id. at 1163-66, 1173-80 (Tatel, J., concurring) (favoring a common law privilege, but noting that it could not be sustained on the facts); N.Y. Times Co. v. Gonzales, 459 F.3d 160, 181 (2d Cir. 2006) (Sack, J., dissenting) ("[O]ne could hardly expect to find uniformity among thirty-one state legislatures and myriad state and federal courts that established, or confirmed the existence of, a qualified privilege for journalists to protect the identity of their sources.").
(326.) See In re Grand Jury Subpoena, 438 F.3d at n.2; In re Special Counsel Investigation, 338 F. Supp. 2d 16 (D.D.C. 2004); JOHN R. MACARTHUR, SECOND FRONT: CENSORSHIP AND PROPAGANDA IN THE 1991 GULF WAR xxxi-xxxii, xli (2d ed. 2004); Eliason, supra note 101, at 391; Eun, supra note 322, at 1085, 1087; Robert A. Heverly, Law as Intermediary, 2006 MICH. ST. L. REV. 107, 120 (2006); Jess Bravin, Media-Sourcing Debate on Deck at Capitol, WALL ST. J. (Dec. 22, 2006), http://benton.org/node/4339; Judith Miller, My Four Hours Testifying in the Federal Grand Jury Room, N.Y. TIMES (Oct. 16, 2005), http://www.nytimes.com/2005/10/16/national/16miller.html; New York Times Reporter Jailed, CNN (Oct. 28, 2005), http://articles.cnn.com/2005-07-06/justice/reporters.contempt_1_undercover-cia-officer-matthew-cooper-jail-time?_s=PM:LAW.
(327.) See In re Special Counsel Investigation, 332 F. Supp. 2d 26, 32 (D.D.C. 2004) (reasoning Cooper had no privilege excusing him from testifying before the grand jury); In re Special Counsel Investigation, 346 F. Supp. 2d 54 (D.D.C. 2004) (holding compliance with the additional subpoenas served upon Cooper would not be unreasonable or oppressive); Joyce, supra note 253, at 561 (noting Cooper cooperated after Rove released him from his obligation to protect Rove's identity).
(328.) Kielbowicz, supra note 22, at 428.
(329.) Eliason, supra note 101, at 390; Eun, supra note 322, at 1075-76.
(330.) See Allen, supra note 130, at 912-13 ("The Bush [A]dministration was not happy about Wilson's public comments and, it appears by all accounts, took steps at the highest levels to punish him."); Envoy Says Leak Endangers CIA Wife, CBS NEWS (Oct. 6, 2003), http://www.cbsnews.com/stories/2003/10/07/national/main576877.shtml; see also infra notes 331-39 (discussing Plame's JTFI operations).
(331.) See Corn, supra note 318.
(333.) Bejesky, supra note 8, at 875-82; Bejesky, supra note 53, at 348-62; Lewis & Reading-Smith, supra note 45 (stating President Bush and his top administration officials made at least 935 false statements during the two years after September 11, 2001, "about the national security threat posed by Saddam Hussein's Iraq"). See generally S. SELECT COMM. ON INTELLIGENCE, THE USE BY THE INTELLIGENCE CMT OF INFO. PROVIDED BY THE IRAQI NAT'L CONG., S. REP. NO. 109-330, at 200-04 (2004).
(334.) S. REP. No. 108-301, at 24-25, 258-59 (explaining the SSCI conducted an "unprecedented outside examination of a broad range" of IC human intelligence (HUMINT) operations).
(335.) See Bejesky, supra note 49, at 301-03, 332 n.182; Corn, supra note 318 (noting Iraqi scientists also denied that there were any WMD programs).
(336.) S. REP. NO. 108-301, at 260, 417 ("[T]he intelligence community had limited actionable intelligence on suspect Iraqi weapons of mass destruction sites."); Bejesky, supra note 49, at 316-34 (discussing inspection reports).
(337.) Bejesky, supra note 49, at 303-11 (pointing out that a major spike in false statements occurred in early September of 2002); Lewis & Reading-Smith, supra note 45.
(338.) Corn, supra note 318; see also S. REP. NO. 108-301, at 262-63. The SSCI remarked that "from late summer 2002 until the start of ...
[the invasion] in March 2003, the CIA 'dramatically picked up the pace' of HUMINT collection according to a CIA collector." S. REP. NO. 108-301, at 263. There were up to fifty CIA agents assigned to JTFI, Corn, supra note 318, and they produced and disseminated over 400 intelligence reports since its creation. See S. REP. NO. 108-301, at 262.
(339.) E.g., S. SELECT COMM. ON INTELLIGENCE, THE USE BY THE INTELLIGENCE CMT OF INFO. PROVIDED BY THE IRAQI NAT'L CONG., S. REP. NO. 109-330, at 21, 23-24; Corn, supra note 318 (explaining that one JTFI officer stated "[t]he War came so suddenly ... [that w]e didn't have enough information to challenge the assumption that there were WMDs"). The SSCI wrote that numerous interviews with intelligence analysts and documents provided to the Committee indicate that analysts and collectors assumed that sources who denied the existence or continuation of WMD programs and stocks were either lying or not knowledgeable about Iraq's program, while those sources who reported ongoing WMD activities were seen as having provided valuable information. S. REP. NO. 108-301, at 21. They discarded alternative information, and managers and supervisors did not "encourage[e] analysts [and information collectors] to challenge their assumptions" or question their assumptions about the information they were gathering. Id. at 23-24.
(340.) Bejesky, supra note 8, at 875-82 (quoting former CIA Director Standfield Turner, who said the Bush Administration was overstating the "facts about the Iraqi weapons of mass destruction in making its case for invading the country"); Lewis & Reading-Smith, supra note 45 ("[The Bush Administration] made 232 false statements about weapons of mass destruction in Iraq and another 28 false statements about Iraq's links to Al Qaeda.").
(341.) Bejesky, supra note 49, at 331-32 (explaining the media's constant repetition of phrases like "the search for Iraq's weapons of mass destruction ... convey[ed] to the public that the weapons" existed). See generally Bejesky, supra note 53, at 348-66, 388-92 (explaining the media's obligations to investigate and challenge allegations of political officials).
(342.) See infra notes 344-55 and accompanying text. See generally supra Part VI.A.
(343.) See infra notes 344-55 and accompanying text.
(344.) Papandrea, supra note 21, at 235.
(345.) Allen, supra note 130, at 913; Lee, supra note 21, at 1459-60 (discussing President Bush's authorization of Lewis "Scooter" Libby's disclosure of key classified information). The Bush Administration opposed congressional initiatives to provide "shield" protection for journalists' confidential sources, calling it a "profound breach of public trust and is wrong and criminal." Lee, supra note 21, at 1460. Of course, it is not "wrong" and "criminal" for the president to selectively disseminate classified information, Id. at 1457-58.
(346.) The Abrams Report, Plamegate Explained, MSNBC (Oct. 26, 2005), http://www.msnbc.msn.com/id/9828152/ns/msnbc_tv-the_abrams_report/ (discussing who is responsible for leaking the identity of CIA agent Valerie Plame to the media).
(347.) Arianna Huffington, Plamegate: Worse than Watergate, HUFFINGTON POST (Oct. 25, 2005), http://www.huffingtonpost.com/arianna-huffington/plamegate-worse-than-wate_b_9522.html (linking the Valerie Plame identity scandal with the war in Iraq).
(348.) Joel Roberts, Plamegate Turns D.C. Upside Down, CBS NEWS (Feb. 11, 2009), http://www.cbsnews.com/stories/2005/07/14/opinion/lynch/main708980.shtml (reporting that Plamegate has attracted a lot of media and political attention in Washington, D.C.).
(349.) Editorial, Fitzgerald's Plame Probe Just Plain Obsessive, CHI. SUN-TIMES, July 7, 2005, at 39 (commenting on Patrick Fitzgerald, a U.S. attorney who vigorously prosecuted journalists involved in Plamegate); Editorial, Press Freedom of the Precipice, N.Y. TIMES, Oct. 16, 2004, at A16, available at http://www.nytimes.com/2004/10/16/opinion/16sat2.html?_r=1 (opining that U.S. attorney Patrick Fitzgerald's investigation into journalists involved with Plamegate bordered on harassment).
(350.) Editorial, Press Freedom, supra note 349, at A16; see also Nicholas D. Kristof, Op-Ed., Our Not-So-Free Press, N.Y. TIMES (Nov. 10, 2004), http://www.nytimes.com/2004/11/10/opinion/10kris.html (reporting that three federal judges found eight different journalists in contempt of court for not revealing confidential sources).
(351.) Eliason, supra note 101, at 444 (dismissing the notion that journalists are engaging in noble acts of civil disobedience when defying court orders to reveal their sources).
(352.) Lee, supra note 21, at 1458; see also Joyce, supra note 253, at 563 ("[It is] hard to determine whether Miller has indeed been a watchdog or a lap dog in this process ... some have questioned her close relationship with government officials, and criticized the style of 'access' journalism."); Buzz Portune, Media Relationships in the Post 9-11 World--Have Changes Impacted Newsgathering and Reporter Privilege?, 32 OHIO N.U.L. REV. 529, 541-42 (2006). Some praised Miller for refusing to testify and upholding the confidentiality principle while she was "terminated (or resigned) from her position at the Times and became, instead, much criticized for her enabling of the hype and spin that created support for America's incursion into Iraq." Portune, supra, at 541-42. But see Jack Shafer, The 'Times' Scoops That Melted. Cataloging the Wretched Reporting of Judith Miller, SLATE (July 25, 2003), http://www.slate.com/id/2086110/ ("[N]one of the sensational allegations about chemical, biological, or nuclear weapons given to Miller have panned out, despite the furious crisscrossing of Iraq by the U.S. weapons hunters."); NO. CAL. CHAPTER, SOC'Y OF PROF'L JOURNALISTS, An Open Letter on Judith Miller and Anonymous Sources (Nov. 2, 2005), http://www.spjchapters.org/norcal/2005/millerrevised.pdf ("Many of Miller's pre-war sources turned out to be unreliable witnesses, and worse, self-serving partisans using fabricated evidence ... [and i]t is irresponsible to relay such grave but anonymous charges without an extraordinary effort to corroborate them by other means.").
(353.) Miller, supra note 203. Judith Miller testified to the Senate Judiciary Committee, stating:
Confidential sources are the life's blood of journalism. Without them ... people like me would be out of business. As I painfully learned while covering intelligence estimates of Saddam Hussein's weapons of mass destruction, we are only as good as our sources. If they are wrong, we will be wrong. And a source's confidence that we will not divulge their identity is crucial to his or her readiness to come to us with allegations of fraud or abuse or other wrongdoing ....
(354.) See Jack Shafer, Miller Time (Again), SLATE (Feb. 12, 2004), http://www.slate.com/id/2095394/. Miller stated, "It raises real questions about how good our intelligence was. To beat up on the messenger is to miss the point." Id.
(355.) Mermin, supra note 188, at 942; see also Howard Kurtz, The Post on WMDs." An Inside Story, WASH. POST (Aug. 12, 2004), http://www.washingtonpost.com/wp-dyn/articles/A581272004Aug11.html (stating "The Post published a number of pieces challenging the White House," but they rarely made the front page news).
(356.) Mermin, supra note 188, at 942; see also Ghetti, supra note 188, at 500 (noting generally that "the effect of reporting the news is not the reporter's concern"). (357.) Seesupra Parts III-IV.
(358.) Portune, supra note 352, at 542; see also Jane Mayer, The Manipulator: Ahmad Chalabi Pushed a Tainted Case for War. Can he Survive the Occupation?, NEW YORKER (May 29, 2004), http://www.newyorker.com/archive /2004/06/07/040607fa_fact1 (discussing Ahmad Cahlabi's involvement in efforts to overthrow Saddam Hussein); Com, supra note 318 ("The defectors were duds--fabricators and embellishers.").
(359.) Howard Kurtz, Intra-Times Battle Over Iraqi Weapons, WASH. POST (May 26, 2003), http://www.washingtonpost.com/ac2/wp-dyn/A39280-2003May25?language=printer.
(360.) Michael Massing, Now They Tell Us, N.Y. TIMES REV. OF BOOKS (Feb. 26, 2004), http://www.nybooks.com/artic1es/archives/2004/feb/26/now-they-tell-us/?pagination=false.
(361.) Editorial, The Times and Iraq, N.Y. TIMES (May 26, 2004), http://www.nytimes.com/2004/05/26/international/middleeast/26FTE_NOTE.html?pagewanted=all (emphasis added).
(362.) See SELECT COMM. ON INTELLIGENCE, THE USE BY THE INTELLIGENCE COMM. OF INFO. PROVIDED BY THE IRAQI NAT'L CONGRESS, S. REP. NO. 109-330, at 25-27, 30, 113, 118-19, 159, 195 (2004) (stating Iraqi exile groups were being funded by U.S. taxpayers under the March 2001 Information Collective Program, which was an "aggressive publicity campaign that relied on media outlets to bring defectors and their information to the public"); Kenneth Katzman, CONG. RESEARCH SERV., 98-179F IRAQ'S OPPOSITION MOVEMENTS (2000), http://www.au.af.mil/au/awc/awcgate/crs/98-179.pdf (discussing the Iraq Liberation Act, which gave "the President discretion to provide up to $97 million in defense articles (and up to $2 million in broadcasting funds) to opposition organizations, designated by the Administration"); SHELDON RAMPTON & JOHN STAUBER, WEAPONS OF MASS DECEPTION: THE USES OF PROPAGANDA IN BUSH'S WAR ON IRAQ 55 (2003) ("[The] anti-Saddam Iraqis received coaching to help them look good on talk shows, give speeches, and write newspaper opinion pieces."); Charles Tiefer, The Iraq Debacle: The Rise and Fall of Procurement-Aided Unilateralism as" a Paradigm of Foreign War, 29 U. PA. J. INT'L L. 1, 45 (2007) (discussing U.S. funding provided for the Iraqi organizations "to be the nucleus of its Iraqi advising-governing body during the expected occupation"); Bamford, The Man Who Sold the War, ROLLING STONE (Nov. 17, 2005), http://www.commondreams.org/headlines05/1118-10.htm (discussing John Rendon, "Bush's general in the propaganda war"); James Martin Kettle, Bush Funds Iraqi Opposition, GUARDIAN (Feb. 3, 2001), http://www.guardian.co.uk/world/2001/feb/03/iraq.usa (discussing an order issued by the Bush Administration "permitting Iraqi opposition groups to begin limited moves inside Iraq using U.S. government funding"); Douglas Quenqua, U.S. Training Iraqis in Media to Raise Support for Attack, PR WEEK (Sept. 2, 2002) ("The State Department has begun providing media training to a handful of Iraqi dissidents who will help make the Bush [A]dministration's argument for the removal of Saddam Hussein.").
(363.) Lee, supra note 21, at 1469.
(364.) See generally supra Part II.
(365.) Eliason, supra note 101, at 391; see Arthur Sulzberger, Jr., Times Statements on Judith Miller's Release, N.Y. TIMES (Sept. 30, 2005), http://www.nytimes.com/2005/09/30/national/30cnd-miller-text.html (announcing Miller's "direct and uncoerced waiver ... releasing her from any claim of confidentiality and enabling her to testify").
(366.) Tedford & Shapiro, supra note 178. Libby was convicted for committing perjury during the investigation, which ostensibly presumes that the cover-up is worse than the crime. See Lee, supra note 21, at 1495-96.
(367.) Scott Shane & Neil A. Lewis, Bush Commutes Libby Sentence, Saying 30 Months 'Is Excessive,' N.Y. TIMES (July 3, 2007), http://www.nytimes.com/2007/07/03/washington/031ibby.html?pagewanted=all (quoting President Bush, who stated that although he respected the jury's verdict, he found "the prison sentence given to Mr. Libby ... excessive"); Lee, supra note 21, at 1501-02.
(368.) Government Exhibit 2 at 177, United States v. Libby, 429 F. Supp. 2d 49 (D.D.C. 2007) (No. 05-394).
(369.) Government's Sentencing Memorandum in Support of Its Proposed Sentencing Guidelines Calculations, at 14, United States v. Libby, 429 F. Supp. 2d 49 (D.D.C. 2006) (No. 05-394).
(370.) Robert Novak, Editorial, Columnist Wasn't Pawn for Leak, CHI. SUN-TIMES, Oct. 1, 2O03, at 49.
(371.) See Mike Celizic, McClellan: Plame Leak Case was Turning Point, MSNBC (May 29, 2008, 10:44 AM), http://today.msnbc.msn.com/id/24861380/ns/today-today_people/t/mcclellan-plame-leak-case-was-turning-point/. Nearly a year after all substantive issues of the Plame leak case were closed, former White House Press Secretary Scott McClellan appeared as a whistleblower when he published his book and accused the Bush Administration of "shading the truth and conducting a political propaganda campaign in making the case to go to war in Iraq ...." Id. McClellan also accused Bush and Cheney of misleading the public about the leak, stating: "'I gave them the benefit of the doubt, just like a lot of Americans .... Looking back and reflecting on it now, I don't think I should have.'" Id. McClellan's book "vaulted to No. 1 on Amazon.com's best-seller list," and MSNBC explained that Republican critics dismissed him as a turncoat and a disgruntled former employee, while the Bush White House called the book "puzzling and sad." Id. Rove criticized McClellan on FOX news, stating: "If he had these moral qualms, he should have spoken up about them. And frankly I don't remember him speaking up about these things." Id.; see also Matt Apuzzo, Former Aide Blames Bush for Leak Deceit, HUFFINGTON POST (Nov. 21, 2007), http://www.huffingtonpost.com/huff-wires/20071121/cia-leak-mcclellan/(stating that, following McClellan's comments, Plame remarked, "I am outraged to learn that ... McClellan confirms that he was sent out to lie to the press corps").
(372.) Bejesky, supra note 8, at 811 12, 875 82 (discussing the failure of pre-war intelligence on Iraq); Bejesky, supra note I1, at 91 95 ("[T]he administration relied on 'euphemisms, abstraction, doublespeak' to market dire threats and then 'prevent[ed] access to the data necessary to support a contrary opinion.'"); see supra Part III.
(373.) Bejesky, supra note 8, at 811 12, 875 82 ("The drastic variation in opinion of an association between Hussein's regime and al-Qaeda could have relied on a fair coin toss."); Bejesky, supra note 53, at 348-63.
(374.) See Kielbowicz, supra note 22, at 489, 494.
(375.) See Bejesky, supra note 53, at 348-62; supra Part IV.
(376.) Kielbowicz, supra note 22, at 494. If an authorized or unauthorized leak becomes an important public issue, the government may need to verify portions of the leak. Id. See generally supra Part IV.
(377.) See Bejesky, supra note 8, at 811 12, 875 82; Bejesky, supra note 11, at 91-95; supra Part III.
(378.) See supra Part VI.D.
(379.) See Soto, supra note 97, at 453 55 (citing example legislation and norms restricting freedom of speech in order to protect national security, which are typical in other countries, including Britain, Australia, Canada, Israel, and Singapore); see also supra Part II.
(380.) David Johnston et al., Secret U.S. Endorsement of Severe Interrogations, N.Y. TIMES Oct. 4, 2007), http://www.nytimes.com/2OO7/lO/O4/washington/O4interrogate.html?pagewanted=all (explaining that officials would "only speak on the condition of anonymity"); see Nukes a Possibility if U.S. Decides to Attack Iranian Sites, Report Says, SEATTLE TIMES (Apr. 9, 2006), http://seattletimes.nwsource.com/html/nationworld/ 2002920093 iran09.html (stating that an identified official, Michele Ness, referenced the New Yorker article and stated "'[t]he article contains information that is inaccurate,'" but "Is]he declined to elaborate"). In discussing Iran's nuclear program, alleged to have a nefarious purpose, and reiterating content from a New Yorker article, a sample of the sources are "unnamed officials at the White House," "numerous anonymous sources," "four Pentagon, military, and administration officials," "a senior Pentagon official," "a Pentagon official," "Senior administration officials," "Senior officers and Pentagon officials," "U.S. officials and independent analysts," "specialists," "military officers," and "military officers and specialists." Nukes a Possibility if U.S. Decides to Attack Iranian Sites, Report Says, supra; see Online NewsHour with Jim Lehrer: Lurking in the Shadows (PBS broadcast Sept. 30, 1998) (transcript available at http://www.pbs.org/newshour/bb/media/julydec98/sources 9-30.html) (discussing the long-standing practice in journalism of using anonymous sources); see also Bejesky, supra note 8, at 875-82; Kinsley, supra note 100 (questioning whether anonymous sources are worth protecting); supra Part IV.
(381.) Kinsley, supra note 100.
(382.) See Jacobs, supra note 32, at 678 (discussing prior restraints); supra Part V1.D.I.
(383.) Kielbowicz, supra note 22, at 478-81.
The unauthorized release of the Pentagon Papers and Deep Throat's leaks to the Washington Post both raised concerns that had not been successfully addressed through official channels. In the Pentagon Papers case, Daniel Ellsberg first attempted to communicate his findings to government officials; he leaked to the press when members of Congress hesitated to act. As Deep Throat, FBI Deputy Director Felt leaked information about Watergate to the Washington Post because his immediate superior, the acting director of the agency, had just been appointed by Nixon and was obstructing the investigation.
Id. at 479 80; Scharf & McLaughlin, supra note 133, at 575, 579 ("[W]ithout government whistleblowers with the courage to go to the press, we would not know about the Watergate scandal in the 1970s or the Iran-Contra scandal in the 1980s."); see Garcetti v. Ceballos, 547 U.S. 410, 430 n.l (2006) (Souter, J., dissenting) (asserting that the majority's decision actually encourages leaks by seemingly narrowing government employee speech rights).
(384.) See N.Y. Times Co. v. United States, 403 U.S. 713,714 15 (1971) ("[F]or the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather that the Government can halt the publication of current news of vital importance....").
(385.) See Note, The Rights of the Public and the Press to Gather Information, 87 HARV. L. REV. 1505, 1505-07 (1974).
(386.) 50 U.S.C. [section][section] 421426 (2000 & Supp. IV 2004) (prescribing criminal penalties for the disclosure of confidential information); Simmons, supra note 90, at 850 (discussing criminal penalties "imposed upon press and private citizens for writing or publishing information about the United States covert activities which discloses the identity of intelligence agents" even when they act illegally); see supra Parts II, VI.D, VII.A.
(387.) See Lee, supra note 21, at 1477 78; supra Part VI.D.1-2. Examples of elevating the security harm variable are found in the prosecutions of Daniel Ellsberg, Samuel Morison, and Lawrence Franklin that were brought under the Espionage Act for leaking information to the media, with the latter two resulting in convictions. Lee, supra note 21, at 1477 78. Both Morison and Franklin possessed "Top Secret" security clearances. Id. at 1478. The Scooter Libby case began as an investigation under the Espionage Act, but resulted in a conviction on perjury charges. Id. Balancing the risk posed by the disclosure of classified information and the value of public interest in such information was reflected in the New York Times Co. decision and The Progressive "s "H-Bomb" article, both of which involved governmental prior restraints that eventually favor public dissemination and did not involve the Espionage Act. See supra Part VI.D.1-2.
(388.) See Lee, supra note 21, at 1470 71 (discussing the Department of Justice's longstanding practice to focus on "'the universe of potential leakers' rather than on the press"); supra note 269.
(389.) See Eliason, supra note 101, at 444.
It is difficult to think of another example of a profession whose members believe that their professional obligations require them to break the law .... Such a practice also enables those sources who themselves may be breaking the law as may have been the case in the CIA leak case, or in the New York Times v. Gonzalez case to hide behind a journalist, confident that the journalist will go to jail so that, perhaps, the source will not have to.
(390.) See Eun, supra note 322, at 1087 ("Judge Hogan has held ... Judith Miller in contempt of court for refusing to comply with the special Counsel's grand jury investigation."); see also Bravin, supra note 326 (discussing Miller's case in light of two San Francisco Chronicle reporters facing jail "if they refuse to reveal their source for la] confidential grand-jury proceeding"). See generally Miller, supra note 326, at A31.
(391.) See supra text accompanying notes 352 62.
(392.) Peters, supra note 300, at 669.
(393.) See Papandrea, supra note 21, at 233. See generally Bejesky, supra note 53, at 348-65, 388-92.
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|Title Annotation:||VI. Reporter's Privilege and Risks through VIII. Conclusion, with footnotes, p. 435-472|
|Publication:||St. Thomas Law Review|
|Date:||Jun 22, 2012|
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