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(Bibliography): US Law should make it illegal to publish classified information concerning the intelligence activities of the United States.

April 20, 2017
by News
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Essay

Bibliography —

Should Prosecute Media that Publish Leaks

Has the New York Times Violated the Espionage Act?  This 2006 article lays out a strong case for punishing those who published classified materials.  It is also a great read because it details the history of the controversy related to punishing those who published leaked materials.

Striking The Optimal Balance Point Between National Security And A Free Press: A Model Statute And A Call To Congress “In this era of radical Islam, a time in which a holy war has been declared against the United States, Congress must enact legislation that, although consistent with New York Times Co. v. United States, n28 allows the Executive to seek injunctive relief when the press aims to release top secret information that, if disclosed, would cause direct, immediate, and irreparable harm to the security of the United States.

Gabriel Schoenfeld, Necessary Secrets; National Security, the Media, and the Rule of Law (W.W. Norton, 2010).   This book argues that a failure to maintain secrecy will risk terrorism and it makes a strong case for prosecuting leaks that threaten national security.

Should Not Prosecute Media that Publish Leaks

The Espionage Act and the New York Times.  Responding to the first article listed above, this article makes the case that media organizations that publish leaks should not be criminally punished.

Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes. This law review article argues that the ability of news organizations to publish leaked information is protected by the First Amendment. It concludes: ” In an era when news organizations are forced to downsize, resulting in fewer “shoeleather journalists to ferret the story out[,]” it would be especially ill-advised for the government to criminalize long-standing newsgathering activities.”

The War On Speech In The War On Terror: An Examination Of The Espionage Act Applied To Modern First Amendment Doctrine.  Our society for many years had not prosecuted journalists for merely possessing classified material; instead, we chose to prosecute the government employees. In his 2006 decision, Judge Ellis suggested a change in the law where he wrote that “the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.” n192 An interpretation of legislation like the one Judge Ellis suggests would upset the balance between the government and the independent press. If this view prevails, then private citizens will lose their First Amendment rights and their speech will be chilled during the war on terror

The War On Speech In The War On Terror: An Examination Of The Espionage Act Applied To Modern First Amendment Doctrine,  “In the midst of today’s indefinite war, we should be extremely cautious about the use of the Espionage Act to prosecute private citizens for obtaining classified information. First Amendment scholar Geoffrey Stone wrote, “The United States has a long and unfortunate history of overreacting to the dangers of wartime … in every instance [of war] the nation went too far in restricting civil liberties.” n107 While wartime restraints on free speech do not carry into peace time, President Bush stated after the September 11th attacks that the current war against terror may never end. n108 Statements like this have enabled the Bush administration to assert greater powers afforded to the executive branch in wartime in order to “protect” the country.”

Balancing National Security And Free-Speech Rights: Why Congress Should Revise The Espionage Act.   According to Reporters Without Borders journalistic freedom in the United States now pales in comparison with journalistic freedom in Northern European countries. n11 In the first annual Worldwide Press Freedom Index, issued in 2002, the United States ranked seventeenth. n12 Today, the United States ranks fifty-third, having dropped nine places just since last year. n13 Reporters Without Borders contends that this drastic decline of press freedom in the United States occurred because the Bush administration “use[s] the pretext of ‘national security’ to regard as suspicious any journalist who question[s] the ‘war on terrorism.'” If Congress does not revise the Espionage Act, the Bush administration or a subsequent administration could use this law to prosecute American journalists. In the event such prosecution occurs, the United States would descend further in the Worldwide Press Freedom.”

Curbing Overzealous Prosecution of the Espionage Act: Thomas Andrews Drake and the Case for Judicial Intervention at Sentencing. “Public access to government information is essential to the vitality of a democratic government; the only way to limit corruption is to enable an open public dialogue and hold the government accountable for its actions. n15 Public access, however, is limited when government agencies classify information – which they do far too often. n16 Experts have recognized that government agencies withhold too much information from the public by classifying documents when there is no real threat to national security therein.  Oftentimes, the only way the public can gain access to inappropriately classified information is by intelligence officials leaking information to the press. n18 Leaks, therefore, have an important role in maintaining a robust democracy.”

Left Out In The Cold? The Chilling Of Speech, Association, And The Press In Post-9/11 America: September 20-21, 2007: Article: Deep Background: Journalists, Sources, And The Perils Of Leaking  This article argues that leakers (as opposed to the press) should be protected by the First Amendment. Although the article is not about the desirability of press protection, there is some good evidence in the article about the benefits of leaks.

The Chilling Of Speech, Association, And The Press In Post-9/11 America: September 20-21, 2007: Article: Deep Background: Journalists, Sources, And The Perils Of Leaking. “(C)ourts should vigorously protect the right of the press to publish confidential information.” This article does not have a lot of good debate cards in it, but it is useful for reviewing the major court cases related to the dispute. It does conclude Negative.

General Openness Good/Yes Right to Know

Secrecy and the right to know.  One of the original articles (1976) that argued for the right to know. ” The purpose of this paper is to begin weighing these considerations systematically. We begin with several premises: that reduced secrecy is vital to the healthy public debate of national policy; that Congress has, on the whole, an interest in making information public, just as the executive branch has an interest in keeping it secret; that both houses of Congress and their commit tees, acting in behalf of the public, are entitled to the information that they consider necessary for the performance of their constitutional functions. Thus Congress, we shall argue, must regularize its access to and right to release national security information. More than that, it must also restructure the executive branch’s classification system. To this end, we shall propose a legislated classification system through which Congress mandates that certain kinds of information be made public and creates an effective monitoring role for the courts-both in ordering disclosure under the Freedom of Information Act’ and in enforcing secrecy by criminal sanctions or injunctive restraints.”

Your right to know: Some lawmakers still claim secrecy. This article argues that secrecy undermines information needed for effective citizen oversight of government.

Origins of the Right to Know. This brief post argues the Constitution protect the right to information.

The World’s Right to Know.  During the last decade, 26 countries have enacted new legislation giving their citizens access to government information. Why? Because the concept of freedom of information is evolving from a moral indictment of secrecy to a tool for market regulation, more efficient government, and economic and technological growth.

Who won the war on secrecy?  This article argues that transparency is necessary for a democratic and just society.

Democracy in the Dark: The Seduction of Government Secrecy.

Our intelligence apparatus, operating in the dark. This article argues that government secrecy protects the ability of the government to commit crimes in the names of its citizens.

Daniel Patrick Moynihan, Secrecy: The American Experience (Yale University Press, 1998)

Dana Priest and William M. Arkin, Top Secret America: The Rise of the New American Security State (Little, Brown, 2011).  There are not a ton of cards in this book, but there is a lot of current history related to secret programs and an explanation of why getting those secrets into the open enhances democracy and actually strengthens the war on terrorism.

Ted Gup, Nation of Secrets: The Threat to Democracy  and the American Way of Life (Anchor Books, 2007)

Elizabeth Goitein and David M. Shapiro, Reducing Overclassification Through Accountability (Brennan Center for Justice, 2011)

Alane Kochems, No More Secrets: National Security Strategies for a Transparent World, post-workshop report (American Bar Association Standing Committee on Law and National Security, Office of the National Counterintelligence Executive, and National Strategy Forum, 2011), 9.

General Openness Bad/Protection of Secrets Good

The right to know v. the need for secrecy.  This article argues that secrecy is needed to protect privacy and security.

Gabriel Schoenfeld, Necessary Secrets; National Security, the Media, and the Rule of Law (W.W. Norton, 2010).   This book argues that a failure to maintain secrecy will risk terrorism and it makes a strong case for prosecuting leaks that threaten national security.

General

The Constitutional Right to Know.  This article argues the Right to Know is a constitutional right but that it is not an absolute one.

Alasdair Roberts, “National Security and Open Government,” Georgetown Public Policy Review 9 (2004):

Emerging Threats: Overclassification and Pseudo-Classification: Hearing Before the Subcomm. on National Security, Emerging Threats, and International Relations of the H. Comm. on Government Reform, 109th Cong. (2005).

David E. Pozen, “Deep Secrecy,” Stanford Law Review 62, no. 2 (2010): 257, 314.

Eric Lane, Frederick A.O. Schwarz Jr., and Emily Berman, “Too Big a Canon in the President’s Arsenal: Another Look at United States v. Nixon,” George Mason Law Review 17 (2010): 737–88.

Stephen J. Schulhofer, “Oversight of National Security Secrecy in the United States,” in Secrecy, National Security and the Vindication of Constitutional Law, ed. David Cole, Federico Fabbrini, and Arianna Vedaschi (Edward Elgar Publishing, 2013)

Eleanor Randolph, “Is U.S. Keeping Too Many Secrets?,” op.-ed, Los Angeles Times, May 17, 1997, A1: “ ‘The government’s obsession with secrecy creates a citizens’ obsession with conspiracy,’ ” quoting a First Amendment expert.

Additional Leaks Specific — General

David E. Pozen, “The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosure of Information,” Harvard Law Review 127 (2013):

Rahul Sagar, Secrets and Leaks: The Dilemma of State Secrecy (Princeton University Press, 2013).

Conor Friedersdorf, “Edward Snowden’s Other Motive for Leaking,” The Atlantic, May 13, 2014.

William Kristol, “Whack WikiLeaks,” The Blog, Weekly Standard, November 30, 2010

More — Haven’t had a chance to read yet

Birchall, Clare. “Introduction to ‘Secrecy and Transparency’: The Politics of Opacity and Openness,” 28 Theory, Culture and Society 7 (December 2011).

Birchall, Clare. “Transparency, Interrupted: Secrets of the Left,” 28 Theory, Culture and Society 60 (December 2011).

Christians, Clifford G., Theodore L. Glasser, Denis McQuail, Kaarle Nordenstreng and Robert A. White. Normative Theories of the Media: Journalism in Democratic Societies. Urbana: University of Illinois Press, 2009.

Fenster, Mark. “Disclosure’s Effects: WikiLeaks and Transparency,” 97 Iowa Law Review 753 (March 2012).

Gup, Ted. Nation of Secrets: The Threat to Democracy and the American Way of Life. New York: Doubleday, 2007.

Maret, Susan L. and Jan Goldman, eds. Government Secrecy: Classic and Contemporary Readings. Westport, Conn: Libraries Unlimited, 2009.

Pallitto, Robert M. and William G. Weaver. Presidential Secrecy and the Law. Baltimore: Johns Hopkins University Press, 2007.

Ross, Gary. Who Watches the Watchmen? The Conflict Between National Security and Freedom of the Press. Washington, D.C.: National Intelligence University, 2011.

Silver, Derigan. “Power, National Security and Transparency: Judicial Decision Making and Social Architecture in the Federal Courts,” 15 Communication Law and Policy 129 (2010).

Smith, Jeffery A. War and Press Freedom: The Problem of Prerogative Power. New York: Oxford University Press, 1999.

Transforming the Security Classification System: Report to the President from the Public Interest Declassification Board, November 2012, http://www.archives.gov/declassification/pidb/.

 

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