Striking the Optimal Balance Point Between National Security and a Free Press: A Model Statute and a Call to Congress

• Author: Kyle Witucky
• Position: Capital University Law School. J.D. expected 2010
• Pages: 567-608

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STRIKING THE OPTIMAL BALANCE POINT BETWEEN NATIONAL SECURITY AND A FREE PRESS:

A MODEL STATUTE AND A CALL TO CONGRESS
KYLE WITUCKY^*

I. INTRODUCTION

“‘They’re actually stopping it,’” Justice Black told his clerks.¹“In his view, that was an obvious violation of the First Amendment. The press was free; it could not be stopped from publishing material the government thought damaging to national security. That was prior restraint; it was an absurd notion.”²On June 13, 1971, the New York Times published its first installment of a series of articles based upon a massive study commissioned by former Defense Secretary Robert S. McNamara, detailing United States involvement in Vietnam from 1945–1967.³

Supreme Court Justice “Black was pleased to see the press expose what he regarded as a long, sordid story.”⁴On June 15, 1971, the U.S. government obtained an order from a federal New York district court enjoining the Times from further publishing a top-secret history of American involvement in Vietnam, titled the History of United States Decision Making Process on Vietnam Policy.⁵The Washington Post also published its first installment covering the secret Vietnam study on June 18th⁶before it too was enjoined in federal court.⁷In Justice Black’s opinion, “Each day’s delay . . . was a defeat for the press and for the First Amendment.”⁸

Copyright © 2010, Kyle S. Witucky.

* Kyle Witucky, Capital University Law School. J.D. expected 2010.

¹BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT

139 (1979).

²Id.

³Neil Sheehan, Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement, N.Y. TIMES, June 13, 1971, at A1.

⁴WOODWARD, supra note 1, at 139.

⁵United States v. N.Y. Times Co., 328 F. Supp 324, 325 (S.D.N.Y. 1971), rev’d, 444
F.2d 544 (2d Cir. 1971), rev’d, 403 U.S. 713 (1971).

⁶Chalmers Roberts, Documents Reveal U.S. Effort in ’54 to Delay Viet Election, WASH. POST, June 18, 1971, at A1.

⁷United States v. Wash. Post Co., 446 F.2d 1322, 1324–25 (D.C. Cir. 1971).

⁸WOODWARD, supra note 1, at 140.

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By June 26, 1971, the Times and the Post were presenting their cases to the United States Supreme Court.⁹In a per curiam opinion, the Court affirmed its precedent regarding prior restraints: “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”¹⁰The Court also held that the Government bears a heavy burden to justify its need for such a restraint.¹¹

In this instance, the United States could not overcome this heavy burden.¹²

Justice Black opined in his concurrence that “every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.”¹³Black

elaborated, “Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.”¹⁴

What if the press undermines the ability of the government to perform what is arguably its highest duty––to serve and protect the American people? Undoubtedly, the press should be free, but how free? What if the press published information that might weaken the national defense, thereby jeopardizing American lives? Where does one draw this line between freedom of the press and national security?

In 1810, Thomas Jefferson wrote that he is “certainly not an advocate for frequent and untried changes in laws and constitutions.”¹⁵However, he recognized “that laws and institutions must go hand in hand with the progress of the human mind. As . . . new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”¹⁶On Tuesday, September 11, 2001, America discovered a new truth––innocent American lives are centered in the crosshairs of a tidal wave of radical Islamic terrorists.¹⁷This truth should be fresh in the minds

⁹N.Y. Times Co. v. United States, 403 U.S. 713, 713 (1971).

¹⁰Id. at 714 (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)).

¹¹Id. (quoting Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971)).

¹²Id.

¹³Id. at 715 (Black, J., concurring).

¹⁴Id. at 717.

¹⁵Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816), in 3–4 THE

WRITINGS OF THOMAS JEFFERSON 32, 40–41 (Andrew Adgate Lipscomb & Albert Ellery

Bergh eds., 1907).
¹⁶Letter from Thomas Jefferson to Samuel Kercheval, in 3–4 id. at 41.

¹⁷David P. Barash & Charles P. Webel, PEACE AND CONFLICT STUDIES 44 (2d ed.

2008).

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of the journalists and editors of the Times and the Post, who watched terrorists fly commercial airliners into the World Trade Center in New York and the Pentagon in Washington, D.C.¹⁸

Nevertheless, in 2005 and 2006, and as recently as January 2009, the Times¹⁹released controversial stories potentially devastating to U.S. national security. In December 2005, the Times published an article detailing a classified National Security Agency (NSA) program under which the intelligence agency monitored the international telephone calls and e-mails of suspected terrorists.²⁰

In June 2006, the Times published an article detailing the Society for Worldwide Interbank Financial Telecommunication (SWIFT) program, a classified program operated by the Central Intelligence Agency (CIA) and Treasury Department to track the banking activity of suspected terrorists around the world.²¹In response to the June 2006 articles, White House Press Secretary Tony Snow asserted the legality and effectiveness of the SWIFT program by detailing its role in apprehending the mastermind behind a 2002 bombing in Bali and locating a Brooklyn man who “contributed $200,000 in terror financing.”²²Speaking on behalf of the White House, Snow noted that “nobody is going to deny First Amendment rights.”²³However, media outlets “ought to think long and hard about whether a public’s right to know, in some cases, might overwrite somebody’s right to live, and whether, in fact, the publications of these could place in jeopardy the safety of fellow Americans.”²⁴

More recently, the Times published an article detailing the former Bush administration’s covert plans to delay Iran’s ability to develop nuclear

¹⁸See id. at 57.

¹⁹The Washington Post, Los Angeles Times, and Wall Street Journal published similar stories, but this comment will focus on the New York Times because it was the first to break each story. See, e.g., Josh Meyer & Greg Miller, U.S. Secretly Tracks Global Bank Data,
L.A. TIMES, June 23, 2006, at A1.

²⁰James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A1.

²¹Eric Lichtblau & James Risen, Bank Data Sifted in Secret by U.S. to Block Terror, N.Y. TIMES, June 23, 2006, at A1; Meyer & Miller, supra note 19, at A1.

²²Press Briefing, Tony Snow, White House Press Sec’y (June 26, 2006), available at http://georgewbush-whitehouse.archives.gov/news/releases/2006/06/print/20060626-3.html (last visited Feb. 4, 2010).

²³Id.

²⁴Id.

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weapons.²⁵On January 11, 2009, the Times released a story detailing how President Bush refused Israel’s secret request for bunker-busting bombs needed to destroy Iran’s primary nuclear complex, but instead, “told the Israelis that he authorized [a] covert action intended to sabotage Iran’s suspected effort to develop nuclear weapons” by infiltrating its electrical systems, computer systems, and other networks on which Iran relied to develop weapons-grade uranium.²⁶

Although the First Amendment and its bar against prior restraints undoubtedly protect the press, this bar cannot be absolute. As Thomas Jefferson stated, “[M]oderate imperfections [in laws and constitutions] had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects.”²⁷

In changing times, Congress must act to meet new challenges facing the country. 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,²⁸allows 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.

In Part II, this comment examines the First Amendment freedom against prior restraints on the press when national security is at issue by taking a close look at the Pentagon Papers and the Supreme Court’s decision in New York Times Co. v. United States. In comparison, this comment examines United States v. Progressive, Inc.,²⁹a 1979 case in which a district court enjoined the press from publishing an article regarding the development of hydrogen bombs because the threat to national security met the standard set forth in New York Times Co. v. United States.³⁰Finally, Part II examines the current criminal provisions in the United States Code that penalize communicating certain information relating to national defense and describes the relevant legislative history behind those provisions.

Part III of this comment explores the controversial 2005, 2006, and 2009 publications of the Times in an attempt to strike a necessary balance

²⁵David E. Sanger, U.S. Rejected Aid for Israeli Raid on Nuclear Site, N.Y. TIMES, Jan. 11, 2009, at A1.

²⁶Id.

²⁷Letter from Thomas Jefferson to Samuel Kercheval, in 3–4 supra note 15, at 41.

²⁸403 U.S. 713 (1971).

²⁹467 F. Supp. 990 (W.D. Wis. 1979).

³⁰Id. at 998, 1000.

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