FEATURE CONTENTS INTRODUCTION I. RECOVERING THE PENTAGON PAPERS CASE A. The Court Proceedings B. The Decisions: Common Ground and Divisions 1. The Legality of Prior Restraints 2. Required Showing of Harm 3. The Potential for Criminal Sanctions 4. Responsible Journalism C. Implications II. THE WIKILEAKS DISCLOSURES THROUGH THE LENS OF THE PENTAGON PAPERS A. The WikiLeaks Disclosures B. WikiLeaks and the Presumption of "Intermediation" 1. The Premise of Enforceability 2. The Premise of Criminal Liability a. Substantive Scope of the Espionage Act b. First Amendment Considerations 3. The Premise of Media Self-Censorship a. WikiLeaks as Publisher b. WikiLeaks as Information Broker C. Implications III. WHO DECIDES? A. Revisiting Constraints on Publishers B. Nonpublisher Intermediaries C. The Environment for Leaks 1. The Classification and Nondisclosure Regime 2. The Pressure for Leaks 3. Shaping the Environment for Leaks a. The Espionage Act b. Overclassification CONCLUSION INTRODUCTION
For many observers, WikiLeaks' successive disclosures of classified U.S. documents throughout 2010 and 2011 invite comparison to publishers' decisions forty years ago to release portions of the Pentagon Papers, the classified analytic history of U.S. policy in Vietnam. The clash between the publishers and the government produced the celebrated decision of New York Times Co. v. United States, in which the Supreme Court held that the government had not carried the "heavy burden" of justifying a prior restraint against publication. (1) Although several Justices discussed the possibility that the newspapers could face criminal prosecution after the fact if they published material harmful to U.S. national security interests, (2) history has largely vindicated the newspapers' actions, as well as those of Daniel Ellsberg, the former government employee and RAND Corporation analyst who leaked the materials. (3)
The prominence of New York Times Co. v. United States in the First Amendment canon makes the Pentagon Papers analogy a powerful weapon for defenders of WikiLeaks and its key proprietor, Julian Assange. Ellsberg himself has characterized Assange as a "hero" (4) and has cited the "very strong" parallels between the WikiLeaks disclosures and the release of the Pentagon Papers. (5) A member of the legal team working with Assange has called the WikiLeaks disclosures "the Pentagon Papers case for the 21st Century." (6) For commentators who question WikiLeaks' actions, in contrast, the differences between the disclosures overwhelm any similarities. (7) The Pentagon Papers analyzed decisionmaking at the highest levels of the government over more than two decades and, in the view of many observers, confirmed that successive administrations had misled the American public about the objectives and conduct of the Vietnam conflict. (8) The leaked documents on the Afghan and Iraq conflicts, by contrast, are a collection of unedited raw materials, including first-hand incident and intelligence reports from military personnel on the ground. (9) The diplomatic cables released between November 2010 and September 2011 include sensitive communications of far-flung embassies dealing with a range of topics, from strategic concerns in the Middle East, (10) to corruption in foreign governments, (11) to assessments of foreign leaders' personalities and habits. (12) The Pentagon Papers episode, moreover, involved established publishers who claimed to be sensitive to the need to balance the public's right to know against U.S. national security concerns. (13) Even to those within the established news organizations that initially partnered with WikiLeaks to analyze and disseminate classified information in 2010, WikiLeaks' and Assange's motives are far less clear. (14)
Despite the obvious differences between the Pentagon Papers case and the WikiLeaks saga, both controversies presented the same fundamental institutional question: Who decides when the need for public access to certain leaked national security information outweighs the potential harm that dissemination might cause? In holding in New York Times Co. v. United States that the government had not overcome the presumption against prior restraints, the Supreme Court answered that, as to the Pentagon Papers, the decision fell to the Times, the Washington Post, and the other news outlets that held copies of the documents. The question is what insight that case offers for the emergence and evolution of WikiLeaks forty years later.
The Court's seemingly straightforward approach to the institutional question in New York Times Co. v. United States masks a number of complexities. First, as a doctrinal matter, the Court's brief per curiam opinion left open whether a different balance of public interest and harm could ever justify a prior restraint on publication-a question that a majority of Justices, in separate opinions, answered in the affirmative. In other words, a majority of Justices accepted that in certain factual contexts, a court's assessment of the balance of public interest and harm--informed, presumably, by the executive's assessment--could displace a publisher's. (15) Second, the Court's conclusion that, except in rare cases, the executive could not invoke the power of the judiciary to control the release of documents leaked to the press was not an endorsement of a source's power to assess the balance of public interest and harm. The separate opinions in the case illustrate key assumptions shared by a number of the Justices: that the possibility of criminal liability, and an ethical responsibility to prevent harm, would shape how the publishers used the Pentagon Papers. (16) Put another way, New York Times Co. v. United States does not presume a shared conception of the public interest and harm among the source and the potential publisher. In fact, it presumes the publisher's intermediation, even with respect to information that the publisher cannot be enjoined from disclosing. Finally, although New York Times Co. v. United States essentially recognized a First Amendment privilege for publishers to assess the threats and benefits of disclosure (at least up to the point at which a court could enjoin disclosure), the case acknowledged no parallel privilege for the source to release information up to that point. That is, the Pentagon Papers case presumed, or at least tolerated, an asymmetry: the government could withhold--and perhaps punish a source for releasing--information that it could not enjoin a publisher from further disclosing.
The WikiLeaks disclosures test a number of premises underlying the Pentagon Papers case. The disclosures first call into question the premise that a U.S. court could effectively restrain publication of national security information, even information presenting an exceedingly grave risk of harm. Second, certain aspects of the WikiLeaks disclosures threaten the model of established publishers assessing the balance of harm and the public interest against the backdrop of potential criminal penalties or recognized journalistic norms. The Justices who preliminarily considered a publisher's liability for secondary transmission of leaked information may have misjudged the risks of criminal liability. Third, WikiLeaks' global operating platform--which allows the organization to broker information-sharing deals with multiple publishers in a fragmented and global media marketplace--raises questions about whether public disclosures of national security information will in fact hew to a set of recognized journalistic norms.
The WikiLeaks disclosures, in short, reveal that some of the presumed constraints on downstream publication of leaked national security information may be illusory. Far from mapping neatly onto the Pentagon Papers case, the WikiLeaks disclosures require that we rethink the institutional framework the Pentagon Papers case presumes for controlling the secondary transmission of leaked national security information. The WikiLeaks disclosures demonstrate the challenge of controlling the secondary transmission of leaked information and the corresponding likelihood of "unintermediated" disclosure by an insider; the risks of non-media intermediaries attempting to curtail such disclosures, as a response to government pressure or otherwise; and the pressing need to prevent and respond to leaks at the source.
The Essay proceeds as follows. Part I explores New York Times Co. v. United States, charting its doctrinal limits and the Justices' shared assumptions, with particular focus on the underlying institutional questions. Part II assesses the actions of WikiLeaks and its media partners in light of the premises of the Pentagon Papers case. The WikiLeaks disclosures call into question two key premises behind the opinions in the case: that the secondary transmission of leaked national security information will involve a publisher within the reach of U.S. law, and that transmission will be shaped by the risk of criminal liability. A third premise, that publishers will self-censor to avoid disclosing harmful national security information, is difficult to evaluate in the context of the WikiLeaks disclosures, but the global and fragmented media marketplace suggests that self-censorship is less likely to occur. Part III offers some preliminary thoughts on how we should approach the problem of leaks in light of the shift away from the institutional framework assumed in the Pentagon Papers case. After discussing the government's narrow options for limiting the secondary transmission of leaked information and the promise and risks of relying on other non-media intermediaries to do so, I turn to what should be a major focus of reform efforts in this area: shaping the legal and technological environment for leaks.
RECOVERING THE PENTAGON PAPERS CASE
In 1967, Secretary of Defense Robert McNamara, increasingly disaffected with U.S. involvement in the conflict in Vietnam...