Transcripts For CSPAN The Press The Government And National

Recently there has been a very militant religious conflict in places like burma directed, ironically, against the muslims. These are counted intuitive stories and i think they are a challenge to journalism. They are. You have any suggestions of how they could be covered better . When you mention sri lanka, i then thought of myanmar, burma, and the way that Buddhist Monks have been inciting violence against the muslim minority. That has shocked a lot of people around the world who understood what is him to be a vegetarian, peaceloving, very gentle, meditative religion focused on raising ones consciousness. The truth on the ground is often quite different. Like everybody, new journalists have to catch up on that sometimes. That has certainly been the case in myanmar, burma. It is a challenge and youre right. Quite often, buddhism and hinduism are given gentle treatment. I remember reporting a lot on induism that gives a different face to it than the one we often see in america, in boulder. It is an ongoing challenge and i think it is right that some religions are possibly treated more gently than others. Of course, it also depends on where youre coming from and which media youre talking about. It isnt purely religion, but in america it seems that israel is given more positive treatment in the press and it is quite the opposite in europe. That is an ongoing issue about that and the bbc often has to find itself answering to arguments and reports on whether it is reporting on conflict in the middle east and the sick terry and religious overtones are fair and balanced and that is an ongoing issue. Do you have the last question . Thank you for a lovely resentation. I just want to ask you from a practitioners perspective because i work as an assistant roducer. I find it a bit hard to balance between the moderate views and the extremist because i have been asked to do some filtering, when inviting people on show, so what is your experience and suggestions or any comments bout that balancing act . Is a very difficult one. It is one faced by programs every day, but especially when something happens. In islam, some extremists or something, something happens, and then there is a lot of internal navelgazing among Editorial Staff as to whether it is justified to call him an extremist who has three followers to talk about a story. There is no clear line as to when you do that but i think sometimes it is justified to the chaudhrys of this world. If something happened in that spirit that he can talk about, as long as you contextualize and say this is not a guy with half a million followers. He has five followers and a park. Context is all, i think. As we discussed, it is kind of apply to conservative or rthodox. There is always a real effort to try and balance and be as impartial as possible, at while at the same time recognizing that we all come with their own frame of reference and that it is an ongoing challenge to try and do that. On behalf of the attendees of the conference and the center for media, religion, and culture, and the university of colorado, i want to thank you, ane. Cable satellite corp. 2014] national captioning institute] the president and the first family celebrated easter at the 19th Street Baptist Church in washington, d. C. , with 250 people attending, same church he attended the sunday before he was first inaugurated in 2009. The easter egg roll will be held at the white house. Tickets have been distributed by lottery. And tuesday, president obama will be leaving for asia with visits scheduled in japan, south korea, malaysia and the phillipines and stopping in Washington State where mudslides killed 39 people last month and will be meeting with Emergency Responders there. This is the first time a sitting president will have visited malaysia since 1966. Updates. Ell bring you russian politics and influence around the world. They will be hosted at the heritage foundation. Live coverage monday at 10 00 a. M. Eastern right here on cspan. We dont quite go back that far, but we do have some interesting artifcacts to help people understand how long people have been making and breaking codes. When we talk about the United States, its important to note that the making and breaking of codes has been a part of america, even before we gained our independence. One of our most precious artifcacts is referred to as the jefferson device. It is very important to note that we dont have any definitive conclusive evidence that this particular device belonged to Thomas Jefferson but there are interesting facts about it. One, this was device was found in an antique store very close to his home. Ability to decipher french and english and the most compelling point, there is a drawing of a device similar to this in jeffersons private papers. Even so, we cant say for sure that jefferson owned it. What we can say is this is an excellent example of how people cryptology. From the n. S. A. , making and breaking secret code at 6 00 and 10 00 eastern part of American History tv this weekend on cspan 3. 50 organizations sponsored the sources and secrets conference last month to look at conflicts between the government and the press after september 11, 2001. James risen who refused to reveal his c. I. A. Sources. Followed by a Panel Discussion with media attorneys and other journalists. This is about an hour. Can you hear me now . Yes. Good morning. Im the occur ator of the george polk awards and welcome you to the sources and secrets conference. This came in an email many months ago from william polk who is the younger brother of george polk who was murdered on assignment in greece. William was concerned about the espionage act and he wrote, the issues that my brothers murder brought to the information were one can you silence a story by eliminating the reporter . And two, can a free society operate if the sources of information on Public Affairs re closed or even severely constrained . His concern was felt by many in our profession. Over 50 organizations have sponsored and supported this conference and we thank them for that. It may be that conflict between the government and the press is inevitable, but rarely has that conflict been as raw and as raging as it is now post9 11 and in the postsnowden world. We hope today to shed some light and maybe even some needed heat on the underlying issue. And to start, it gives me pleasure to introduce a man who has been engaged in a long lonely court battle to defend the confidentiality of a news source, mr. James risen of the New York Times. Thank you. [applause] how are you . I appreciate your time. Thanks for having me. I thought i would just start by kind of providing a little bit of an overview of the general issues that all the different panels are going to be discussing today. And i think that i would like to start with discussion as john was just discussing about the relationship between the government and the press today. I think were going to look back at this period and realize that since 9 11, weve had that the real legacy of the war on terror of the Bush Administration and of the Obama Administration, has been a severe erosion in Civil Liberties in america. And that significant part of that is about freedom of the press in the United States. I think this is the worst time period in my career as a journalist, in terms of press freedom, i think that the Obama Administration has doubled down on the kind of reductions in press freedom that began under the Bush Administration. And they are engaged in the kind of aggressive antipress activities that the Bush Administration only contemplated and never pursued. And i think its a great irony of a liberal democratic ministration or supposedly liberal Democratic Administration that they are now perceived widely within the journalistic agency as the greatest enemy of press freedom that we have encountered as an industry in at least a generation. And i think its its still not entirely clear about why thats exactly happened, why this administration in particular has been so antipress. But i dont think i think the facts speak for themselves now. At first, the Obama Administration liked to say that the leak investigations that they were pursuing on National Security grounds that they inherited from the Bush Administration. And they tried to distance themselves from those at the same time that they were pursuing them. And yet, they continue to pursue new cases. They continue to aggressively investigate every leak that is not directly from the white house. Nd they continue to talk until bellicose terms about the need zeal zeal against against leakers. The director of National Intelligence said this week, repeated again that there was a need for aggressive prosecutions of every major leak and that any leaker in the National Security community has to go to jail. I think one of the things that is misunderstood in the press, wever, is the idea that this issue can somehow been walled f to a few issues like National Security. The problem has been that all leak investigations have been fairly easily at first were nd of easy to disassociate themselves, the general industry was able to say well, thats a specific story and this is a specific story, but now theres a general pattern thats developed that the administration wants to do, both the Bush Administration and the Obama Administration. They want to narrow the field of National Security reporting. They want to make it very difficult for anyone to pursue stories outside of accepted boundaries that the administration are you and you that is, to make him what theyre trying to do. They are trying to create a path for exceptional reporting and if you were a reporter go outside of those parameters, you will be youshed and the sources were trying to deal with will be prosecuted. That is essentially what i think theyre trying to do. Act,e a de facto secrets through the use of the justice cia, and thehe white house, i think are , in a sense to, without congressional approval, be able to make sure every story that comes out about National Security something that make the makes thee look good, cia look good, and any story that does not make them look good or does not help the local the people involved in the story will be punished. That is the end result. If you look back at the kind of and bush have tried to put out in terms of National Security, if you only look at thes store is blessed by the white house, youll find a very different narrative, were on of the war on terror than the press has reported. Future ism for the that it would be very easy for they are successful in this zeal, that they would be this beyondnd National Security reporting and other kinds of reporting. In washington and beyond. Also, the response of the newspaper industry, the Media Industry has been a little bit too hesitant to take on the administration and take on the government directly. It is debate and i will get into this in great length today about the law that has been bouncing around congress for the last few years and never really gone anywhere. It is a shield law that has a loophole so essentially the National Security reporting would not be covered by it. Basically every leak investigation happening is in National Security reporting, so this means the shield law that has been discussed will have very little effect on reallife investigations. One of the things that should be discussed today is how you strengthen the law and should the journalistic industry support a law that will not have any effect to get something on the books. The real problem we have in the industry today is, how tocefully should we stand up what the administration is doing. The political actors want to take envelope a role of lobbyists or be a political constituency, and yet, we are a dramaticronting change in the landscape in terms of our relationship with the government. , deathe recognize that begins his stand up against the fashion,ation in some i think it will only get worse. I will pass this on to adam of the New York Times. [applause] [captions Copyright National cable satellite corp. 2014] [captioning performed by national captioning institute] good morning. I cover the Supreme Court for the New York Times and it is a pleasure to share the stage. He is one of the bravest and most important journalists of our day. I hope to cover the request he has at the Supreme Court to review his case with the disinterested detachment you would expect from the New York Times. An area where ive practiced as a pressler for maybe 14 years before turning to reporting. If i were still wearing that old hat and i was allowed to have an opinion, i might say the issue of jim by the Obama Administration is a scandal. Let me introduce our panelists. As you might expect from my background, we will try to set some Legal Framework for the discussions that will go on today. Forly, you could not ask better experts on all of this. O my left is been we discussed this before hand and artie forgot. Of the a. C. L. A aclu and advisor to edward snowden. Schultz here in new york city, who has represented journalists and National Security members. Jeff, a horrible competitor, a triple threat. Andanages to write books new yorker pieces and comment on cnn. What we want to do is set up a framework. Some of the out themes jim was talking about in his remarks. Matter, threeal categories. What can you do to people who have authorized access to classified information, who have taken on some kind of obligation and then decided it is worthwhile to disclose that information, and the second category might be the journalist who does not authorize the information but gets a hold of it about whether they can publish it or not, what can be done to that person, and in the two things collide in the third category, where, lets assume the government will not go after the journalist directly, and try to criminally prosecute or otherwise punish the journalist, by asking the journalist to provide evidence about the first category, about the source, the leaker. Why dont i ask then to kickoff the first category . In two minutes or less. I of also give the practicing lawyers the hardest assignment him ever had in their lives. I asked them to summarize two minutes a piece, which they will find very hard. Jeff will have no problem with it. So i am talking about the legal regime faces is someone who holds a security clearance and has a contract with the government, not to reveal classified and confidential information, but nonetheless does so. What needs to be said is in the overwhelming majority of the cases, no criminal regime is necessary at all. Loss of security crew security clearance, the government has almost complete discretion to withdraw security clearance from an individual. The loss of means livelihood, the loss of community, the loss of the ability to work. The combination of those things is enough in almost every case to deter lower lever lowerlevel leakers here at higherlevel leakers leak everyday and do not get prosecuted. You could be a top general and you or someone on your staff could actually leak a work plan, have published on the front page of the Washington Post in 2009, in order to constrain a firstterm president posses options there it there will not be an investigation of that, even though a work plan is a paradigm of information probably all of us would say deserves secrecy and should not be leaked. The criminal law. The economics act of 1917 and another statute, broadly criminalized gathering intimidation of National Defense information. It does not use the term classified information. You heard from jim that the espionage act is used with increasing frequency in recent years to prosecute unauthorized disclosures, including whistleblowing. The 100 year history of this statute, it was only used to prostitute spies and not at all to prosecute leakers. The first person ever charged under the espionage act was giving information to the press and not the enemy, daniel ellsberg. That prosecution fell apart before the constitutionality of the legal theory could be tested. This was perhaps not so good for the doctrine. He was sold the law clerk for the judge had lit written a long memo that said they would have violated the First Amendment. We may have gotten interesting doctrine at a time the Supreme Court may have been more receptive to that critique. A few years later in 1979, the general counsel of the cia testified to congress he could not say for certain whether leaks to the press and classified information were even prohibited by criminal law. He said if the espionage we have had in this country and absolutely unprecedented crime wave, because there have been thousands upon thousands of disclosures, and nonhas ever been prosecuted. How times have changed. I do not think we would hear the general counsel testified to that effect now. The department of justice argued that leaks to the press are more pernicious than spies telling secrets to a foreign enemy because when the newspaper publishes it, all of our enemies get the story and not just the one who paid for it. The Buddhist Monks<\/a> have been inciting violence against the muslim minority. That has shocked a lot of people around the world who understood what is him to be a vegetarian, peaceloving, very gentle, meditative religion focused on raising ones consciousness. The truth on the ground is often quite different. Like everybody, new journalists have to catch up on that sometimes. That has certainly been the case in myanmar, burma. It is a challenge and youre right. Quite often, buddhism and hinduism are given gentle treatment. I remember reporting a lot on induism that gives a different face to it than the one we often see in america, in boulder. It is an ongoing challenge and i think it is right that some religions are possibly treated more gently than others. Of course, it also depends on where youre coming from and which media youre talking about. It isnt purely religion, but in america it seems that israel is given more positive treatment in the press and it is quite the opposite in europe. That is an ongoing issue about that and the bbc often has to find itself answering to arguments and reports on whether it is reporting on conflict in the middle east and the sick terry and religious overtones are fair and balanced and that is an ongoing issue. Do you have the last question . Thank you for a lovely resentation. I just want to ask you from a practitioners perspective because i work as an assistant roducer. I find it a bit hard to balance between the moderate views and the extremist because i have been asked to do some filtering, when inviting people on show, so what is your experience and suggestions or any comments bout that balancing act . Is a very difficult one. It is one faced by programs every day, but especially when something happens. In islam, some extremists or something, something happens, and then there is a lot of internal navelgazing among Editorial Staff<\/a> as to whether it is justified to call him an extremist who has three followers to talk about a story. There is no clear line as to when you do that but i think sometimes it is justified to the chaudhrys of this world. If something happened in that spirit that he can talk about, as long as you contextualize and say this is not a guy with half a million followers. He has five followers and a park. Context is all, i think. As we discussed, it is kind of apply to conservative or rthodox. There is always a real effort to try and balance and be as impartial as possible, at while at the same time recognizing that we all come with their own frame of reference and that it is an ongoing challenge to try and do that. On behalf of the attendees of the conference and the center for media, religion, and culture, and the university of colorado, i want to thank you, ane. Cable satellite corp. 2014] national captioning institute] the president and the first family celebrated easter at the 19th Street Baptist Church<\/a> in washington, d. C. , with 250 people attending, same church he attended the sunday before he was first inaugurated in 2009. The easter egg roll will be held at the white house. Tickets have been distributed by lottery. And tuesday, president obama will be leaving for asia with visits scheduled in japan, south korea, malaysia and the phillipines and stopping in Washington State<\/a> where mudslides killed 39 people last month and will be meeting with Emergency Responders<\/a> there. This is the first time a sitting president will have visited malaysia since 1966. Updates. Ell bring you russian politics and influence around the world. They will be hosted at the heritage foundation. Live coverage monday at 10 00 a. M. Eastern right here on cspan. We dont quite go back that far, but we do have some interesting artifcacts to help people understand how long people have been making and breaking codes. When we talk about the United States<\/a>, its important to note that the making and breaking of codes has been a part of america, even before we gained our independence. One of our most precious artifcacts is referred to as the jefferson device. It is very important to note that we dont have any definitive conclusive evidence that this particular device belonged to Thomas Jefferson<\/a> but there are interesting facts about it. One, this was device was found in an antique store very close to his home. Ability to decipher french and english and the most compelling point, there is a drawing of a device similar to this in jeffersons private papers. Even so, we cant say for sure that jefferson owned it. What we can say is this is an excellent example of how people cryptology. From the n. S. A. , making and breaking secret code at 6 00 and 10 00 eastern part of American History<\/a> tv this weekend on cspan 3. 50 organizations sponsored the sources and secrets conference last month to look at conflicts between the government and the press after september 11, 2001. James risen who refused to reveal his c. I. A. Sources. Followed by a Panel Discussion<\/a> with media attorneys and other journalists. This is about an hour. Can you hear me now . Yes. Good morning. Im the occur ator of the george polk awards and welcome you to the sources and secrets conference. This came in an email many months ago from william polk who is the younger brother of george polk who was murdered on assignment in greece. William was concerned about the espionage act and he wrote, the issues that my brothers murder brought to the information were one can you silence a story by eliminating the reporter . And two, can a free society operate if the sources of information on Public Affairs<\/a> re closed or even severely constrained . His concern was felt by many in our profession. Over 50 organizations have sponsored and supported this conference and we thank them for that. It may be that conflict between the government and the press is inevitable, but rarely has that conflict been as raw and as raging as it is now post9 11 and in the postsnowden world. We hope today to shed some light and maybe even some needed heat on the underlying issue. And to start, it gives me pleasure to introduce a man who has been engaged in a long lonely court battle to defend the confidentiality of a news source, mr. James risen of the New York Times<\/a>. Thank you. [applause] how are you . I appreciate your time. Thanks for having me. I thought i would just start by kind of providing a little bit of an overview of the general issues that all the different panels are going to be discussing today. And i think that i would like to start with discussion as john was just discussing about the relationship between the government and the press today. I think were going to look back at this period and realize that since 9 11, weve had that the real legacy of the war on terror of the Bush Administration<\/a> and of the Obama Administration<\/a>, has been a severe erosion in Civil Liberties<\/a> in america. And that significant part of that is about freedom of the press in the United States<\/a>. I think this is the worst time period in my career as a journalist, in terms of press freedom, i think that the Obama Administration<\/a> has doubled down on the kind of reductions in press freedom that began under the Bush Administration<\/a>. And they are engaged in the kind of aggressive antipress activities that the Bush Administration<\/a> only contemplated and never pursued. And i think its a great irony of a liberal democratic ministration or supposedly liberal Democratic Administration<\/a> that they are now perceived widely within the journalistic agency as the greatest enemy of press freedom that we have encountered as an industry in at least a generation. And i think its its still not entirely clear about why thats exactly happened, why this administration in particular has been so antipress. But i dont think i think the facts speak for themselves now. At first, the Obama Administration<\/a> liked to say that the leak investigations that they were pursuing on National Security<\/a> grounds that they inherited from the Bush Administration<\/a>. And they tried to distance themselves from those at the same time that they were pursuing them. And yet, they continue to pursue new cases. They continue to aggressively investigate every leak that is not directly from the white house. Nd they continue to talk until bellicose terms about the need zeal zeal against against leakers. The director of National Intelligence<\/a> said this week, repeated again that there was a need for aggressive prosecutions of every major leak and that any leaker in the National Security<\/a> community has to go to jail. I think one of the things that is misunderstood in the press, wever, is the idea that this issue can somehow been walled f to a few issues like National Security<\/a>. The problem has been that all leak investigations have been fairly easily at first were nd of easy to disassociate themselves, the general industry was able to say well, thats a specific story and this is a specific story, but now theres a general pattern thats developed that the administration wants to do, both the Bush Administration<\/a> and the Obama Administration<\/a>. They want to narrow the field of National Security<\/a> reporting. They want to make it very difficult for anyone to pursue stories outside of accepted boundaries that the administration are you and you that is, to make him what theyre trying to do. They are trying to create a path for exceptional reporting and if you were a reporter go outside of those parameters, you will be youshed and the sources were trying to deal with will be prosecuted. That is essentially what i think theyre trying to do. Act,e a de facto secrets through the use of the justice cia, and thehe white house, i think are , in a sense to, without congressional approval, be able to make sure every story that comes out about National Security<\/a> something that make the makes thee look good, cia look good, and any story that does not make them look good or does not help the local the people involved in the story will be punished. That is the end result. If you look back at the kind of and bush have tried to put out in terms of National Security<\/a>, if you only look at thes store is blessed by the white house, youll find a very different narrative, were on of the war on terror than the press has reported. Future ism for the that it would be very easy for they are successful in this zeal, that they would be this beyondnd National Security<\/a> reporting and other kinds of reporting. In washington and beyond. Also, the response of the newspaper industry, the Media Industry<\/a> has been a little bit too hesitant to take on the administration and take on the government directly. It is debate and i will get into this in great length today about the law that has been bouncing around congress for the last few years and never really gone anywhere. It is a shield law that has a loophole so essentially the National Security<\/a> reporting would not be covered by it. Basically every leak investigation happening is in National Security<\/a> reporting, so this means the shield law that has been discussed will have very little effect on reallife investigations. One of the things that should be discussed today is how you strengthen the law and should the journalistic industry support a law that will not have any effect to get something on the books. The real problem we have in the industry today is, how tocefully should we stand up what the administration is doing. The political actors want to take envelope a role of lobbyists or be a political constituency, and yet, we are a dramaticronting change in the landscape in terms of our relationship with the government. , deathe recognize that begins his stand up against the fashion,ation in some i think it will only get worse. I will pass this on to adam of the New York Times<\/a>. [applause] [captions Copyright National<\/a> cable satellite corp. 2014] [captioning performed by national captioning institute] good morning. I cover the Supreme Court<\/a> for the New York Times<\/a> and it is a pleasure to share the stage. He is one of the bravest and most important journalists of our day. I hope to cover the request he has at the Supreme Court<\/a> to review his case with the disinterested detachment you would expect from the New York Times<\/a>. An area where ive practiced as a pressler for maybe 14 years before turning to reporting. If i were still wearing that old hat and i was allowed to have an opinion, i might say the issue of jim by the Obama Administration<\/a> is a scandal. Let me introduce our panelists. As you might expect from my background, we will try to set some Legal Framework<\/a> for the discussions that will go on today. Forly, you could not ask better experts on all of this. O my left is been we discussed this before hand and artie forgot. Of the a. C. L. A aclu and advisor to edward snowden. Schultz here in new york city, who has represented journalists and National Security<\/a> members. Jeff, a horrible competitor, a triple threat. Andanages to write books new yorker pieces and comment on cnn. What we want to do is set up a framework. Some of the out themes jim was talking about in his remarks. Matter, threeal categories. What can you do to people who have authorized access to classified information, who have taken on some kind of obligation and then decided it is worthwhile to disclose that information, and the second category might be the journalist who does not authorize the information but gets a hold of it about whether they can publish it or not, what can be done to that person, and in the two things collide in the third category, where, lets assume the government will not go after the journalist directly, and try to criminally prosecute or otherwise punish the journalist, by asking the journalist to provide evidence about the first category, about the source, the leaker. Why dont i ask then to kickoff the first category . In two minutes or less. I of also give the practicing lawyers the hardest assignment him ever had in their lives. I asked them to summarize two minutes a piece, which they will find very hard. Jeff will have no problem with it. So i am talking about the legal regime faces is someone who holds a security clearance and has a contract with the government, not to reveal classified and confidential information, but nonetheless does so. What needs to be said is in the overwhelming majority of the cases, no criminal regime is necessary at all. Loss of security crew security clearance, the government has almost complete discretion to withdraw security clearance from an individual. The loss of means livelihood, the loss of community, the loss of the ability to work. The combination of those things is enough in almost every case to deter lower lever lowerlevel leakers here at higherlevel leakers leak everyday and do not get prosecuted. You could be a top general and you or someone on your staff could actually leak a work plan, have published on the front page of the Washington Post<\/a> in 2009, in order to constrain a firstterm president posses options there it there will not be an investigation of that, even though a work plan is a paradigm of information probably all of us would say deserves secrecy and should not be leaked. The criminal law. The economics act of 1917 and another statute, broadly criminalized gathering intimidation of National Defense<\/a> information. It does not use the term classified information. You heard from jim that the espionage act is used with increasing frequency in recent years to prosecute unauthorized disclosures, including whistleblowing. The 100 year history of this statute, it was only used to prostitute spies and not at all to prosecute leakers. The first person ever charged under the espionage act was giving information to the press and not the enemy, daniel ellsberg. That prosecution fell apart before the constitutionality of the legal theory could be tested. This was perhaps not so good for the doctrine. He was sold the law clerk for the judge had lit written a long memo that said they would have violated the First Amendment<\/a>. We may have gotten interesting doctrine at a time the Supreme Court<\/a> may have been more receptive to that critique. A few years later in 1979, the general counsel of the cia testified to congress he could not say for certain whether leaks to the press and classified information were even prohibited by criminal law. He said if the espionage we have had in this country and absolutely unprecedented crime wave, because there have been thousands upon thousands of disclosures, and nonhas ever been prosecuted. How times have changed. I do not think we would hear the general counsel testified to that effect now. The department of justice argued that leaks to the press are more pernicious than spies telling secrets to a foreign enemy because when the newspaper publishes it, all of our enemies get the story and not just the one who paid for it. The Supreme Court<\/a> has not addressed yet whether the espionage act can, without constitutional limits, be used to prosecute leaks to the press. But i think it is fairly well established in the lower court that it can be used that way and that the term, National Defense<\/a>, will be construed very broadly. Moreover, the courts will look to the executive ranch posses own classification revisions to help determine the reach of the statute. It should be said no court has ever it accepted a defense of improper classification in an espionage act prosecution. Will likely fall into the reach of at least one statute. The government can prosecute most if not all employees, x employees, contractors, so long as they can prove the information is not already declassified and that the defendant should have known the law prohibited her actions. In other words, a leaker cannot escape liability by demonstrating the Public Benefit<\/a> of her conduct far outweighed any claims of government harm. Nor can she escape liability by demonstrating the information she disclosed should not have been did classified in the first place, even if that revealed criminality on the part of the government. We have amounts to or nearly amounts to a strict reliability legal regime where the executive branch, essentially, defines the boundaries of what constitutes a crime, without, really, any meaningful judicial review. Before i pass it over, to say a word about what the consequences think about the information classified at the highest levels of secrecy over the last 10 years, disclose without authorization, that the case for a war in iraq was trumped up on bogus evidence, american soldiers tortured and humiliated prisoners, that the cia operated a network of secret prisons around the world that used an Extraordinary Program<\/a> to kidnap people off the streets and five m to those places. The bush ministration disregarded the strength of their surveillance at engaged in legalread, warrantless surveillance. All of the activities were classified and their disclosure theunlawful, if we allowed executive branch to decide on its own what the public can and cant see, we would be deprived of that information. Theeen mentioned in passing case youll call is the publication of the New York Times<\/a> and the Washington Post<\/a> of a classified history of the vietnam war. Everybody remembers it as a great win because the Supreme Court<\/a> says we cannot be stopped from publishing it beforehand. Thought itet several was a perfectly good idea. Turn to talk about another leg of the school about journalists and what liability they face. This is dynamite information. You have documents to back it up. Can you get them . That is a conversation that goes on in every newsroom every day. Good journalists do it. It is whether editors and lawyers tell them to. The information is related to the National Defense<\/a> and it could be a crime under the espionage act, which makes ,nauthorized receipt, retention and disclosure a crime. In the 97 years the act has been on the books, the good news is there has never been a prosecution of the press. The bad news is, there could be. As adam indicated, the pentagon papers was a huge victory but it disturbance, to the effect the paper could be prosecuted. In 1984, the first time someone was prosecuted for disclosure to defense weekly of satellite surveillance photos of soviet aircraft carriers. In 19 was not prosecuted, but the Fourth Circuit<\/a> rejected lawrences argument that it was atited to class spying area least two judges recognize, however, that the leaks could involve and implicate First Amendment<\/a> rights and the interest of the public has to be compared against government interest and National Security<\/a>. It was not until the prosecution in 2005, of two lobbyists for the israel aipac, at before that, there had never been a prosecution under the espionage act of someone who was not a Government Employee<\/a> or not employed by the government, i. E. , someone who had signed a nondisclosure agreement and arguably waived their First Amendment<\/a> rights. Were chargedbyists under the espionage act for pressl disclosure to the and israel, and with aiding and abetting disclosure by their dod source. The source also milley wore a wire and cooperate with the government and pled guilty. A freelance reporter who wrote about the investigation was repeatedly visited by the fbi at her home in d. C. , until i was retained to represent her. The prosecution begun under bush was dropped by the Obama Administration<\/a>. Calledthe reporter was to testify and faced a difficult decision that now faces james. Invoking the fifth amendment was an option for the reporter, because the apex judge had ruled the espionage act was not limited to persons in a position of trust in the government. Refused to dismiss the indictment, saying the government did did not have to sit back and watch as threats to the National Security<\/a> multiplied. Language that in theory could apply to the press as well. A judge did say at least with regard to information, not documents, the government also had to show they intended to states or united eight a foreign nation. The government gave up the prosecution delivery, cuss because they did not believe that burden in all likelihood, it would impress the espionage is well. All have involved governmental personnel or contractors, all for disclosure for reporters, buteaks, and a think tank no charges against any of the recipients of the information. Case, the reporter was never subpoenaed or contacted by government. They did not need to. They had all they needed from drake himself. He pled guilty for a mystery misdemeanor but got no jail time, no fines, and the judge called the ordeal unconscionable. The government described the reporter as a kos coconspirator because he encouraged to disclosed sensitive documents and intelligence information. The doj is now indicated it will not go after reporters for such ordinary newsgathering. Jiving andinary . Official over classified information or stealing information, it might not be ordinary. What is the source . Handing over the classified information. There is a long line of cases, most recently the case in 2001, that the Supreme Court<\/a> said the First Amendment<\/a> does not permit punishment a publication of truthful information that the press has obtained lawfully about a matter of public interest. It was an illegally intercepted toetap delivered anonymously the radio station. More difficult is, what if there was not just totally passive receipt of documents or information . What if the reporter asked for information . When does it become solicitation or aiding and abetting . To thenot involve harm National Security<\/a>, a government interest of the highest order. It did not involve the deference to the governments assessment of that harm, such as ben was referring to. Interest is also of the highest order, often involving allegations of. Overnment wrongdoing the government, so far, has widely avoided this headon confrontation with the First Amendment<\/a>. The prosecutions the press would necessarily and starkly present. We have not had the headon confrontation. We have direct prosecution of the press for publishing prosecution information. The press gets jammed up in other ways. I will do a quick overview to set the table. Just listening to these comments, it does seem to me the issues were talking about this morning are being driven by two overarching forces pushing the government certainly is. Concernhe post9 11 about National Security<\/a>. Since 9 11, the balance between protecting security and individual rights, including reporter rights and reporter privilege, has been terribly skewed. All the things jim said about the Obama Administration<\/a> are , in focusedis efforts to protect National Security<\/a> and almost and ambivalence to the impact on other rights. A lack of appreciation of the importance of the reporters privilege for me talk briefly. The issue is, what about the report is privileged . Is there a zone of confidentiality, a zone protected by law . Of news is not good in any the three branches of government. In the report, the scope of the reporters privilege has been never totally wellsettled. There been well accepted is a reporters privilege except in the area of criminal investigations. Thinkn 2000, 2003, i 2003, it was an opinion by who just took a blast of all the judges around the case, theeading a judge says everyone is reading that opinion as just wrong, and he has such a reputation and such force the courts said, maybe we should rethink this. It has commented with probably the worst decision in the gym rising case. The United States<\/a> investigation, where the circuit essentially said, there is no constitutional privilege, no commonlaw privilege. Were, we were not find it was available. It completely wiped out. Were doing poorly in the courts. What about the executive branch . Thethe last 40 or so years, single thing that has protected the most is guidelines written by the attorney general about when people in the fbi could subpoena reporters. These are guidelines written in the aftermath of nixons enemy agencies and subpoenas. The outrage let the Augustine Justice<\/a> department imposed outlines. They have Strong Language<\/a> gathering function. They essentially imposed upon the government a privilege. Fast forward to the Obama Administration<\/a> and youre probably familiar with the key events last year. We found out in the early spring the Justice Department<\/a> has subpoenaed and massive number of the Associated Press<\/a> in the investigation about a story where the government had foiled an effort to do a bombing with the underwear bomb. They investigated for a year, and without giving notice, they subpoenaed phone records. It should not have happened on the guidelines. They said notice would be given as it would have harm to the investigation. Shortly thereafter, it was disclosed that almost two years earlier, the Justice Department<\/a> had secretly obtain the email and theations of jim foss case. A huge up for. Thats a bit further. Because of something. Verdis of the law, the Justice Department<\/a> had to proceed by a surge or and. They had to get a judge to agree this was appropriate. They accusedmail, him of an espionage act. Ais may be a first time Government Official<\/a> has accused a reporter of violating vs the notch at. It was shocking. When they came out and there was outrage, it was very odd. They never intended to go after him and i just had to say that for the search warrant. There is a real problem. The bottom line is the president asked the attorney general to look at the guidelines to see how they could be strengthened and just two lisa go, released final rules. I will suggest quick things. Ony address those concerns everybodys minds lester. They changed the rule about when you could get records without notice under a subpoena. That is good. It made a more likely they be given. It does say the Justice Department<\/a> could never again put out a search warrant when the reporter is not the actual target of the investigation. Good. Things are disturbing about regulations that just came out, they have substantial new exceptions to the rules for National Security<\/a>. They have language that could be the and suggested any time National Intelligence<\/a> gives an affidavit saying the investigation is important and would trump all the investigations. They put a number of all the other legal words that now said the vehicles only applied to ordinary newsgathering. A number of other things they in the specifics. It seems to be driven by agencies having control on these prophecies. To the idea that reporters have the right to communicate confidentially. The former prosecutor. There are ethical norms and responsibilities to citizens. To put the right way them together . Class it will not take me long to alienate everyone in the room. Journalists are citizens and do not belong to the privileged caste that prevents us from the rules. About the lot of talk reporters privilege. For better or worse, it has been there is no reporters privilege under the First Amendment<\/a>. Concurring opinion, you can have an esoteric discussion. Does not exist here i wish you did. I wish senator shuman was successful in his effort to create a federal shield law but there is not a shield law and we federal subpoenas are not exempt from that. I take my inspiration during the Bush Administration<\/a> from a reporter does not get thoughtful about talked about a lot and that is walter, one of the great reporters of our generation, from the Washington Post<\/a>. He is somewhat older. Mean he can see for himself, but here is a guy who has done more investigative reporting in National Security<\/a> i cannot even say his name greenwald has done in a lifetime, yet, he is going to get less who gets about how he does not care about freedom of the press. I do care. I think it is important to be and it is also important to be realistic about whether the sky is falling or whether it is not. The number of journalists prosecuted in the Obama Administration<\/a> is euro. Decadesit has been for before that. The number of journalists incarcerated by the Obama Administration<\/a> is euro. Yes, jim has been found in i wishnd i think that were not the case. I think it is a bad case. A terrible decision. Leventhal overestimate how much is happening here. Exempt from criminal law, grand jury investigations. There should be very narrow for certain newsgathering, but, that is not something that has ever been the law in the United States<\/a>. Is,he extent we claim it the law is against us, the public is against us, and that is just something we need to recognize as we go forward in this discussion. That . I respond to i understand that point of view. There is an argument to be made, but let me challenge a couple things. First, in terms of whether we should be concerned, there is a whole set of questions about how walter operated and whether people operate like that in the future, as Technology Makes<\/a> it impossible for people without protection. In terms of the law and where we are today, to say there is no privilege, one gets it wrong. What the justices opinion said was that he was unprepared to make a constitutional ruling. He recognized there were rights at they at stake. Clear what he understood was we should not constitutionalize this, but it should be a privilege recognized on a casebycase basis, a commonlaw privilege. A problem that journalists and lawyers care about these things, need to make the public and the courts and legislatures and others understand the importance of protecting his own confidentiality for reporters. We have a privilege for communications. No one challenges that. No one subpoenas attorneys when they want information because that serves as a recognized function. Same things with priests and penances. When the congress subpoenaed and an fbi agent, 1940 one, wanted to know the Source Information<\/a> lead from congress, then attorney general Robert Jackson<\/a> wrote politely and said, i am sorry but if we tell you who our sources are, we will not be able to function. Ability to make a promise of confidentiality that can be enforced. Congress back down. The same principle applies to reporters. What we need to do is figure out how to articulate the value and importance of society. Ben was saying earlier, imagine a world where we do not know the cia had black sites, that we did not know about waterboarding and torture, that those things would not come out because the government could keep them coming out. The law did not recognize any protection either for a reporter who got that information, or the source who leaked it. It is problematic. The Technology Issue<\/a> cuts both ways. When daniel wanted to leaked the pentagon papers, he had to sit there in front of a xerox machine one page at a time. Chelsea manning had to hit a couple of buttons to disclose hundreds of thousands of documents. Edward snowden has not favored us with how much he is taken or what he has some of it. As i understand it, he took one or four laptops full of material and gave them to and on the on disclose persons for the good of the world. Undisclosed persons for the good of the world. I think it changes the balance somewhat in the other direction. Live you think the case is wrong if you do not think there that discretion issue, if you just think prosecution should do it. I think they should not subpoena reporters under most circumstances. That was mostly descriptive on my part. That there is no privilege. I think the notes are not going to be written not going to be sited anywhere. Who cares what his notes say. You said, it is a nice strong port point that no one would subpoena a lawyer because of client for bush. For fraud. Exception the situation from a prosecutors point of view is someone has committed a crime, eyewitness,e was an that is the journalist, why should the journalist get a pass . Classically do not recognize the privilege come i do not argue for absolute privilege, but there could be exceptions. The only person who gets to decide whether to go after a reporter or not is the attorneys office. We have seen from recent efforts , when youre pursuing an investigation you have those blinders on, your zeal to get a results wants your judgment about everything else. That is what privilege is important. The prosecutor then has to go to else has a someone right to decide whether the balance works. If you do not recognize privilege, you are increasing the power of executive and taking the judiciary out. So critical we get this right. The balance has to include factoring in the public interest. If you are just looking at how much the government needs the information, that is one part of the equation. The other part is, how much does the public need the information being disclosed. Not every week rises to the level of what ben was describing, but, those who do, definitely require that level of protection. It is the judge in the best position to engage in that kind of bouncing. Are we not itd area in a ferent Area Technology<\/a> technological . In the New York Times<\/a>, they looked at it and made judgments. We now see to be in a technological world where daniel would have the internet. Does that call for a different kind of reasoning . I think if you look at the latest only to have played out, very slowly for those who are eager, he works through news institutions, through the ,uardians, the Washington Post<\/a> and other outlets, and he has not published a single document but is work for those institutions. Wiki leaks has a different model. It works to the New York Times<\/a> before deciding to go a different way. I do not think technology requires us to go outside the normal competition between the press and the government . Government. Tore the press decides what publish and what not to, but consults with the government to make sure it does not have. Oints a lot blind spots that is an important point good to write about Technology Changing<\/a> him both sides entities to be thought about how the government can protect its legitimate secrets. Part of the answer here is to keep in mind we need different rules for reporters and leakers. Part of the problem is technology causes that emerge. With the internet, almost anyone can become a reporter. We are trying to protect the Different Things<\/a> that do not apply. Journalists play an important checking function on the press. The ones who can critique the government, helped form public opinion, so that its important that just anybody putting stuff on the internet they disseminate the information but also act as a filter. In terms of society functioning, we need organized institutions and reliably presented it in a way that is trustworthy their those institutions need those ares of protections so they treated differently than the leaker and the average citizen. System will not work. The other impact of seetronic, one reason you more leaks, they can detect who the leaker is. Any government wants to pursue who is leaking on them. Before, they could not ever be successful in part because they do not have a trail. Here, it was an electronic trail. A reporter. Eed as these cases are being made without ever subpoena owing the reporter. Knowing the government would be onto him very quickly in any event. To some extent, the discussion isut reporters privilege perhaps a thing of the past. Followup, i suppose we manning and snowden our sources, and the New York Times<\/a> and the guardian, where is is wiki leaks a journalist . I do not have a fully worked out there he. I would like to point out when we have these discussions, it is often as if every prosecution is a mindless exercise in messing with the press and with wellintentioned leaker and racial and whistleblowers. The fox news case involved what the government believes was the potential loss of a source in north korea. Few and far between. Sources which say certain torture and death if they are found out by north korea, as well as three generations of their family. You can see why the government the potentialbout disclosure of people, Services Like<\/a> this. Not a frivolous concern. It is not, to me, and i promised we would not get into a whole snowden detour, it is not that the government is concerned about whatever it is mr. Snowden disclosed. Are created equal should all disclosures go unpunished by the government. Press responses you can trust us. And the government sits back, that is nice. Who elected you . Why should we get to make these decisions . Part of the answer is someone has to play a checking role on the government. With are legitimate seat the government needs to keep and it have to have the tools to keep those. A gray area. The government can keep everything secret, as a society, we will wither and die. That is not living in an open society, a society where citizens can make judgments knowing where the government is. I would suggest what the First Amendment<\/a> says is, we protect the press. It wrong, perhaps there are cases where they could be prosecuted. For the most part, they have the rights to disclose information that is true and news worthy and important for the public to hear. Have very clearly defined boundaries. We are dealing with a law that was written in world war i that just talks about protecting National Security<\/a> and ministers. One of the ones that create all of this to all of this concern. You could imagine a world in which unauthorized leaks and a free press might play a smaller role in the democracy. That would be a world in which the congressional intelligence committees played a much larger role, not secretly rubberstamping the National Security<\/a> programs, but seriously challenge. I would be a world in which federal courts, instead of developing doctrines like state secrets and immunity and standing in all of that, would rigorously consider the constitutionality of the programs. In a world where we do not have those things, where federal courts have set out of National Security<\/a> sat out of national , then wedebates actually need the press. We rely on it in order not just to inform the punch of the public on whether it has a right to need to know. Problemsd submit the ben is talking about about the lax oversight by congress and failures of the court, stem from the fact those bodies within congress and the courts dealing with this are entirely secret. Theave a system where secrecy is norm, it does not work. You do not have the oversight. To resurrect try some part of my dissertation as someone who cares about freedom of the press, the answer to your whotion is quite clear elected you. The constitutional act in a spirit there is an explicit provision, the First Amendment<\/a>, which protects the freedom of the press. The idea the government can tell you what to publish and not, is totally that is not something legally controversial. Prior restraint, the government telling you what to publish or not is something that really remains a dead rock principle. Where things get complicated and where some of us part company is , what are the implications of the publication, who can be prosecuted and investigated. President ,at some governor, saying, who elected you, that is an easy one. The First Amendment<\/a> protects the press. Yes. [applause] [laughter] then set out neutrally, what certain statutory congressional or legal regimes that might get someone like snowden or manning and might get snowed into trouble. Is there an overlay their . There . About whether or not just a matter of discretion, but whether there might be a defense for someone who violated a legal obligation in aid of what they would say is a more important the answer has to be yes. The Supreme Court<\/a> has not consider this right now, but there is a doctor about when i have a constitutional right to speak and when they do not. There is no question someone under ontrack in a relation with National Security<\/a> has reduced constitutional protection, but not none. My view is that among at a putsum, the constitution restraints, where that speech reveals conduct that is criminal , improperly withheld from the public in the first place, reveals conduct that has a great Public Benefit<\/a> and those outweigh any harm, that at minimum, it should require the government to show the information was properly in the first place, or even if it is evidence, it is not conclusive evidence of that. Otherwise, under the current torture forcia can his owners, classify that at the highest level. If someone were to leak that to the press, they could demand the prosecution of that person and at present have effectively no defense under the law against a prosecutor mike that. Part of the problem has been the government has overcharged on all cases, rather than dealing with it as an employee remedies you would take against an employee who bridged their contact. They go for the espionage act, and the case is a perfect example of where they way atrstepped what was clearly most something you could remedy through disciplined, takeaway security clearance. The unruly contest between the government and the press is that the government has the right to control the press access to the information in the first place. All these leaks are where the government failed to do that at a billy for one reason or the other peer that is the governments first line of defense. Hire the right people and check the security clearance and have systems in place to not permit leaking. That is the first line of defense. Always going right to the espionage act as spying with the massive room and all penalties is not the way to handle leakers in the first place. The firstfollowup, amendment has to be part of the answer. This is another issue. We have very little precedent from the courts. The one time it was touched upon , thecourt was in 1980s prosecution on president ronald reagan. An employee who was prosecuted for leaking information to her british magazine. He raised a First Amendment<\/a> defense and others. When i got up on an appeal on the Fourth Circuit<\/a>, the governments position is the espionage act is strict liability and he argued there has to be a public defense. The court said, without directly articulating what the First Amendment<\/a> defense was, at least on the fast, we do not think this would be inconsistent to the First Amendment<\/a>. They pointed to the fact this was a knowing violation, that he knew the harm that would happen to the nice if and a number of things. I think there is some level of protection even for a leaker that would require","publisher":{"@type":"Organization","name":"archive.org","logo":{"@type":"ImageObject","width":"800","height":"600","url":"\/\/ia802209.us.archive.org\/18\/items\/CSPAN_20140420_154500_The_Press_the_Government_and_National_Security\/CSPAN_20140420_154500_The_Press_the_Government_and_National_Security.thumbs\/CSPAN_20140420_154500_The_Press_the_Government_and_National_Security_000001.jpg"}},"autauthor":{"@type":"Organization"},"author":{"sameAs":"archive.org","name":"archive.org"}}],"coverageEndTime":"20240619T12:35:10+00:00"}