National Security, Leaks and Freedom of the Press: The Pentagon Papers Fifty Years On

by Geoffrey R. Stone (Editor), Lee C. Bollinger (Editor)

Overview

Written by a group of the nation's leading constitutional scholars, a deeply informed, thoughtful, and often surprising examination of who has First Amendment rights to disclose, to obtain, or to publish classified information relating to the national security of the United States.

One of the most vexing and perennial questions facing any democracy is how to balance the government's legitimate need to conduct its operations-especially those related to protecting the national security-in secret, with the public's right and responsibility to know what its government is doing. There is no easy answer to this issue, and different nations embrace different solutions. In the United States, at the constitutional level, the answer begins exactly half a century ago with the Supreme Court's landmark 1971 decision in the Pentagon Papers case. The final decision, though, left many important questions unresolved. Moreover, the issue of leaks and secrecy has cropped up repeatedly since, most recently in the Edward Snowden and Chelsea Manning cases. In National Security, Leaks and Freedom of the Press , two of America's leading First Amendment scholars, Lee C. Bollinger and Geoffrey R. Stone, have gathered a group of the nation's leading constitutional scholars-including John Brennan, Eric Holder, Cass R. Sunstein, and Michael Morell, among many others-to delve into important dimensions of the current system, to explain how we should think about them, and to offer as many solutions as possible.

Product Details

ISBN-13:	9780197519394
Publisher:	Oxford University Press
Publication date:	04/01/2021
Pages:	384
Product dimensions:	6.10(w) x 9.20(h) x 1.30(d)

About the Author

Geoffrey R. Stone, Professor of Law, University of Chicago, Lee C. Bollinger, President, Columbia University

Lee C. Bollinger became Columbia University's 19th president in 2002 and is the longest serving Ivy League president. He is Columbia's first Seth Low Professor of the University, a member of the Law School faculty, and one of the nation's foremost First Amendment scholars. Bollinger is the author or co-editor of numerous books on freedom of speech and press, including Regardless of Frontiers: Global Freedom of Expression in a Troubled World (2021), The Free Speech Century (2018), and Uninhibited, Robust, and Wide-Open: A Free Press for a New Century (2010).

President Bollinger is a member of the Pulitzer Prize Board and a co-founder of the Knight First Amendment Institute at Columbia University, a center devoted to defending speech and press freedoms in the digital age through litigation, scholarship, and public education. In 2014, he established Columbia Global Freedom of Expression, a project that brings together experts and activists with faculty and students to advance understanding of international norms that protect expression and the free flow of information. He served as president of the University of Michigan from 1996 to 2002 and led the school's historic litigation in Grutter v. Bollinger and Gratz v. Bollinger, Supreme Court decisions reasserting that diversity is a compelling justification for affirmative action in higher education. A fellow of the American Academy of Arts and Sciences and the American Philosophical Society, Bollinger is also the recipient of multiple honorary degrees from universities in the United States and abroad.

Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago. Mr. Stone is the author or co-author of many books on constitutional law. Among them are Democracy and Equality: The Enduring Constitutional Vision of the Warren Court (2020), The Free Speech Century (2018); Sex and the Constitution (2017); Top Secret: When Government Keeps Us In the Dark (2007); and Perilous Times: Free Speech in Wartime (2004). In 2013, President Obama appointed Mr. Stone to serve on a five-member Review Group on National Security Intelligence in the wake of Edward Snowden's leaks about the NSA. The result was The NSA Report, which included 46 recommendations for improving the nation's foreign intelligence programs, many of which have been adopted and put into place. Thereafter, Mr. Stone served as a Senior Advisor to the Director of National Intelligence.

Table of Contents

Opening Statement
Lee C. Bollinger and Geoffrey R. Stone

The Pentagon Papers Framework: Fifty Years Later
Allison Aviki, Jonathan Cedarbaum, Rebecca Lee, Jessica Lutkenhaus, Seth Waxman, and Paul Wolfson

Part One: The National Security Perspective
1. Fighting for Balance
Avril Haines
2. Crafting a New Compact in the Public Interest: Protecting the National Security in an Era of Leaks
Keith B. Alexander and Jamil N. Jaffer
3. Leaks of Classified Information: Lessons Learned from a Lifetime on the Inside
Michael Morell
4. Reform and Renewal: Lessons from Snowden and the 215 Program
Lisa Monaco
5. Government Needs to Get Its Own House in Order
Richard A. Clarke

Part Two: The Journalist Perspective
6. Behind the Scenes with the Snowden Files: "How The Washington Post and National Security Officials Dealt with
Conflicts over Government Secrecy" Behind
Ellen Nakashima
7. Let's Be Practical: A Narrow Post-Publication Leak Law Would Better Protect the Press
Stephen J. Adler and Bruce D. Brown
8. What We Owe Whistleblowers
Jameel Jaffer
9. The Long, (Futile?) Fight for a Federal Shield Law
Judith Miller
10. Covering the Cyberwars: The Press vs the Government in a New Age of Global Conflict
David Sanger

Part Three: The Academic Perspective
11. Outlawing Leaks
David A. Strauss
12. The Growth of Press Freedoms in the United States Since 9/11
Jack Goldsmith
13 Edward Snowden, Donald Trump, and the Paradox of National Security Whistleblowing
Allison Stanger
14. Information is Power: Exploring a Constitutional Right of Access
Mary-Rose Papandrea
15. Who Said What to Whom
Cass R. Sunstein
16. Leaks in the Age of Trump
Louis Michael Seidman

The Report of the Commission
Lee C. Bollinger
John O. Brennan
Kathleen Carroll
Stephen W. Coll
Eric Holder
Ann Marie Lipinski
Geoffrey R. Stone

Closing Statement
Lee C. Bollinger and Geoffrey R. Stone

Editorial Reviews

2021-02-24
A roundtable reconsideration of the Pentagon Papers and the legal precedents its publication yielded.

Assembling journalists, jurists, and security experts, editors Bollinger and Stone present 16 essays and a concluding report by an impromptu commission identifying points of friction and recommending next steps. At issue is the applicability of the laws surrounding Daniel Ellsberg’s delivery of the Pentagon Papers to the New York Timesand Washington Post, both of which published excerpts from these classified documents. The Nixon administration moved to enjoin publication, and the Supreme Court, in “a stunning decision rejecting the government’s position and protecting the right of the freedom of the press,” ruled that prior restraint violated the First Amendment in the absence of proof that publication would compromise national security. That was tested in 1979, when Progressivemagazine attempted to publish plans to build a hydrogen bomb; the court ruled that the public had no need to know how to do so, upholding the constitutional validity of the ban. Fast-forward to the WikiLeaks and Edward Snowden cases, and the court’s decision—which essentially holds that a “leaker” may be punished but the publisher not—becomes problematic. One central reason, observes former White House security adviser Avril Haines, is that “traditional media outlets” have ceded ground to myriad online publications such that “we cannot rely on the press to be a separate actor in the framework capable of making a considered judgment about what is newsworthy.” Several contributors thereby support a “new compact” that proposes both incentives and disincentives for publishers as well as broader Congressional oversight of classified information and its declassification. Others argue against such measures as bringing leaker Julian Assange to trial, for “sooner or later a prosecutor or future attorney general will determine that the precedent set…can be used to prosecute a reporter—next time, from a real news organization.”

Civil libertarians and security specialists will find this of considerable interest.

Kirkus Reviews

"Civil libertarians and security specialists will find this of considerable interest."—Kirkus

From the Publisher