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Background
The NCFL Public Forum resolution asks the question of whether or not it should be illegal to publish information related to the intelligence activities of the US. In a more simple manner, it asks the question of whether or not newspapers, including modern electronic content providers, should be able to publish classified US government material that is provided to them through leaks.
The question is significant because while it has always been illegal to leak/provide classified intelligence material to news organizations, it is generally accepted (there may be some restrictions) that news organizations are free to publish the material once they have received it. The ability to publish it is generally accepted to be part of their free speech/First Amendment rights.
William E. Lee, Professor, June 2008, Grady College of Journalism and Mass Communication, University of Georgia, American University Law Review, 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, https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1041&context=aulr, p. 1456-7
Equally extraordinary is former Attorney General Alberto R. Gonzales’ recent claim that the government has the legal authority to prosecute journalists for publishing classified information. This runs against the broad consensus among prior congressional and executive branch officials that the general espionage statutes do not apply to press publication
Leaks and their publication have been important parts of American history.
FAO “Fritz” Schwarz, March 2015, Schwartz Jr is chief counsel at the Brennan Center for Justice at NYU School of Law and was chief counsel for the US Senate’s Church Committee, 2015, .. Democracy in the Dark: The Seduction of Government Secrecy, Kindle edition, page number at end of card
While there have always been leaks, leaking rises and falls, with technology being one factor in the ease and volume of leaks. This can be illustrated by comparing an unlikely quartet of leakers: Benjamin Franklin, Daniel Ellsberg, Chelsea Manning, and Edward Snowden. In 1773, Benjamin Franklin helped fuel the American Revolution by leaking to the Massachusetts legislature a small packet of thirteen original handwritten letters from the royal governor of Massachusetts, Thomas Hutchinson, to a high-ranking British government official. The letters showed that then Lt. Gov. Hutchinson had urged the British to toughen their restraints on the colonists, including by “abridgment of what are called English liberties.”5 Two hundred years later, Daniel Ellsberg fanned opposition to the Vietnam War by leaking most of the seven thousand pages of the government’s secret history of escalation in Vietnam, known as the Pentagon Papers. The documents Ellsberg leaked were typed and could be copied by a machine. But it took Ellsberg several weeks to surreptitiously Xerox the papers. In the twenty-first century, leakers have used digital technology to access, copy, and transfer much more information than ever before, in smaller and smaller packages, and from far-flung locations. While serving as a U.S. Army private in Iraq in 2010, Chelsea (then Bradley) Manning was able to access classified government computer networks, and with a few keystrokes, burn to rewritable CDs more than a hundred times the volume of the Pentagon Papers. Manning provided WikiLeaks with electronic copies of some 700,000 secret government documents.6 Three years later, Edward Snowden, a private NSA contractor, exploited NSA’s antique cybersecurity system and, from his office in Hawaii, remotely downloaded onto thumb drives more than 1.7 million U.S. intelligence files, thousands of British spy files, and thousands of files other countries had shared with the United States. The Snowden files shed more light on NSA actions than had ever been done and ignited controversy and public-policy debate in the United States and around the world. Schwarz Jr., Frederick A.O.. Democracy in the Dark: The Seduction of Government Secrecy (Kindle Locations 3077-3083). The New Press. Kindle Edition.
And at least one debater has played a significant role – Glenn Greenwald, a journalist and former champion debater at George Washington University, is the one who broke the Edward Snowden story.
While the legal authority to publish is generally protected, there are limits. The question of the limits is complicated, however, because they have never been clearly established. The Pentagon Papers case, for example, went all the way to the Supreme Court (New York Times v. US), and the Supreme Court concluded that while there may be instances where the government can prevent publication of classified material, that those instances must be extreme (represent extreme threats to national security) and that the material leaked in the Pentagon Papers did not fit into that category. There has not yet been litigation to force a definition of what may represent a more extreme threat.
Derigan Silver, Assistant Professor, Department of Mass Communications and Journalism Studies, University of Denver, Fall 2008, Communications Law & Policy, National Security And The Press: The Government’s Ability To Prosecute Journalists For The Possession Or Publication Of National Security Information, https://www.law.upenn.edu/institutes/cerl/conferences/ethicsofsecrecy/papers/reading/Silver.pdf , p. 143
Although the issue of government secrecy has taken on higher resonance since September 11, 2001, the debate surrounding how to strike a proper balance between security and open government long predates the terrorist attacks. However, as Benjamin S. DuVal Jr. noted, while debates over secrecy have been common since the founding fathers, there was little discussion of the First Amendment aspects of secrecy until late in the twentieth century, and the Supreme Court of the United States has yet to address the issue fully. It was not until 1971 that the high Court ruled on the press’s ability to publish classified government documents in the famous Pentagon Papers case, New York Times Co. v. United States. n31 In that case, the Court, by a 6-3 vote, set a very high standard for preventing the press from publishing classified information. In a per curiam opinion accompanied by six concurring and three dissenting opinions, the Court refused to grant the government’s request for an injunction to prevent the New York Times, the Washington Post and other newspapers from publishing a series of articles based on a classified study of U.S. involvement in Vietnam. The Court held that any government attempt to prevent publication came to the Court with a heavy presumption of unconstitutionality. However, the justices left open the question of whether the two newspapers could be prosecuted after the fact of possession or publication. In dicta, some of the justices indicated that the newspapers could or should be prosecuted under the Espionage Act, even if the government could not prevent publication. More than thirty years after the Pentagon Papers case, there is still a great deal of uncertainty over how the judiciary should deal with attempts to punish the possession or publication of national secrets. Duval wrote, “Despite a rapidly growing body of case law,. . . the Court’s decisions fail to deal in any comprehensive fashion with the issue. More seriously, the Court has failed to come to grips with the distinctive character of the secrecy issue.” While the Supreme Court has yet to deal with the issue, many commentators have analyzed statutes and case law to determine to what extent the government can prosecute journalists.
Moreover, there is a question of what it would mean to make publishing the material “illegal.” While this seems obvious, there is a distinction between prior restraint on publication and punishing for publication after publication. How/when the publication becomes illegal has implications for the First Amendment claim.
These nuances (how extreme of a threat, if there is a restraint on publication v. penalty after the fact) will probably not get discussed much in the debates, but understanding them is important to understanding the literature and many of the examples used in the debates, because the literature will generally not assume treating the resolution as an absolute general statement.
A second important question that is important for understanding and discussion is, What constitutes a “publisher?” Generally, those protected by the First Amendment include news organizations, but not ANY publisher (if anyone with a computer could be considered a publisher whose rights are protected by the First Amendment then a leaker could just publish directly and claim they are a publisher).
Wikileaks, by directly publishing a dump of documents it received, has opened the question of what constitutes a “publisher.”
Kellie C. Clark and David Barnett, Winter 2012, University of Dayton Law Review, The Application Of The Reporter’s Privilege And The Espionage Act To Wikileaks, p. 177-9
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Should WikiLeaks Qualify for the Reporter’s Privilege?
As described above, in order for WikiLeaks to be able to assert a claim of privilege as a journalist, it would have to show that it was engaged in investigative newsgathering and reporting-a process in which WikiLeaks does not engage. While WikiLeaks itself characterizes its website as a form of media and alleges it is engaging in the journalistic process-by employing reporters who review, rewrite, and publish the material received from WikiLeaks’ anonymous sources-in truth, WikiLeaks does not engage in any form of investigative reporting. WikiLeaks solicits sources to supply leaked material, which it then publishes and disseminates to the public. Essentially, stories and their corresponding documentation are brought to WikiLeaks as an outlet for publication. While WikiLeaks is arguably engaged in the collecting of news with the intention of dissemination, the mere mass dumping and publication of documents does not constitute investigative newsgathering and reporting. Investigative journalism is often labeled “watchdog journalism,” which generally involves the following, investigating, and development of a story over a period of time in order to ascertain the facts, uncover the truth, and disseminate that truth to the public at large. Investigative reporting involves being a “sort of global police reporter, uncovering intelligence pratfalls, foreign intrigues, and administration wrongdoing” throughout the reporting and investigative process. Investigative reporting is a form of traditional journalism, often considered tough and skeptical, but involves all of the same elements of traditional story formation in which all reporters engage to develop their stories. Further, investigative reporters “lay out the facts” and also “tell the reader what they add up to.” Investigative reporters “adopt[] words and metaphors, solve[] a narrative puzzle and assess[] and interpret[]” the facts of their story for their reader. Additionally, when assessing the application of the reporter’s privilege, courts have focused on the activity in which the reporter engaged-specifically allowing the application of the privilege in instances where the reporter engaged in traditional reporting strategies, such as conducting interviews, performing research, gathering data, and engaging in editorial judgment-making. WikiLeaks’ dumping of leaked documents with an introductory description hardly constitutes “investigative reporting.” WikiLeaks wholly fails to engage in any of the outlined elements of investigative reporting: it does not conduct interviews; it does not independently investigate stories; and it does not independently gather information in an effort to produce its own commentary on a newsworthy story. WikiLeaks fails to undertake any journalistic or literary endeavor. Merely playing the role of a Xerox machine does not constitute creation. While WikiLeaks verifies the stories and documents leaked to it, this alone is a far cry from the investigative journalism outlined by Bulow and Madden, as well as the subsequent cases that followed these decisions, in identifying the “legitimate press” the law was concerned in protecting. Further, because WikiLeaks is not a “traditional” form of media, it is also unlikely that state shield laws would offer more
Non-traditional publishers are especially threatening to national security
David McCraw is Vice President and Assistant General Counsel of the New York Times Company. Stephen Gikow is the 2012-13 First Amendment Fellow at The Times, Summer 2013, Harvard Civil Rights-Civil Liberties Law Review, The End to an Unspoken Bargain? National Security and Leaks in a Post-Pentagon Papers World, https://harvardcrcl.org/wp-content/uploads/2011/09/CRCL_McCraw-Gikow_print-version.pdf, p. 488-9
- The Rise of Nontraditional Publishers
As the government ratcheted up its classification efforts, a new type of organization was developing to combat government secrecy: the nontraditional publisher. WikiLeaks is easily the most famous example of this outlet, but there are others, including Balkan Leaks and OpenLeaks. The potential number of such nontraditional publishers is limitless; they are the product of new technology and new distribution channels, and they appear to be constrained only by the number of people willing to create them. Even if they prove to be less menacing in reality, these nontraditional publishers present an existential threat to national security, government power, and the viability of the model of mutual restraint. As noted, WikiLeaks is the primary example of a nontraditional publisher, though the lessons drawn from its example apply more broadly. Described by its founder Julian Assange, WikiLeaks exists in order to “expose injustices in the world and try to rectify them.” n101 It believes in greater transparency, particularly concerning U.S. wars in the Middle East. WikiLeaks says that it is responding to what it perceives as troubling and persistent secrecy. Others are more cynical. Judge Louie Gohmert, now a U.S. Representative from Texas’s First Congressional District, has said that WikiLeaks’s “real motivation is self-promotion and increased circulation.” Why are WikiLeaks and other nontraditional publishers such a threat to the government and ultimately to the balance between transparency and secrecy that was struck after The Pentagon Papers? It is a matter of control — whether the government can exert control, and if not, whether the publishers have self-control. The government inevitably seeks to monopolize national security information through classification, and nontraditional publishers directly threaten its ability to do so. What is more, nontraditional publishers are subject to less control than other media outlets, and it is unclear whether these new publishers will exert any kind of restraint whatsoever, even when the public interest would best be served by keeping information secret. There are three aspects of these nontraditional publishers that are particularly threatening to the government’s attempt to keep secrets. First and foremost, these organizations transcend traditional geographical boundaries. “The Internet’s ability to cross national borders seamlessly and at a low cost concomitantly reduces the traditional power of nation-states to limit information distribution.” This supranational structure makes offshore Internet publishers able to withstand legal and other attacks. The U.S. government, for example, was aware that certain State Department cables had been leaked before any of the documents were published, but it “did not seek to enjoin WikiLeaks from publication because doing so would have been fruitless.” It is equally difficult for the law to reach such an organization after publication given the organization’s indefinite and imprecise structure; n106 and technical and business measures — including denial-of-service attacks and the withdrawal of technical support by several major U.S. companies — did not stem the tide of WikiLeaks’s releases. Second, advances in the state of technology and the ease of distribution make a leak that actually does threaten national security potentially disastrous. It seems likely that the days are gone when a newspaper could publish damaging information and enemies would seemingly fail to see it. As former Secretary of State Hillary Clinton put it, “dangerous information can be sent around the world with the click of a keystroke.” And few constraints on the transmission of leaked information exist. WikiLeaks had the ability to reveal over 250,000 cables, although it initially released only a fraction of that number. n111 Such a vast dump of information makes it that much harder for the government to know precisely what has been leaked and what the harm of that leak could be. Third, and perhaps most important for the threatened model of mutual restraint, WikiLeaks and other nontraditional publishers have not defined their ethical and moral obligations in the same way that traditional publishers have. One of the key understandings underpinning the bargain of mutual restraint is that traditional publishers exercise discretion and avoid publications that would risk serious harm to national security. WikiLeaks and other nontraditional publishers are not bound by this ethos or any journalistic professional code. n114 To the extent that there is a guiding principle for new, nontraditional publishers, it is that transparency itself is a compelling and justifiable good. As Alan Rusbridger of The Guardian said of WikiLeaks, “the website’s initial instincts were to publish more or less everything.” n115 In a world where anyone can be a nontraditional publisher, this lack of insight into publishing standards is understandably problematic for the government and the public. It is perhaps unsurprising then that the government’s reaction to WikiLeaks has been exceedingly harsh. The response of Harold Koh, then the Legal Adviser to the State Department, to WikiLeaks’s attorney, Jennifer Robinson, is emblematic: “You have undermined your stated objective by disseminating this material widely, without redaction, and without regard to the security and sanctity of the lives your actions endanger. We will not engage in a negotiation regarding the further release or dissemination of illegally obtained U.S. Government classified materials.” n117 Senator Joseph Lieberman said the WikiLeaks cable dump was “the most serious violation of the Espionage Act in our history” and called for the extradition of Julian Assange. This extreme reaction was not limited to those within the government; major U.S. companies actively opposed WikiLeaks. Amazon.com stopped hosting the website on its servers, ostensibly because WikiLeaks violated its terms of service. Visa and PayPal, among others, stopped processing payments to the organization, and many — including some journalists — attacked the organization as illegitimate. As David Carr put it in The Times, the backlash against WikiLeaks “would seem unthinkable had it been made against mainstream newspapers.” Not to be overlooked is the curious place of the public in all of this. If the post-Pentagon Papers model is viewed as a sort of unspoken pact between the press and the government, WikiLeaks-type publishers are most easily viewed as a clear external threat to the system. But if the tacit bargain was really between the government and the public, with the press acting as its proxy, then the rise of nontraditional publishers requires a more nuanced analysis. In that case, WikiLeaks and its progeny can be seen as the escalation of the public’s side of the bargain — members of the public can publish what they want without the intermediation of the mainstream press. Significantly, it does not matter whether the public as a whole endorses leaks like those published by WikiLeaks. All that matters is that a small portion of the public, a portion that is willing to publish, endorses those values. In other words, we live in a world where only part of the public needs to signal its unwillingness to abide by mutual restraint. This is not how the disorderly situation has been viewed historically, and it is not at all clear that the public is a direct party to the existing and evolving bargain — or even how the public as a whole feels about WikiLeaks-style disclosures. That said, the rise of nontraditional publishers is real, as is their relationship to a segment of the public that is increasingly fed up with secrecy and what they see as manipulation, both by the government and by the mainstream media.
And this topic has taken on particular recent significance since Trump has decided to consider prosecuting Assange/Wikileaks for publication.
Elias Groll, April 21, 2017, Foreign Policy, If the U.S. could prosecute Assange, it would have already done so, https://foreignpolicy.com/2017/04/21/if-the-u-s-could-prosecute-assange-it-would-have-already-done-so/
While the Obama administration prosecuted more leakers of classified information than all previous administrations combined, there was one target they could never quite figure out how to go after without getting ensnared in the First Amendment rights of journalists. From his perch at the Ecuadorean Embassy, the journalist-cum-transparency activist Julian Assange could expose the U.S. government’s mostly closely held secrets — and American prosecutors could do nothing about it. But now the Trump administration is considering throwing out its predecessor’s conclusion that a prosecution of Assange could open the door to legal attacks on mainstream journalism. According to the Washington Post, the U.S. Justice Department is planning to charge Assange. U.S. Attorney General Jeff Sessions called his arrest “priority.” The sudden vilification of Assange and WikiLeaks, which candidate Donald Trump cheered endlessly during his presidential campaign for its role in disseminating harmful information about his rival, represents an abrupt change of stance. CIA chief Mike Pompeo just slammed WikiLeaks as a “hostile intelligence service” — the site had released details of CIA hacking tools — which marked a sharp departure from the previous summer, when Pompeo tweeted out WikiLeaks’ publication of hacked DNC emails And the change of heart comes as FBI and congressional investigators continue to zero in on the Trump campaign’s possible coordination with WikiLeaks and Russian intelligence to hack political rivals and publish harmful information ahead of the election In an email to Foreign Policy, Assange lawyer Barry Pollack said Pompeo’s attack on his client demonstrates that there has “never been a time in our history when independent reporters disseminating truthful information has been more important.” “My hope is that the Department of Justice will come to the conclusion that no one should be the subject of a criminal investigation for their role in publishing accurate information,” Pollack said. “Such investigations chill free speech and deprive the public of its right to truthful information.”
The threat to prosecute Assange, and the Pro’s advocacy both represent a radical departure from the status quo
Gabriel Schoenfeld, 2010, Schoenfeld is a Senior Fellow at the Hudson Institute in Washington, DC, and a resident scholar at the Witherspoon Institute in Princeton, New Jersey. Necessary Secrets: National Security, the Media, and the Rule of Law . W. W. Norton & Company. Kindle Edition, page number at end of card
Still, the fact also remains that the publication of leaked secrets—unlike the theft of secrets in classic espionage—has never led to an actual criminal prosecution for treason or sedition in the founding era or since. Indeed, even if Bill Keller is blithely mistaken about what the inventors of this country intended, he can still take comfort from the fact that, in our early history, warnings of severe sanctions for such conduct came together with rather benign punishment in virtually every case. Indeed, prosecutions for publication of leaks, as best as I can ascertain, do not appear in the historical record. Leakers themselves were not treated with particular harshness; the usual penalty, if there was a penalty at all, was forfeiting one’s official position and suffering some measure of disgrace in the public eye. The same laxity with regard to publication arguably prevails today, with government officials issuing dire warnings not to publish sensitive material but then doing nothing more than throwing up their hands when the press ignores their pleas. Then as now, there was perhaps recognition that a cure would be worse than the disease. Schoenfeld, Gabriel. Necessary Secrets: National Security, the Media, and the Rule of Law (p. 81). W. W. Norton & Company. Kindle Edition.
Pro teams not only need to realize that they will be called upon to defend this radical change, but also that there are really few (if any) advocates for defending the resolution as a blanket statement. Even one of the strong academic defenders of the general principles behind the resolution offers this caveat:
Gabriel Schoenfeld, 2010, Schoenfeld is a Senior Fellow at the Hudson Institute in Washington, DC, and a resident scholar at the Witherspoon Institute in Princeton, New Jersey. Necessary Secrets: National Security, the Media, and the Rule of Law . W. W. Norton & Company. Kindle Edition, page number at end of card
YET THERE IS another side to the story that must not be brushed aside. Legal action against the press would have undeniable costs to our democracy and our freedom. We cannot lose sight of facts that we noted at the outset, namely, that our national security system is saddled with pervasive mis- and overclassification that remains entrenched despite universal recognition of its existence and numerous attempts at reform. We face the ineradicable potential for misuse of secrecy to obscure incompetence and to promote illicit ends. Closed doors are incubators for corruption and can enable units of government, as in Watergate and the Iran-Contra affair, to depart from the confines of law. Judge Gurfein’s words in the Pentagon Papers case—that a “ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know”—are potent and must be acknowledged as such. The public interest in transparency is diametrically opposed to the public interest in secrecy. With the two desiderata set in extreme tension, would it truly make sense for the Justice Department to prosecute the press on each and every occasion when it drops classified information into the public domain? Even to an advocate of more stringent security like myself, such an approach would be absurd, a cure that would drain the lifeblood from democratic discourse and kill the patient. Fortunately there are far more attractive avenues for finding the proper balance. The Pentagon Papers case is once again a lodestar. The road out of our perplexing dilemma was mapped there in a concurring opinion of uncommon eloquence by Justice Potter Stewart, a devoted friend of the press and protector of the First Amendment. The Constitution entrusts the executive, Stewart wrote, with “largely unshared power” in the realm of foreign policy and national security. The executive thus also bears “the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully.” Being unshared, “it is an awesome responsibility, requiring judgment and wisdom of a high order.” A host of considerations “dictate that a very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion.”11 In the face of the danger of degeneration into a dense web of self-interested secrecy of the sort Stewart is describing, it becomes impossible to quarrel with him that, in the final analysis, “the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry—in an informed and critical public opinion which alone can here protect the values of democratic government.” For this reason Stewart concluded that “a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people.” But Stewart was thus placing government secrets between a hammer and an anvil. For even as he saw a central role for an informed and free press, he did not blink from asserting the government’s overriding right to control information. He concurred with Justice White’s holding that the Times could well be criminally liable for publishing secrets. In his own opinion, he stated flatly that “in the area of basic national defense the frequent need for absolute secrecy is, of course, self-evident,” and “that it is the constitutional duty of the Executive—as a matter of sovereign prerogative…to protect the confidentiality necessary to carry out its responsibilities in the fields of international relations and national defense.” Schoenfeld, Gabriel. Necessary Secrets: National Security, the Media, and the Rule of Law (pp. 269-270). W. W. Norton & Company. Kindle Edition.
With this background and information in mind, we will now turn to a discussion of the Pro and Con arguments.
Pro
Framework
US Law should make it illegal to publish classified information concerning the intelligence activities of the United States.
I think the broader question the resolution asks is whether or not national security interests should take priority over rights protection. Why? Because it is very difficult to argue that publishing at least some intelligence does not threaten national security and that such publication is not at all protected by the First Amendment. While there are certainly ways to minimize the link to both national security and the First Amendment, that will not be easy, creating a general debate between national security and rights.
Given this, Pro teams should start with framework arguments that generally defend the importance of national security over individual rights.
First, teams should make comparative arguments that argue that national security is more important than rights protected by disclosing the information.
Gabriel Schoenfeld, 2010, Schoenfeld is a Senior Fellow at the Hudson Institute in Washington, DC, and a resident scholar at the Witherspoon Institute in Princeton, New Jersey. Necessary Secrets: National Security, the Media, and the Rule of Law . W. W. Norton & Company. Kindle Edition, page number at end of card
The problem at the core of Morison, as Wilkinson identified it, was thus the abiding tension between the flow of “the information needed for a democracy to function, and…leaks that imperil the environment of physical security which a functioning democracy requires.” The question is “how a responsible balance may be achieved” between these antagonistic forces. The answer supplied by Wilkinson is that where the protection of national security secrets is concerned, the courts must be deferential to the executive. Such deference, he acknowledged, has indisputable costs. It means that “years may pass before the basis of portentous decisions becomes known. The public cannot call officials to account on the basis of material of whose existence and content it is unaware. What is more, classification decisions may well have been made by bureaucrats far down the line, whose public accountability may be quite indirect.”8 Nonetheless, the alternative of not stanching the flow of national security secrets would be worse; indeed, its consequences for the public “would be grave”: To reverse Morison’s conviction on the general ground that it chills press access would be tantamount to a judicial declaration that the government may never use criminal penalties to secure the confidentiality of intelligence information. Rather than enhancing the operation of democracy, as Morison suggests, this course would install every government worker with access to classified information as a veritable satrap. Vital decisions and expensive programs set into motion by elected representatives would be subject to summary derailment at the pleasure of one disgruntled employee.9 Schoenfeld, Gabriel. Necessary Secrets: National Security, the Media, and the Rule of Law (p. 231). W. W. Norton & Company. Kindle Edition.
Note that this card also says that security is important to protect democracy, which is the fundamental impact to the First Amendment claim.
Second, Pro teams should argue that we have moral obligation to protect existential (threatening survival) risks.
Nick Bostrom 13, Philosopher at the University of Oxford, February 2013,“Existential Risk Prevention as Global Priority, https://www.existential-risk.org/concept.pdf
We have thus far considered existential risk from the perspective of utilitarianism (combined with several simplifying assumptions). We may briefly consider how the issue might appear when viewed through the lenses of some other ethical outlooks. For example, the philosopher Robert Adams outlines a different view on these matters: I believe a better basis for ethical theory in this area can be found in quite a different direction—in a commitment to the future of humanity as a vast project, or network of overlapping projects, that is generally shared by the human race. The aspiration for a better society—more just, more rewarding, and more peaceful—is a part of this project. So are the potentially endless quests for scientific knowledge and philosophical understanding, and the development of artistic and other cultural traditions. This includes the particular cultural traditions to which we belong, in all their accidental historic and ethnic diversity. It also includes our interest in the lives of our children and grandchildren, and the hope that they will be able, in turn, to have the lives of their children and grandchildren as projects. To the extent that a policy or practice seems likely to be favorable or unfavorable to the carrying out of this complex of projects in the nearer or further future, we have reason to pursue or avoid it. … Continuity is as important to our commitment to the project of the future of humanity as it is to our commitment to the projects of our own personal futures. Just as the shape of my whole life, and its connection with my present and past, have an interest that goes beyond that of any isolated experience, so too the shape of human history over an extended period of the future, and its connection with the human present and past, have an interest that goes beyond that of the (total or average) quality of life of a population-at-a-time, considered in isolation from how it got that way. We owe, I think, some loyalty to this project of the human future. We also owe it a respect that we would owe it even if we were not of the human race ourselves, but beings from another planet who had some understanding of it (Adams, 1989, pp. 472–473). Since an existential catastrophe would either put an end to the project of the future of humanity or drastically curtail its scope for development, we would seem to have a strong prima facie reason to avoid it, in Adams’ view. We also note that an existential catastrophe would entail the frustration of many strong preferences, suggesting that from a preference-satisfactionist perspective it would be a bad thing. In a similar vein, an ethical view emphasising that public policy should be determined through informed democratic deliberation by all stakeholders would favour existential-risk mitigation if we suppose, as is plausible, that a majority of the world’s population would come to favour such policies upon reasonable deliberation (even if hypothetical future people are not included as stakeholders). We might also have custodial duties to preserve the inheritance of humanity passed on to us by our ancestors and convey it safely to our descendants.23 We do not want to be the failing link in the chain of generations, and we ought not to delete or abandon the great epic of human civilisation that humankind has been working on for thousands of years, when it is clear that the narrative is far from having reached a natural terminus. Further, many theological perspectives deplore naturalistic existential catastrophes, especially ones induced by human activities: If God created the world and the human species, one would imagine that He might be displeased if we took it upon ourselves to smash His masterpiece (or if, through our negligence or hubris, we allowed it to come to irreparable harm).24 We might also consider the issue from a less theoretical standpoint and try to form an evaluation instead by considering analogous cases about which we have defi- nite moral intuitions. Thus, for example, if we feel confi- dent that committing a small genocide is wrong, and that committing a large genocide is no less wrong, we might conjecture that committing omnicide is also wrong.25 And if we believe we have some moral reason to prevent natural catastrophes that would kill a small Existential Risk Prevention as Global Priority 23 Global Policy (2013) 4:1 ª 2013 University of Durham and John Wiley & Sons, Ltd. number of people, and a stronger moral reason to prevent natural catastrophes that would kill a larger number of people, we might conjecture that we have an even stronger moral reason to prevent catastrophes that would kill the entire human population.
Third, teams should be prepared to generally defend utilitarianism – the greatest good for the greatest number – over rights interests.
Cummiskey 90—David, Professor of Philosophy, Bates [Kantian Consequentialism, Ethics 100.3, p 601-2, p 606, JSTOR]
We must not obscure the issue by characterizing this type of case as the sacrifice of individuals for some abstract “social entity.” It is not a question of some persons having to bear the cost for some elusive “overall social good.” Instead, the question is whether some persons must bear the inescapable cost for the sake of other persons. Nozick, for example, argues that “to use a person in this way does not sufficiently respect and take account of the fact that he is a separate person, that his is the only life he has.”30 Why, however, is this not equally true of all those that we do not save through our failure to act? By emphasizing solely the one who must bear the cost if we act, one fails to sufficiently respect and take account of the many other separate persons, each with only one life, who will bear the cost of our inaction. In such a situation, what would a conscientious Kantian agent, an agent motivated by the unconditional value of rational beings, choose? We have a duty to promote the conditions necessary for the existence of rational beings, but both choosing to act and choosing not to act will cost the life of a rational being. Since the basis of Kant’s principle is “rational nature exists as an end-in-itself’ (GMM, p. 429), the reasonable solution to such a dilemma involves promoting, insofar as one can, the conditions necessary for rational beings. If I sacrifice some for the sake of other rational beings, I do not use them arbitrarily and I do not deny the unconditional value of rational beings. Persons may have “dignity, an unconditional and incomparable value” that transcends any market value (GMM, p. 436), but, as rational beings, persons also have a fundamental equality which dictates that some must sometimes give way for the sake of others. The formula of the end-in-itself thus does not support the view that we may never force another to bear some cost in order to benefit others. If one focuses on the equal value of all rational beings, then equal consideration dictates that one sacrifice some to save many. [continues] According to Kant, the objective end of moral action is the existence of rational beings. Respect for rational beings requires that, in deciding what to do, one give appropriate practical consideration to the unconditional value of rational beings and to the conditional value of happiness. Since agent-centered constraints require a non-value-based rationale, the most natural interpretation of the demand that one give equal respect to all rational beings lead to a consequentialist normative theory. We have seen that there is no sound Kantian reason for abandoning this natural consequentialist interpretation. In particular, a consequentialist interpretation does not require sacrifices which a Kantian ought to consider unreasonable, and it does not involve doing evil so that good may come of it. It simply requires an uncompromising commitment to the equal value and equal claims of all rational beings and a recognition that, in the moral consideration of conduct, one’s own subjective concerns do not have overriding importance.
Security Concerns
In order to win that security considerations trump rights concerns, teams will also need to win that disclosing intelligence information presents a significant security concern.
This can be articulated at a general level, but tying the risk to the threat of terrorism will be persuasive to many judges, as most members of the public have significant concerns (rightly or wrongly) about terrorism risks. There is specific evidence that ties disclosure of secrets to terrorism and broader security risks.
Gabriel Schoenfeld, 2010, Schoenfeld is a Senior Fellow at the Hudson Institute in Washington, DC, and a resident scholar at the Witherspoon Institute in Princeton, New Jersey. Necessary Secrets: National Security, the Media, and the Rule of Law . W. W. Norton & Company. Kindle Edition, page number at end of card
But there is another side to this coin. For when one assesses the content of the major leaks of the founding era, one cannot but be struck by the innocuous nature of the disclosed material, at least in relative terms. Almost every leak that received public attention involved either diplomatic communications or White House decision making. The revelations were often acutely embarrassing and had repercussions in both domestic politics and for the conduct of foreign affairs. But in an age in which open warfare was either under way or threatening to break out, and the survival of the Republic was often at risk, truly sensitive military or intelligence information involving, say, the disposition of American forces or the characteristics of American codes and ciphers, was never the subject of a public breach. In this respect the contrast with our own era is stark. In the twentieth century, which began with a world war and ended with the proliferation of weapons of mass destruction and global terrorism, leaks of classified information can have—and have had—very different consequences than in the age of musket fire and wind-borne ships.
Second, Pro teams should tie the risk of terrorism to a significant impact beyond immediate deaths from suicidal attacks. One common way to do that is to articulate the risks of terrorists using weapons of mass destruction (WMDs).
Gary A. Ackerman 14 & Lauren E. Pinson, Gary is Director of the Center for Terrorism and Intelligence Studies, Lauren is Senior Researcher and Project Manager for the National Consortium for the Study of Terrorism and Responses of Terrorism, An Army of One: Assessing CBRN Pursuit and Use by Lone Wolves and Autonomous Cells, Terrorism and Political Violence, Volume 26, Issue 1
The first question to answer is whence the concerns about the nexus between CBRN weapons and isolated actors come and whether these are overblown. The general threat of mass violence posed by lone wolves and small autonomous cells has been detailed in accompanying issue contributions, but the potential use of CBRN weapons by such perpetrators presents some singular features that either amplify or supplement the attributes of the more general case and so are deserving of particular attention. Chief among these is the impact of rapid technological development. Recent and emerging advances in a variety of areas, from synthetic biology 3 to nanoscale engineering, 4 have opened doors not only to new medicines and materials, but also to new possibilities for malefactors to inflict harm on others. What is most relevant in the context of lone actors and small autonomous cells is not so much the pace of new invention, but rather the commercialization and consumerization of CBRN weapons-relevant technologies. This process often entails an increase in the availability and safety of the technology, with a concurrent diminution in the cost, volume, and technical knowledge required to operate it. Thus, for example, whereas fifty years ago producing large quantities of certain chemical weapons might have been a dangerous and inefficient affair requiring a large plant, expensive equipment, and several chemical engineers, with the advent of chemical microreactors, 5 the same processes might be accomplished far more cheaply and safely on a desktop assemblage, purchased commercially and monitored by a single chemistry graduate student.¶ The rapid global spread and increased user-friendliness of many technologies thus represents a potentially radical shift from the relatively small scale of harm a single individual or small autonomous group could historically cause. 6 From the limited reach and killing power of the sword, spear, and bow, to the introduction of dynamite and eventually the use of our own infrastructures against us (as on September 11), the number of people that an individual who was unsupported by a broader political entity could kill with a single action has increased from single digits to thousands. Indeed, it has even been asserted that “over time … as the leverage provided by technology increases, this threshold will finally reach its culmination—with the ability of one man to declare war on the world and win.” 7 Nowhere is this trend more perceptible in the current age than in the area of unconventional weapons.¶ These new technologies do not simply empower users on a purely technical level. Globalization and the expansion of information networks provide new opportunities for disaffected individuals in the farthest corners of the globe to become familiar with core weapon concepts and to purchase equipment—online technical courses and eBay are undoubtedly a boon to would-be purveyors of violence. Furthermore, even the most solipsistic misanthropes, people who would never be able to function socially as part of an operational terrorist group, can find radicalizing influences or legitimation for their beliefs in the maelstrom of virtual identities on the Internet.¶ All of this can spawn, it is feared, a more deleterious breed of lone actors, what have been referred to in some quarters as “super-empowered individuals.” 8 Conceptually, super-empowered individuals are atomistic game-changers, i.e., they constitute a single (and often singular) individual who can shock the entire system (whether national, regional, or global) by relying only on their own resources. Their core characteristics are that they have superior intelligence, the capacity to use complex communications or technology systems, and act as an individual or a “lone-wolf.” 9 The end result, according to the pessimists, is that if one of these individuals chooses to attack the system, “the unprecedented nature of his attack ensures that no counter-measures are in place to prevent it. And when he strikes, his attack will not only kill massive amounts of people, but also profoundly change the financial, political, and social systems that govern modern life.” 10 It almost goes without saying that the same concerns attach to small autonomous cells, whose members’ capabilities and resources can be combined without appreciably increasing the operational footprint presented to intelligence and law enforcement agencies seeking to detect such behavior.¶ With the exception of the largest truck or aircraft bombs, the most likely means by which to accomplish this level of system perturbation is through the use of CBRN agents as WMD. On the motivational side, therefore, lone actors and small autonomous cells may ironically be more likely to select CBRN weapons than more established terrorist groups—who are usually more conservative in their tactical orientation—because the extreme asymmetry of these weapons may provide the only subjectively feasible option for such actors to achieve their grandiose aims of deeply affecting the system. The inherent technical challenges presented by CBRN weapons may also make them attractive to self-assured individuals who may have a very different risk tolerance than larger, traditional terrorist organizations that might have to be concerned with a variety of constituencies, from state patrons to prospective recruits. 11 Many other factors beyond a “perceived potential to achieve mass casualties” might play into the decision to pursue CBRN weapons in lieu of conventional explosives, 12 including a fetishistic fascination with these weapons or the perception of direct referents in the would-be perpetrator’s belief system.¶ Others are far more sanguine about the capabilities of lone actors (or indeed non-state actors in general) with respect to their potential for using CBRN agents to cause mass fatalities, arguing that the barriers to a successful large-scale CBRN attack remain high, even in today’s networked, tech-savvy environment. 13 Dolnik, for example, argues that even though homegrown cells are “less constrained” in motivations, more challenging plots generally have an inverse relationship with capability, 14 while Michael Kenney cautions against making presumptions about the ease with which individuals can learn to produce viable weapons using only the Internet. 15 However, even most of these pundits concede that low-level CBR attacks emanating from this quarter will probably lead to political, social, and economic disruption that extends well beyond the areas immediately affected by the attack. This raises an essential point with respect to CBRN terrorism: irrespective of the harm potential of CBRN weapons or an actor’s capability (or lack thereof) to successfully employ them on a catastrophic scale, these weapons invariably exert a stronger psychological impact on audiences—the essence of terrorism—than the traditional gun and bomb. This is surely not lost on those lone actors or autonomous cells who are as interested in getting noticed as in causing casualties.¶ Proven Capability and Intent¶ While legitimate debate can be had as to the level of potential threat posed by lone actors or small autonomous cells wielding CBRN weapons, possibly the best argument for engaging in a substantive examination of the issue is the most concrete one of all—that these actors have already demonstrated the motivation and capability to pursue and use CBRN weapons, in some cases even close to the point of constituting a genuine WMD threat. In the context of bioterrorism, perhaps the most cogent illustration of this is the case of Dr. Bruce Ivins, the perpetrator behind one of the most serious episodes of bioterrorism in living memory, the 2001 “anthrax letters,” which employed a highly virulent and sophisticated form of the agent and not only killed five and seriously sickened 17 people, but led to widespread disruption of the U.S. postal services and key government facilities. 16¶ Other historical cases of CBRN pursuit and use
by lone actors and small autonomous cells highlight the need for further exploration. Among the many extant examples: 17¶ Thomas Lavy was caught at the Alaska-Canada border in 1993 with 130 grams of 7% pure ricin. It is unclear how Lavy obtained the ricin, what he planned to do with it, and what motivated him.¶ In 1996, Diane Thompson deliberately infected twelve coworkers with shigella dysenteriae type 2. Her motives were unclear.¶ In 1998, Larry Wayne Harris, a white supremacist, was charged with producing and stockpiling a biological agent—bacillus anthracis, the causative agent of anthrax.¶ In 1999, the Justice Department (an autonomous cell sympathetic to the Animal Liberation Front) mailed over 100 razor blades dipped in rat poison to individuals involved in the fur industry.¶ In 2000, Tsiugio Uchinshi was arrested for mailing samples of the mineral monazite with trace amounts of radioactive thorium to several Japanese government agencies to persuade authorities to look into potential uranium being smuggled to North Korea.¶ In 2002, Chen Zhengping put rat poison in a rival snack shop’s products and killed 42 people.¶ In 2005, 10 letters containing a radioactive substance were mailed to major organizations in Belgium including the Royal Palace, NATO headquarters, and the U.S. embassy in Brussels. No injuries were reported.¶ In 2011, federal agents arrested four elderly men in Georgia who were plotting to use ricin and explosives to target federal buildings, Justice Department officials, federal judges, and Internal Revenue Service agents.¶ Two recent events may signal an even greater interest in CBRN by lone malefactors. First, based on one assessment of Norway’s Anders Breivik’s treatise, his references to CBRN weapons a) suggest that CBRN weapons could be used on a tactical level and b) reveal (to perhaps previously uninformed audiences) that even low-level CBRN weapons could achieve far-reaching impacts driven by fear. 18 Whether or not Breivik would actually have sought or been able to pursue CBRN, he has garnered a following in several (often far-right) extremist circles and his treatise might inspire other lone actors. Second, Al-Qaeda in the Arabian Peninsula (AQAP) released two issues of Inspire magazine in 2012. Articles, on the one hand, call for lone wolf jihad attacks to target non-combatant populations and, on the other, permit the use of chemical and biological weapons. The combination of such directives may very well influence the weapon selection of lone actor jihadists in Western nations. 19
There is a lot of additional evidence in the file related to terrorism risks.
Executive Power
Another twist on the security argument is to claim that allowing the executive branch of government to punish publication of intelligence secrets would strengthen the power of the executive branch of government – to promote the nation of a “unitary executive,” strengthening executive power.
David Pozen, Professor of Law at Columbia Law School, December 2013, Harvard Law Review, The Leaky Leviathan: Why The Government Condemns And Condones Unlawful Disclosures Of Information The Leaky Leviathan: Why The Government Condemns And Condones Unlawful Disclosures Of Information, https://harvardlawreview.org/2013/12/the-leaky-leviathan-why-the-government-condemns-and-condones-unlawful-disclosures-of-information/, p. 621-2
Leaking is, however, an assault on a certain vision of the unitary executive. Its ubiquity both reflects and exacerbates what Professors Sanford Levinson and Jack Balkin refer to as the United States’ “distributed dictatorship,” in which the presidency amasses ever greater powers even as the President himself experiences diminishing ability to control their use. n481 The intragovernmental struggles that manifest in leaks provide a glimpse of the pluralism and competition that characterize modern administrative decisionmaking. To some significant extent, the rising volume of leaks that has been observed in recent years n482 may be an epiphenomenal expression of these struggles: in the disclosures to the press, we see surfacing some of the underlying tensions fostered by the executive’s simultaneous growth in functional authority and internal complexity. While privacy proponents were lamenting the loss of control over one’s information and image that individuals have been experiencing in the private sphere, n483 the government was experiencing an analogous loss of self-possession in the public sphere. Prominent legal theorists Eric Posner and Adrian Vermeule have been asking Americans to accept that they cannot hope to control the executive branch through law in any rigorous, ex ante fashion. n484 The phenomenon of leaks suggests the President cannot hope to do so either.
There is good evidence that strong executive power also promotes security.
Advocacy
In terms of advocacy, debaters should be prepared to have evidence that specifically advocates prosecution for publishing leaked intelligence.
Gabriel Schoenfeld, 2010, Schoenfeld is a Senior Fellow at the Hudson Institute in Washington, DC, and a resident scholar at the Witherspoon Institute in Princeton, New Jersey. Necessary Secrets: National Security, the Media, and the Rule of Law . W. W. Norton & Company. Kindle Edition, page number at end of card
If prosecutors must exercise discretion in their choice of when to prosecute, so too must editors exercise discretion in their choice of what to publish. If they publish secrets whose disclosure is arguably harmless—say, for example, the still-classified CIA budget for fiscal year 1964—or secrets that conceal abuses, say, for example, the cynical manipulation of information “by those intent on self-protection or self-promotion,” they should trust that, if indicted by a wayward government, a jury of twelve citizens would evaluate the government’s ill-conceived prosecution and vote to acquit.* On the other hand, if editors disclose a secret vital to our national security—and have no justification for doing so beyond a desire to regale readers with an “interesting yarn” replete with “startling and amusing tidbits” and haul in a Pulitzer Prize along the way—they should also be prepared to face the judgment of a jury of twelve citizens and, if convicted, the full wrath of the law. Newspaper editors are fully capable of exercising discretion about sensitive matters when they so choose. A dramatic example came to light in 2009 when the Times revealed that it had succeeded for a period of six months in suppressing news that one of its reporters, David Rohde, had been kidnapped in Afghanistan by the Taliban. The editors seemed to exercise the art of concealment with greater success than the U.S. government’s own secrecy apparatus is often capable of achieving. Neither the Times nor its industry competitors, who readily agreed to gag themselves at the Times’s request, published a word about the missing journalist until Rohde escaped his captors and made his way to safety. “We hate sitting on a story,” explained Bill Keller. “But sometimes we do. I mean, sometimes we do it because the military or another government agency convinces us that, if we publish information, it will put lives at risk.”12 All honor to Bill Keller for that. But when the lives of non-journalists are on the line, such discretion cannot be—and under our current laws is not—a strictly voluntary affair. Despite Keller’s claims the Times and other leading newspapers have been far from responsible in their handling of secrets. But even if they were models of rectitude, the public would still be left without recourse in the face of other lesser publications that are not such models, or openly disloyal outlets that might in the future come along, publishing the modern-day equivalent of the sailing dates of transports or the movement of troops. Schoenfeld, Gabriel. Necessary Secrets: National Security, the Media, and the Rule of Law (pp. 271-272). W. W. Norton & Company. Kindle Edition.
The government needs to be able to constrain publication to protect national security.
Kyle Witucky, Capital University Law Review, Spring, 2010, Striking The Optimal Balance Point Between National Security And A Free Press: A Model Statute And A Call To Congress, https://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1016&context=lajur , p. 567-70
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. n21 In 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.” n22 Speaking on behalf of the White House, Snow noted that “nobody is going to deny First Amendment rights.” n23 However, 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.” n24 More recently, the Times published an article detailing the former Bush administration’s covert plans to delay Iran’s ability to develop nuclear weapons. n25 On 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. n26 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.” n27 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, n8 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.
Additional solvency/advocacy evidence is available in the release.
Answering the First Amendment/Democracy Argument
As discussed, the main Con argument is that prohibiting publication will threaten free speech/the First Amendment. As you will see in the Con essay, these link arguments are very strong, so the Pro needs to make some very strong answers.
One, as discussed above, teams can argue that democratic countries won’t survive if their security is not protected.
Two, the First Amendment doesn’t protect violations of criminal laws.
Gabriel Schonfeld, March 1, 2006, Commentary, Has the New York Times Violated the Espionage Act? https://www.commentarymagazine.com/articles/has-the-new-york-times-violated-the-espionage-act/
The courts that sent Judith Miller to prison for refusing to reveal her sources explicitly cited the holding in Branzburg v. Hayes (1972), a critical case in the realm of press freedom. In Branzburg, which involved not government secrets but narcotics, the Supreme Court ruled that “it would be frivolous to assert . . . that the First Amendment, in the interest of securing news or otherwise, confers a license on . . . the reporter to violate valid criminal laws,” and that “neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.”
Three, the First Amendment/Freedom of Speech is not absolute. This should also be used to contextualize your “national security outweighs” arguments.
Gabriel Schoenfeld, 2010, Schoenfeld is a Senior Fellow at the Hudson Institute in Washington, DC, and a resident scholar at the Witherspoon Institute in Princeton, New Jersey. Necessary Secrets: National Security, the Media, and the Rule of Law . W. W. Norton & Company. Kindle Edition, page number at end of card
OUR HISTORY, old and not so old, demonstrates that speech in the realm of foreign affairs is by no means treated by our constitutional system as a right without boundaries. In his Commentaries, Joseph Story, the preeminent nineteenth-century interpreter of the U.S. Constitution, bluntly stated that the idea that the First Amendment “was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private…is a supposition too wild to be indulged by any rational man.”35 Schoenfeld, Gabriel. Necessary Secrets: National Security, the Media, and the Rule of Law (p. 81). W. W. Norton & Company. Kindle Edition.
Four, National Security interests trump First Amendment interests
Christopher J. Markha, First Lieutenant, United States Marine Corps, International Law Studies, Naval War College, 2014, The Boston University Public Interest Law Journal, Winter, Punishing The Publishing Of Classified Materials: The Espionage Act And Wikileaks p. 22-3
The First Amendment protects the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.” n141 That principle is not absolute though, and where “there are important interests to be considered on both sides of the constitutional calculus” those interests must be “balanced” against each other. n142 For example, in Bartnicki, the Court stated that in certain instances “privacy concerns give way when balanced against the interest in publishing matters of public importance.” n143 Beyond individuals’ privacy interests, the Court has found that the First Amendment outweighs various public interests as well. n144 However, as none of those interests are considered as compelling as national security, the Espionage Act could present an instance where the scales tip in the government’s favor even when balanced against such a “profound national commitment” n145 as freedom of the press The Court has long recognized that “no governmental interest is more compelling than the security of the Nation.” n146 Specifically in the First Amendment context, the Court recently ruled in Holder v. Humanitarian Law Project that Congress’ decision to punish speech affecting “national security and foreign relations” is “entitled to deference,” even in those cases where the First Amendment requires a heightened level of scrutiny. n147 While that case did not involve freedom of the press, it still shows the Court’s willingness to curtail First Amendment protections in the national security context.
Right to Know
The Lincoln-Douglas debate resolution for NCFL is a broader, more philosophical question related to the resolution – should the public’s “right to know” outweigh the interest in protecting national security.
Con teams may articulate this “Right to Know’s argument as distinct from the First Amendment argument, and they are correct to do so to a degree – there is a First Amendment/freedom of speech/expression argument and a knowledge argument, which is a bit distinct.
Since the argument is related but also distinct, I will discuss some additional answers.
One, general arguments about the importance of protecting national security instead of rights and democracy apply to this argument, as the terminal impact is democracy.
Two, a lot of information is providence to Congress, which solves some of the impact to the right to know claim – that the public needs to know in order to check abusive executive action. As long as Congress knows, the people (theoretically) should be protected.
Gabriel Schonfeld, March 1, 2006, Commentary, Has the New York Times Violated the Espionage Act? https://www.commentarymagazine.com/articles/has-the-new-york-times-violated-the-espionage-act/
Defenders answer in kind. On more than twelve occasions, as the administration itself has pointed out, leaders of Congress from both parties have been given regularly scheduled, classified briefings about the NSA program. In addition, the program has been subject to internal executive-branch review every 45 days, and cannot continue without explicit presidential reauthorization (which as of January had been granted more than 30 times). Calling it a “domestic surveillance program” is, moreover, a misnomer: the communications being swept up are international in nature, confined to those calls or e-mails one terminus of which is abroad and at one terminus of which is believed to be an al-Qaeda operative.
Third, while the people may have a right to know, if they have decided not to know (if they want secrets to be kept), then there is really no lose of rights.
There is a right not to know, and people have decided not to know
Gabriel Schoenfeld, 2010, Schoenfeld is a Senior Fellow at the Hudson Institute in Washington, DC, and a resident scholar at the Witherspoon Institute in Princeton, New Jersey. Necessary Secrets: National Security, the Media, and the Rule of Law . W. W. Norton & Company. Kindle Edition, page number at end of card
Along with the public’s “right to know,” constantly invoked by the press, there is also something rarely spoken about let alone defended: namely the public’s right not to know. Yet when it comes to certain sensitive subjects in the realm of security, the American people have voluntarily chosen to keep themselves uninformed about what their elected government is doing in their name. The reason why they choose to keep themselves uninformed is not an enigma. It is obvious. What they know about such matters our adversaries will know as well. If we lay our secrets bare and fight the war on terrorism without the tools of intelligence, we will succumb to another attack. A late convert to this view was none other than the Times’s ombudsman himself. Having originally applauded his newspaper for publishing the SWIFT story, four months of digesting letters from outraged readers led to a change of mind: “I don’t think the article should have been published,”17 Calame now wrote in his column. Too late, the damage was done. Schoenfeld, Gabriel. Necessary Secrets: National Security, the Media, and the Rule of Law (p. 259). W. W. Norton & Company. Kindle Edition.
Quality Government Decision-Making
A third manifestation of the argument concerns “quality government decision-making.” The argument is basically this – if decision-makers have access to more information (and are subject to more criticism), then they will make better decisions. This argument applies to all government operations, but some Con teams will also use it as a way to turn terrorism – that more people accessing the information will improve security-related decision-making.
One argument that can be made against this is that government officials can’t engage in quality decision-making unless they think conversations can be kept secret
Michael Schudson, professor of Journalism, Columbia University, May 2, 2015, The Right to Know v. The Need for Secrecy, https://theconversation.com/the-right-to-know-vs-the-need-for-secrecy-the-us-experience-40948
Making government more accessible to the public is vital to improving the quality of democracy, yet this does not make transparency an ultimate good that should be honoured under all circumstances. There really are military secrets that should not fall into the hands of fanatics, practical jokers, or deranged people. There really is a need for government decision-makers to be able to trust in the confidentiality of their meetings and of their electronic communications if there is to be a free flow of conversation among them.
Defensive Arguments/Prosecuting Leakers
There are some additional defense arguments that there is evidence for and answers to in the release, but I want to cover one of the obvious ones – there could me more/greater prosecution of the leakers. Since there is no First Amendment right to leak (and government employees sign paperwork indicating they can’t leak) , a reasonable Con argument can be made that prosecution for leaks should increase.
There are a few answers to this —
(a) Arguably, this is a counterplan – increased prosecution – and PF teams shouldn’t be allowed to run counterplans (some leagues explicitly prohibit it).
(b) It’s too hard to prosecute leakers, can prosecute journalists
Gabriel Schoenfeld, 2010, Schoenfeld is a Senior Fellow at the Hudson Institute in Washington, DC, and a resident scholar at the Witherspoon Institute in Princeton, New Jersey. Necessary Secrets: National Security, the Media, and the Rule of Law . W. W. Norton & Company. Kindle Edition, page number at end of card
With the injury to our security spanning the immediate to the long-term, the case for the relentless prosecution of leakers within government is irrefutable. Yet apprehending leakers has in almost every instance proved fruitless. Given the obstacles in the way of that approach, the case for prosecuting the journalists who operate out in the open would seem to be equally or even more compelling. Schoenfeld, Gabriel. Necessary Secrets: National Security, the Media, and the Rule of Law (p. 268). W. W. Norton & Company. Kindle Edition.
Pro teams may wish to make other arguments against this and should consider it.
The Con
Framework
As noted above, there are strong arguments in defense of the Pro framework. Con teams need to counter these with a defense of liberty.
First, access to information strengthens public liberty, which not only protects freedom but also improves government decision-making, which strengthens national security.
Stephen Holmes, Walter E. Meyer Professor of Law, New York University School of Law, April 2009, The Brennan Center Jorde Symposium on Constitutional Law: In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror, California Law Review, p. 323-46
The Constitution of Public Liberty
The simplest way to expose the inadequacy of the hydraulic conception of the liberty-security relation is to focus on public liberty. According to James Madison, “[The] right of freely examining public characters and measures, and of free communication among the people thereon … has ever been justly deemed the only effectual guardian of every other right.” n49 The public liberty to examine one’s government, expose its mistakes, and throw it out of office (as opposed to private liberty from government interference) draws attention to the most important clash between the tradeoff metaphor and America’s constitutional tradition. It makes superficial sense to allege that national security can be enhanced by reducing individual privacy via warrantless wiretaps and secret searches; it makes no sense to say that national security can be enhanced, on balance and over a period of years, by ensuring that no one outside of a closed circle of like-minded political appointees knows what the executive branch is doing. A distressing characteristic of ignorance is that it is unaware of that of which it is ignorant. Shielding policymakers from informed criticism, therefore, may palpably damage national security even in the relative short run. Public liberty – meaning the examination and criticism of government by alert citizens, political journalists, and elected representatives (unusually from the party out of power) – protects not individual autonomy but collective rationality. An intellectual framework that assumes, as a matter of definition, that liberty can make no positive contribution to security is seriously misleading for this reason alone. A wily enemy will surely reap greater advantage from the arbitrary and myopic misallocation of scarce national-security assets than from the unwavering enforcement of civil liberties. Constitutions are sometimes described as instruments for dispersing power in order to prevent political authorities from violating private rights. But constitutions can be understood in other ways as well. For example, constitutional rules of succession help avoid paralyzing struggles for power when leaders unexpectedly die. Written in advance to make succession crises easier to manage, such in-case-of-emergency rules are enabling rather than disabling. The same can be said about constitutional rules that organize decision making in order to maximize the intelligence of decisions – for example, by centralizing accountability and by compelling decision makers to consider relevant counter-evidence and counterarguments. Public liberty is a constitutionally created and mandated system for responsibly weighing the expected costs and benefits of whatever security-security tradeoff is being proposed. That is public liberty’s invaluable contribution to national security. And that is also why it makes no sense to ask democratic citizens to sacrifice their public liberty in order to enhance their national security. Viewed from this perspective, the U.S. Constitution is based on three still-valid principles: all people, including politicians, are prone to error; all people, especially politicians, dislike admitting their blunders; and all people relish disclosing the miscalculations and missteps of their bureaucratic or political rivals. The Constitution attempts to put these principles into operation, roughly speaking, by assigning the power to make mistakes to one branch, and by delegating the power to correct these inevitable mistakes to the other two branches, to the public, and to the press. Its structural provisions, when combined with certain basic rights (such as freedom of political dissent), set forth a series of second-order rules, specifying the essentially collegial, not unilateral, process by which concrete decisions and first-order rules are to be made and revised. All historical changes taken into account, America’s eighteenth-century Constitution remains helpful in dealing with twenty-first century threats, n50 because its second-order rules embody a still reasonable distrust of false certainty, as well as a commitment to procedures that facilitate the correction of mistakes and the improvement of performance over time. False certainties may be more common and more damaging during emergencies than during periods of relative normality. Generally valid decision-making rules have proved feasible and advisable because human decision making displays regularities across individuals and situations. One of the most important of these regularities is the common tendency of political decision makers to interpret ambivalent evidence in a way that makes new information seem to confirm previously held beliefs. Another near-constant in human behavior is a deep-seated aversion to self-critical thinking. In a crisis as in normal times, policymakers do not enjoy listening to people who strongly disagree with them or consulting experts who think that they, the policymakers, are on the wrong track. Although subjectively annoying to the wielders of power, obligatory consultations with independent officials can nevertheless benefit the community for whom the executive is ostensibly working. Shielding government incompetence from public view may damage national security by delaying the correction of potentially lethal mistakes. As mentioned, the enemy may benefit much more from false certainty and the misallocation of scarce resources than from the extraterritorial extension of some watered-down version of due process to foreign detainees. The point, after all, is to expand the executive’s capacity for effective action. Whether the executive’s capacity for effective action is increased by oversight and legal rules, or by unfettered and unmonitored discretion, is exactly what needs to be established. That the correct answer to this question can be dictated by executive fiat defies belief. Rules that provide incentives for decision makers to consider counter-evidence and counterarguments are liberating rather than constricting. Promoters of extralegal executive discretion, in other words, have made things easy for themselves by associating rules with rigidity and discretion with flexibility, ignoring the equal plausibility of the opposite alignment. Adversarial process can increase the flexibility of collective decision making, compensating for the psychological and ideological rigidity that individuals regularly display when making decisions behind closed doors and with the blinds drawn, that is to say, in the kind of unnatural isolation fostered by a near-hysterical fear of spies and leaks. Contrariwise, assigning all power to an unchecked executive risks exposing the collectivity to one man’s, or one clique’s, peculiar cognitive rigidities, emotional hang-ups, and behavioral obstinacies. Second-order rules, governing the way first-order rules as well as policies and ad hoc decisions are made, can facilitate self-correction.
This is especially important during the wartime (and we are arguably in wartime – “war on terror”)
Emily Posner, Editor-in-Chief, Cardozo Arts and Entertainment Law Journal, 2007, The War On Speech In The War On Terror: An Examination Of The Espionage Act Applied To Modern First Amendment Doctrine, https://www.cardozoaelj.com/wp-content/uploads/2013/02/POSNER-War-on-Speech.pdf p. 731-3
Six years after the September 11th attacks, the question that Americans must ask today is, “To what degree are we willing to give up some liberties in order to fight terrorists who intend to deprive us of life?” n104 In times of crisis, there is a great risk that the government will attempt to suspend civil liberties. n105 If we allow the government to assert its executive wartime powers to limit our freedom of speech with the Espionage Act, then our civil liberties could be restricted for the duration of today’s war on terror, which has no determinable end in sight. n106 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. n109 Stone writes about wartime history to warn us about the [current administration’s tactic. n110 During World War I, President Woodrow Wilson proposed the Espionage Act and explained that disloyal individuals had sacrificed their right to civil liberties. n111 Stone suggests that Wilson’s administration as well as the courts distorted the Act to suppress a broad range of political dissent and disloyal criticism. n112 In a stark contrast to today’s political climate, the early twentieth-century Americans did not need to object strongly to relinquishing their free speech rights because they knew the Act’s effects were temporary. In the days immediately following September 11th, Americans were “more than willing to accept significant encroachments on their freedoms in order to forestall further attacks.” n113 At the time, the administration repeatedly stated that the government needed to impose new restrictions on civil liberties. Some Americans agreed. n114 But six years later, it is the responsibility of the Judiciary in our constitutional system to correct the wrongs of the legislative and executive branches, which “tend to give inadequate weight to civil liberties in wartime.” n115 But if we give up civil liberties such as freedom of speech in the war on terror, we could be doing so for our lifetime. According to Stone, “A war of indefinite duration … increases the risk that “emergency’ restrictions will become a permanent fixture of American life.” n116 The late Justice William J. Brennan warned that we need a jurisprudence that would “help guarantee that a nation fighting for its survival does not sacrifice those national values that make the fight worthwhile.” n117 First Amendment scholar Marci Hamilton adds, “It will take decades, if not centuries, to judge how much Executive power was actually warranted now” in this war on terror. n118 Numerous scholars and judges have commented on the diminution of civil liberties in wartime. Judge Richard Posner of the United States Court of Appeals, Seventh Circuit, stated, “when the country feels very safe the Justices [… ] can [… ] plume themselves on their fearless devotion to freedom of speech,” but “they are likely to change their tune when next the country feels endangered.” n119 Constitutional law scholar Lee Bollinger noted that “just about every time the country has felt seriously threatened, the First Amendment has retreated.” n120 Justice Robert Jackson wrote, “It is easy, by giving way to passion, intolerance, and suspicions in wartime, to reduce our liberties to a shadow, often in answer to exaggerated claims of security.” n121 Hamilton provides a solution to the diminution of civil liberties in today’s war on terror. She asserts that the Bush administration has the burden to tell the American people why it is taking domestic measures that restrict our civil liberties by presenting evidence that supports an imminent threat of terror to justify the restriction of rights. n122 There are instances where danger to our lives and our security exists, and the government must show that our rights are being curtailed in order to save lives. n123 The government should provide more information about the harm to its citizens before it takes away their civil liberties.
Second, Con teams should argue that secrecy cannot be treated as an absolute or it could be used to cover all government activities
FAO Schwarz, 2015, Schwartz Jr is chief counsel at the Brennan Center for Justice at NYU School of Law and was chief counsel for the US Senate’s Church Committee, 2015, Democracy in the Dark: The Seduction of Government Secrecy, Kindle edition, page number at end of card
A unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit upheld the trial court. In light of later applications of the state-secrets privilege, Judge Albert Maris’s opinion was prophetic: “[W]e regard the recognition of such a sweeping [secrecy] privilege . . . as contrary to a sound public policy. . . . It is but a small step to assert a privilege against any disclosure of records merely because they might prove embarrassing to government officials. Indeed, it requires no great flight of imagination to realize that if the Government’s contentions in these cases were affirmed, the privilege against disclosure might gradually be enlarged . . . until, as is the case in some nations today, it embraced the whole range of governmental activities. . . .” Schwarz Jr., Frederick A.O.. Democracy in the Dark: The Seduction of Government Secrecy (Kindle Locations 4306-4308). The New Press. Kindle Edition.
Third, teams should argue that is a presumption in favor of releasing information. This will help judges decide close calls.
Thomas Blanton, Director of the National Security Archive at George Washington University, ForeignPolicy.com, The World’s Right to Know, https://foreignpolicy.com/2009/11/11/the-worlds-right-to-know/
First, such statutes should begin with the presumption of openness. In other words, the state does not own the information; it belongs to the citizens. Traditionally, of course, “L’etat, c’est moi,” as France’s King Louis XIV declared. Reversing this legal claim and its legacy in official secrecy acts (which turn a blind eye to the public’s “right to know”) remains the top priority for freedom-of-information movements. Second, any exceptions to the presumption of openness should be as narrow as possible and written in statute, not subject to bureaucratic variation and the change of administrations. Reformers in Japan point to overbroad privacy exemptions as a huge obstacle, since they allow bureaucrats to withhold any personal identifier whatsoever, whether or not releasing it would invade the privacy of the person. Consequently, released documents look like Swiss cheese, with every official’s name deleted, even the prime minister’s. Third, any exceptions to release should be based on identifiable harm to specific state interests, although many statutes just recite general categories like “national security” or “foreign relations.” Most of this is common sense: It’s easy to see the harm from releasing data like the design of chemical warheads, identities of spies who could be killed if exposed, bottom-line positions in upcoming treaty negotiations, and the like. But most government secrets are far more subjective and merely time-sensitive. Former U.S. Secretary of State Lawrence Eagleburger has said most of the secrets he saw in his government career could easily be released within 10 years of their creation. Fourth, even where there is identifiable harm, the harm must outweigh the public interests served by releasing the information. No public interest is served by releasing the design of a nuclear weapon, but the policies that govern the use of nuclear weapons are at the heart of governance and public debate. The United States has even released specifics on the recruitment and payment of spies when that information was necessary in a legal prosecution (another form of public interest), such as in the trial of former Panamanian strongman Manuel Noriega. Fifth, a court, an information commissioner, an ombudsman, or other authority that is independent of the original bureaucracy holding the information should resolve any dispute over access. In New Zealand, the ombudsman can overrule agency withholdings. In Japan, a three-judge panel decides appeals. And in the United States, a federal judge recently ordered release under FOIA of energy policy records that Vice President Dick Cheney had refused to give to Congress.
Democracy
The primary problem with penalizing the publication of intelligence is that it would chill free speech and threaten democracy.
William E. Lee, Professor, Henry W. Grady College of Journalism and Mass Communication, University of Georgia, Spring 2009, American Journal of Criminal Law, Spring, Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes, p. 175-7, https://cryptome.org/0001/probing-secrets.htm
Congress has the authority to enact measures protecting the government’s secrets. n315 Restrictions aimed at government insiders, if properly crafted to avoid issues such as vagueness, do not raise constitutional questions as government employees do not have a First Amendment right to leak information obtained in the course of their employment. n316 More novel problems are presented by criminalization of the activities of outsiders, such as journalists, who solicit classified information or cultivate relationships with insiders to receive leaks. As this Article shows, the right of the press to publish confidential information is well established. There is, however, a paucity of constitutional doctrine protecting newsgathering activities that seek the leaking of confidential information. If Williams means what a fair reading suggests, Congress may punish outsiders who solicit classified information or conspire to receive leaks. The question is why Congress has yet to do so. The answer is found in the consensus in Washington that leaks to the press play an especially vital role in the democratic process. n317 Unless there is a massive realignment in our political culture, Congress will not enact something akin to the Official Secrets Act. Similarly, the anomalous prosecution of Rosen and Weissman upset a longstanding consensus that the Espionage Act is an unwieldy instrument for prosecuting leaks. Significant questions remain about Judge Ellis’s interpretation of the Espionage Act, and these questions increase the need for legislative clarification n318 but are unlikely to motivate prosecutors to attempt to apply the Espionage Act to the press. The political consensus about the importance of leaks to the press also explains why Rosen and Weissman were charged, while Bob Woodward of the Washington Post remained free to obtain and publish the government’s secrets. n319 The activities of Rosen and Weissman are constitutionally indistinguishable from those of Woodward, yet prosecutors in the case viewed the defendants as playing a less important role in society than the press. n320 Indeed, prosecutors emphasized that Rosen and Weissman were not members of the press but were “lobbyists representing for all practical purposes the interests of a foreign country.” n321 Moreover, an investigation of the activities of lobbyists is not accompanied by the same political considerations as an investigation of journalists. There is little appetite among Washington policy makers to probe the newsgathering methods of the press. If special prosecutor Patrick Fitzgerald’s actions had been subject to Department of Justice approval, his leak investigation would [*have concluded without the forced testimony of Judith Miller and other reporters. n322 The Department of Justice guidelines concerning the subpoenaing of reporters are not constitutionally mandated, but they reflect deeply held political values and preferences. n323 In an important 1974 address about press-government relations, Justice Potter Stewart said the press “may publish what it knows, and may seek to learn what it can. But this autonomy cuts both ways.” n324 As an example, Stewart noted that the Constitution “is neither a Freedom of Information Act nor an Official Secrets Act.” n325 By this, Stewart meant that policy on many issues concerning the flow of information is defined not by constitutional law but by the tug and pull of political forces. These views are also mirrored by the recent comments of Max Frankel, former executive editor of the New York Times. Frankel urged prosecutors with the authority to subpoena to the press to take a hands-off approach, that is, to carefully exercise their discretion. “Prosecutors of the realm,” he wrote, “let this back-alley market [in leaks] flourish. Attorneys general and others armed with subpoena power, please leave well enough alone. Back off. Butt out.” n326 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.
Illegal activity/corruption
An additional problem with secrecy is that it allows politicians to cover up illegal activity and corruption.
FAO “Fritz” Schwarz, March 2015, Schwartz Jr is chief counsel at the Brennan Center for Justice at NYU School of Law and was chief counsel for the US Senate’s Church Committee, 2015, .. Democracy in the Dark: The Seduction of Government Secrecy, Kindle edition, page number at end of card
The nebulous term “national security” has also been used after the fact to shield—and perhaps to justify in officials’ own minds—obviously illegal conduct. In 1973, President Richard Nixon and White House Counsel John Dean were recorded on the secret secret Oval Office taping system discussing the break-in Nixon had ordered of the Los Angeles office of the psychiatrist of Daniel Ellsberg, who had leaked the Pentagon Papers to the New York Times and the Washington Post. A worried Nixon asked what might be done if the break-in were revealed, prompting Dean to suggest, “You might put it on a national security ground basis, which it really, it was.” Later, the president took up Dean’s suggestion as if it were his own, saying “the whole thing was national security.” Dean replied, “I think we can probably get by on that.”45 The break-in itself was born of secret conversations based on a deformed view of “national security” and an acceptance of monarchial presidential powers. Eventually, some of the true believers came to see how the “banner” of “national security” had converted d their “perceived patriotism” into illegality. One reformed true believer was Egil Krogh, a young Nixon White House aide who was involved in planning the break-in. Krogh came to believe that the effort to steal information to discredit Ellsberg was a “repulsive and an inconceivable national security goal.” In his view, the words “national security” blocked critical analysis because “freedom of the President to pursue his planned course was the ultimate national security objective . . . invocation of national security stopped us from asking ‘Is this the right thing to do?’ ”46 As Krogh illustrates, small cliques developing policy in secret are particularly likely to be lured by the simplicity of slogans. “National security” is clearly a genuine priority. But the elastic—sometimes cynical— invocation of the phrase limits thought. The same is true for other pat phrases, as Justice Jackson said when he condemned the “loose and irresponsible use of adjectives . . . without fixed or ascertainable meanings”—such as “inherent,” “war,” or “emergency”—to describe presidential powers.47 Francis Biddle, another attorney general under FDR, wrote of this danger in his autobiography, explaining that the internment of Japanese Americans during World War II, which he had opposed, demonstrated “the power of suggestion which a mystic cliché like ‘military necessity’ can exercise on human beings.”48 Schwarz Jr., Frederick A.O.. Democracy in the Dark: The Seduction of Government Secrecy (Kindle Locations 2612-2618). The New Press. Kindle Edition.
Human Rights
Punishing the disclosure of classified material would make it more difficult to disclosure government torture and other human rights abuses
Dana Priest, journalist, William Arkin, journalist, 2011, Top Secret America: The Rise of the New American Security State, Kindle edition, page number at end of card
Maryland senator Benjamin Cardin—whose state is home to the National Security Agency, the nation’s eavesdroppers—introduced a bill in 2011 making it a felony to disclose classified information to an unauthorized person. This legislation expands considerably the current law that makes it illegal to disclose information on nuclear codes, cryptography, electronic intercepts, nuclear weapons designs, and the identities of covert agents. But most important, it places even greater power into the hands of the executive branch to just declare something classified rather than to have to demonstrate that harm would be done if the information were to be made public. Had Cardin’s law been on the books shortly after 9/11, newspapers would have had a much harder time publishing stories about the CIA’s covert prisons and waterboarding and other harsh treatment of detainees. Journalists may have been kept from revealing that many of the captives held at the military prison in Guantánamo Bay, Cuba, turned out not to be terrorists at all; that U.S. Army soldiers were abusing Iraqi prisoners at the Abu Ghraib prison; that the National Security Agency was collecting communications of people living in the United States without the required permission; and even that in 2011 Pakistan had rounded up men in their country they believed had helped U.S. authorities find Osama bin Laden. Priest, Dana. Top Secret America: The Rise of the New American Security State (p. xxiv). Little, Brown and Company. Kindle Edition.