Lawfare Archive: 'National Security, Leaks and Freedom of the Press'

Summary

The Lawfare Podcast: National Security, Leaks, and Freedom of the Press

Episode: Lawfare Archive: 'National Security, Leaks and Freedom of the Press'
Release Date: March 29, 2025
Host: The Lawfare Institute
Guests: Jack Goldsmith, Lee Bollinger, Geoffrey Stone, Jeffrey Goldberg

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Introduction

In this episode of the Lawfare Podcast, host Jack Goldsmith engages in an in-depth discussion with Lee Bollinger and Geoffrey Stone about their book National Security Leaks and Freedom of the Press: The Pentagon Papers 50 Years On. The conversation delves into the enduring legacy of the Pentagon Papers case, the challenges of leaks in the digital age, and the evolving relationship between national security, the press, and legal frameworks.

---

Overview of the Book and Its Structure

Timestamp [02:56] – [07:21]

Jack Goldsmith introduces the guests and the central theme of their book, highlighting the historical context of the Pentagon Papers case and its implications for modern-day leaks. The book is structured to include:

• An introduction and conclusion by Lee Bollinger and Geoffrey Stone.
• A legal memorandum summarizing the state of the law.
• Essays from national security experts, journalists, and legal scholars.
• A commission report with contributions from figures like Eric Holder and John Brennan, discussing key takeaways and recommendations.

Notable Quote:
Geoffrey Stone [03:53]: "We brought together a group of experts from different perspectives... to examine the state of affairs that currently exists and how we got to this point in the 50 years that have passed since the Pentagon Papers decision."

---

The Pentagon Papers Case: A Historical Recap

Timestamp [07:06] – [17:19]

The discussion provides a concise summary of the Pentagon Papers case, where classified documents detailing the Vietnam War were leaked to the press. The Supreme Court's 6-3 decision affirmed that prior restraint—preventing publication before it occurs—is unconstitutional under the First Amendment, even if the information was obtained illegally.

Notable Quotes:
Jeffrey Goldberg [10:05]: "It is unconstitutional under the First Amendment to enjoin the press from publishing."
Geoffrey Stone [09:52]: Emphasizes the complexity and the government's brief window to respond to the publication.

The guests explore the doctrine of no prior restraints, its origins, and its application in the case, highlighting the Court's reluctance to allow the government to prevent publication without clear evidence of harm.

---

Modern Challenges: Digital Era and Expanded Press

Timestamp [17:19] – [32:31]

As the conversation shifts to the present, the panelists discuss the transformation of the press and national security in the digital age. The rise of digital platforms like WikiLeaks has diversified the sources of leaks, making it harder to control and classify information. The expansion of classified information and the growth of the secrecy bureaucracy pose significant challenges.

Notable Quote:
Jack Goldsmith [30:31]: "It seems to me that the Pentagon paper's norm... has grown into basically that... the New York Times and Washington Post... can basically... they don't think the government was going to go after them."

Geoffrey Stone points out the increased complexity due to the vast number of private contractors and digital dissemination, emphasizing that while responsible outlets may self-regulate, less scrupulous platforms contribute to the leakage of sensitive information.

---

Recommendations from the Commission Report

Timestamp [44:56] – [52:35]

Goldsmith introduces the commission report's key recommendations aimed at improving the balance between national security and press freedom:

1. Defining the Press Statutorily:
   The commission suggests legislating a definition of the press to grant specific protections to trusted journalistic institutions while excluding less reputable sources.

   Notable Quote:
   Geoffrey Stone [44:59]: "Pass laws that identify from a statutory standpoint who the press is... giving special dispensations to leakers who give information to those entities we have at least a reasonable degree of trust in."

2. Enhanced Internal Oversight:
   Implementing better procedures within national security agencies for employees to raise concerns about the classification and potential declassification of information. This includes creating entities that allow for anonymous whistleblowing to ensure that overclassification and secrecy are mitigated.

3. Handling of Leakers:
   The recommendation calls for a nuanced approach to dealing with leakers, suggesting that responses should vary based on the nature and impact of the leak, rather than adopting a one-size-fits-all punitive approach.

4. Press and Leaker Interaction:
   Establishing clear boundaries where the press does not facilitate or encourage leaks, preventing journalists from crossing into criminal behavior by soliciting classified information irresponsibly.

---

Current Press Practices and Future Outlook

Timestamp [32:31] – [57:34]

The panel examines how contemporary leaks, such as those by Chelsea Manning and Edward Snowden, have tested the principles established by the Pentagon Papers. They discuss whether the press today is overconfident in its ability to handle classified information responsibly and whether the existing legal protections are sufficient in the face of new media dynamics.

Notable Quotes:
Jeffrey Goldberg [33:03]: "The media now feels much more confident about publishing classified information in terms of legal risk."
Jack Goldsmith [41:11]: "The press is overconfident about its ability to judge... the government is overconfident about the importance of the secrets, and maybe that's why the system works decently well."

Despite recognizing that the current system has maintained a balance thus far, the guests express concerns about its sustainability given the exponential growth of information dissemination channels and the increasing complexity of national security operations.

---

Conclusion and Final Thoughts

Timestamp [57:34] – End

In closing, the panel reflects on whether the Pentagon Papers regime can endure amid evolving challenges. Geoffrey Stone remains cautiously optimistic, noting that while significant changes have occurred, the system has not yet faced a crisis requiring its fundamental rethinking. However, the complexity and potential for future leaks necessitate ongoing evaluation and adjustment.

Notable Quotes:
Geoffrey Stone [54:08]: "The Supreme Court has been reluctant to define who the press is for purposes of the First Amendment... it's a hugely important question."
Jeffrey Goldberg [56:15]: "It would be a pity to abandon the Pentagon Papers approach... despite the complexities and tensions involved."

The conversation underscores the delicate balance between safeguarding national security and upholding press freedom, emphasizing the need for continuous dialogue and policy refinement to navigate the challenges of leaks in a digital and highly interconnected world.

---

Key Takeaways

• Pentagon Papers Legacy: The Supreme Court's decision remains a cornerstone for press freedom, emphasizing no prior restraint and setting a precedent for handling national security leaks.

• Digital Era Challenges: The proliferation of digital platforms and private contractors has complicated the landscape, increasing the potential for widespread and uncontrolled leaks.

• Commission Recommendations: Proposals include defining the press legally, enhancing internal oversight within national security agencies, adopting nuanced approaches to handling leakers, and clarifying the boundaries between journalists and leak facilitators.

• Press Confidence vs. Responsibility: While mainstream media outlets have become more confident in their ability to handle leaks responsibly, the rise of less regulated platforms poses significant risks to national security.

• Ongoing Balance: Maintaining the equilibrium between national security and freedom of the press requires continuous adaptation to technological advancements and evolving media practices.

---

This comprehensive discussion highlights the enduring tension between transparency and secrecy, the evolving dynamics of the press, and the imperative to protect national security in an increasingly digital and complex environment.

Transcript

[Lawfare Podcast Host]

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[Caroline Cornett]

I'm Caroline Cornett, intern at Lawfair, with an episode from the Lawfare archive for March 29, 2025. Earlier this week, the Atlantic published texts from top Trump administration officials discussing plans to attack the Houthis in Yemen that were sent in a signal chat to which the Atlantic's editor in chief, Jeffrey Goldberg was mistakenly added. While many top Democrats have criticized the national security breach and called for those involved to resign, the Trump administration has attacked Goldberg and accused the press of sensationalizing the story. For today's Archive episode, I selected an episode from April 22, 2021, in which Jack Goldsmith sat down with Lee Bollinger and Geoffrey Stone to discuss their new book, National Security Leaks and Freedom of the The Pentagon Papers 50 years on. They discussed the holding and legacy of the Pentagon Papers case, as well as some of the many challenges of applying the Pentagon Papers regiment in the modern digital era that is characterized by massive leaks in a very different press landscape than the one that prevailed in 1971.

[Jack Goldsmith]

I'm Jack Goldsmith and this is the Lawfare Podcast. April 20, 2021 I sat down with Lee Bollinger, the president of Columbia University, and Jeffrey Stone, the Edward H. Levy Distinguished Service professor at the University of Chicago Law School, to discuss their new book, National Security Leaks and Freedom of the the Pentagon Papers 50 years on. We discussed the holding and legacy of the Pentagon Papers case, as well as some of the many challenges of applying the Pentagon Papers regime in the modern digital era that is characterized by massive leaks in a very different press landscape than the one that prevailed in 1971. It's the Lawfare podcast, April 20, National Security Leaks and freedom of the Press. Thanks for joining me, Lee And Jeff, can you just start off by telling us what the book's out? It's kind of an unusual collection.

[Geoffrey Stone]

Well, the basic idea was to bring together a group of experts from different perspectives, including from the national security world, from the world of journalism and. And from legal scholarship, to examine the state of affairs that currently exists and how we got to this point in the 50 years that have passed since the Pentagon paper's decision. And the book includes an introduction and a conclusion written by Lee and me, a report that was prepared to summarize at the outset the state of the law with respect to these issues. Then a series of essays by, as I said, a broad range of national security experts, journalists, and legal scholars, and then a commission report in which seven of us, including Eric Holder and John Brennan, sat down and discussed among ourselves what is the takeaway, what recommendations we as a group would have. And that's another part of the book. So that's the basic structure. Lead giving the dad.

[Lee Bollinger]

Yeah.

[Jeffrey Goldberg]

So Jeff and I had done a book a couple of years ago called.

[Lee Bollinger]

The Free Speech Century.

[Jeffrey Goldberg]

And in that book, which is also.

[Lee Bollinger]

A collection of essays with a dialogue.

[Jeffrey Goldberg]

That Jeff and I do at the beginning and the end, that was to mark the 100th anniversary of the first cases in the Supreme Court on interpreting the First Amendment. So most people don't realize this, but.

[Lee Bollinger]

There were no Supreme Court cases.

[Jeffrey Goldberg]

Same with free speech, free press, mean under the First Amendment until 1919. So this book marked that the free speech century. Then, you know, we took this very, very significant part of that jurisprudence, Pentagon Papers regime, which is more than just the Pentagon Papers, and wanted to try to focus on this particular issue. Circumstances have changed.

[Lee Bollinger]

Have they changed enough to change the result?

[Jeffrey Goldberg]

That's a question will talk about here. But the idea was to take a major part of this jurisprudence and then really focus on that.

[Lee Bollinger]

The structure of the book was interesting.

[Jeffrey Goldberg]

It sort of evolved in the ways in which Jeff and I have collaborated.

[Lee Bollinger]

And as you said, Jack, there was.

[Jeffrey Goldberg]

A mixture of different approaches. So you have your essays, but you have essays from different points of view that I think brings a kind of.

[Lee Bollinger]

Strength of voice to it, no matter.

[Jeffrey Goldberg]

How much a single author tries to.

[Lee Bollinger]

Incorporate other perspectives, very, very hard to.

[Jeffrey Goldberg]

Get the real conviction that people have from those points of view. A legal memorandum in the sense that outlines this. So if you want to know what the cases are and what the conventional in the most positive sense, analysis is that provides it. And then a group of people who.

[Lee Bollinger]

Come together and really try to look.

[Jeffrey Goldberg]

At all this and the perspectives and make recommendations, and they also are from different perspectives. And then Jeff and I offer what. What we think about this overall. I think the strength of the book is. Takes a real current major problem and.

[Lee Bollinger]

Really describes how hard it is. It's just a very, very, very perplexing problem, both at the constitutional level, the.

[Jeffrey Goldberg]

Policy level, the press level.

[Lee Bollinger]

So those are the motivations behind the.

[Jeffrey Goldberg]

Structure of the book and what it is.

[Jack Goldsmith]

Okay, I want to talk about what those problems are, and I want us to dive into the Pentagon Papers regime. But I just want to underscore what you said about the strength of voice in the book you described. In general terms, having authors in these different fields from the academy, from civil society, from journalism, and from the government. But I just want to underscore that you have every heavy hitter I can think of that I would want to hear from. On the government side, the current Director of National Intelligence, Avril Haines has an essay. The deputy Attorney General to be Lisa Monaco, other former. I'm not going to be able to list everyone, former senior officials like Keith Alexander and Michael Morell. On the academic side, you have Cass Sunstein, Louis Seidman, David Strauss, among many others. You have prominent journalists like David Sanger and Ellen Nakashima who are national security reporters. And you have prominent people from civil society as well. So it's an extraordinary range of voices. And the collection of essays are very high quality. So I wanted to compliment you on that. So let's start off for a general audience and talk about. Just remind us what the Pentagon Papers was. As you said, Lee, the Pentagon Papers regime is more than the case. But let's. Can we start off with the case?

[Lee Bollinger]

Sure.

[Jeffrey Goldberg]

So, you know, it can take quite a while. I'll just give a very brief summary. Jeff can of course, add. But this is 1971, and it's a volume, large volume of history that has been commissioned by Robert McNamara to look at the origins how we got into the Vietnam War. And a person who is working as a contractor with the US Government, working for the US Government decides that this document, the Pentagon Paper, should be made public and hands it over to the New York Times and the Washington Post, which go through this, decide that it's important for them to publish certain parts that the American public needs to know about this. The government comes into court asking for an injunction to stop publication on the grounds that this would Harm national security goes very quickly to the Supreme Court. And there are a whole mix of.

[Lee Bollinger]

Opinions very hard to piece together, sort.

[Jeffrey Goldberg]

Of what the overall holding is. But the essential outcome is a decision.

[Lee Bollinger]

By a majority of the Supreme Court.

[Jeffrey Goldberg]

That it is unconstitutional under the First Amendment to enjoin the press from publishing.

[Lee Bollinger]

Classified information even though it has been.

[Jeffrey Goldberg]

Illegally taken from the government and handed over to the press, with the press knowing that it has been illegally taken, constitutionally protected, absent some very, very significant evidence by the government that this will cause grave and irreparable harm to publish.

[Lee Bollinger]

There are surrounding cases that make up.

[Jeffrey Goldberg]

The overall Pentagon Papers regime, as I've called it. We've called it the classic problem of every democratic society.

[Lee Bollinger]

The government needs to operate in secret.

[Jeffrey Goldberg]

To some extent, has a deep problem of over classifying.

[Lee Bollinger]

How do you get information to the.

[Jeffrey Goldberg]

Public that the public needs, that the government does not need to keep secret?

[Lee Bollinger]

And to what extent should leakers be protected in having that information available?

[Jeffrey Goldberg]

And to what extent should the press.

[Lee Bollinger]

If it gets hold of that information.

[Jeffrey Goldberg]

Be free to publish?

[Lee Bollinger]

And to what extent should there be a constitutional right apart from that, or.

[Jeffrey Goldberg]

In substitution for any of those rights.

[Lee Bollinger]

To just go to court and to force the government to hand over information that after an evaluation of the balance.

[Jeffrey Goldberg]

Of interest, a judge would find that it should be made public or not?

[Lee Bollinger]

The solution to the problem that the.

[Jeffrey Goldberg]

United States came up with, the Supreme Court came up with in Pentagon Papers and surrounding cases, is very unique. And you just wouldn't predict. It's not something you would logically come up with exactly.

[Lee Bollinger]

That is, there is no constitutional right to get the information in the first.

[Jeffrey Goldberg]

Place, just to go to court and demand that the court evaluate the benefits and costs of revealing information leakers. So the government has the right to keep secrets fully.

[Lee Bollinger]

Leakers who hand over the information to.

[Jeffrey Goldberg]

The press have no constitutional protection in doing that, even though the benefits of.

[Lee Bollinger]

Publication may outweigh the harms.

[Jeffrey Goldberg]

And the press, if it does not participate. This is an open question in the kind of purloining of the documents, but still knowingly realizes that it was taken illegally, is free to publish against an injunction. But there are many open questions like once they publish, can they then be prosecuted? So that's the summary I would give very quickly, Jeff.

[Geoffrey Stone]

I would just add a couple of observations about the case for those who weren't around then or weren't paying attention then. One of them is that it was an enormously important public case. That is partly because it was involved. The New York Times and the Washington Post and the Vietnam War. Everyone was aware of the case and it was all over the news, and everyone knew what was. What was going on. So in that sense, it was very unique in terms of the Supreme Court making such a decision. Second observation I'd make is that the decision was a 6 to 3 decision, and the three dissenters made what is a very logical argument, which is that the Department of Defense was not paying any attention to this document, which had been written four years earlier under the directions of Robert McNamara. And they didn't know what was in the document. They hadn't been paying any attention to it. The Times had taken several months to review the document before deciding which parts of it it should publish and which parts it should not publish. The government only had literally a few days to respond to this. And part of what the dissenters argue is that, look, let's give the government some time to review this 7,000 page document, which presumably nobody's looked at in four years, to make the case that the publication of some of this information might well pose a clear and present danger to the government. And the majority justices basically took the view, nope, if you can't demonstrate it, you cannot enjoin it, period. And that was a pretty remarkable thing about the case. And whether that was because they trusted the New York Times and the Washington Post, or whether it was because they just said if they want to publish it, they have the freedom to do it, maybe, maybe not. There could be a criminal prosecution later, but you can't enjoy it. And to me, one of the most intriguing aspects of it was that the government did not actually have a reasonable opportunity to review the document carefully, examine the potential national security implications and make the case to the court about what those dangers might be. And the majority justices said, if you can't prove it now, you cannot join it, you lose.

[Jack Goldsmith]

Is that because of the kind of extraordinary power of the rule of no prior restraint? Is that the reason that they said that?

[Geoffrey Stone]

I think yes. I mean, had the Times published the information and then been prosecuted after the fact, which indeed it wasn't, by the way, then the government would have time necessarily to have made the case for this. So I think it is because of the very strong presumption against prior restraints that the majority justices says, you cannot prevent them from publishing it. But in addition to the ironies that Lee mentioned, the other is that the New York Times had spent literally several months looking at this, and all of a sudden they say, we cannot be delayed for a moment. And the justices say, Right, Go for it, Jack.

[Jeffrey Goldberg]

I think it's one of the deep, deep complex puzzles of this area that.

[Lee Bollinger]

There is this, as you noted and.

[Jeffrey Goldberg]

Jeff just noted, this doctrine of no prior restraints. And it's impossible to explain this in a brief podcast. It's just important to know that the.

[Lee Bollinger]

Supreme Court jurisprudence, beginning in the 1930s.

[Jeffrey Goldberg]

But dating back to really the origins of the First Amendment, had this notion that any kind of effort by the government to stop publication before publication was really just unacceptable. And so the doctrine of no prior restraints was developed, it particularly applied and.

[Lee Bollinger]

Began with the notion of licensing.

[Jeffrey Goldberg]

And one can understand why licensing books and newspapers and so on is problematic. That's what the no prior restraints doctrine was, was born in.

[Lee Bollinger]

But then it was extended in the 1930s, as we all know, to injunctions.

[Jeffrey Goldberg]

By a court that would stop publication. A lot of complex analysis around whether that's a fair extension of the no licensing, but that's what was at stake in Pentagon Papers. The thing to note, I think, is.

[Lee Bollinger]

That the more you think about Pentagon Papers as a no prior restraints problem.

[Jeffrey Goldberg]

The more that opens up the idea that the Pentagon Papers case holding does.

[Lee Bollinger]

Not really apply in the context of.

[Jeffrey Goldberg]

A so called subsequent punishment where the government prosecutes the publisher after the publication for publishing classified information. But the more you have that open, the less sort of willing the press is to publish. Because any rational editor is going to think I'm great with being free of any kind of injunction, but I really do not want to end up being prosecuted after the fact for this, so let's not publish. So that's a dilemma in how you interpret the case as a real prior restraints case, and that's all or as much more than that.

[Jack Goldsmith]

Let me press you about that very question, Jeff. I think you and I have disagreed, at least by email, about whether criminal prosecution is allowed of the press after the fact. Can you just explain, because I read the Pentagon Papers cases just about prior restraint. I think that, you know, it's hard to add up the votes, but they didn't obviously forbid criminal prosecution and they probably didn't forget forbid criminal prosecution. But I, I know that you have a somewhat different view on that. Can you just explain what the issue is in a little more depth?

[Geoffrey Stone]

Well, I, I, I agree with you that the court, or at least some of the opinions in the majority, because I think every justice wrote an opinion of the case, so it's hard to figure out what the majority view is. But I think that the justices in the majority, or at least enough of them to suggest that there weren't five to the contrary, did emphasize clearly the prior restraint element of the case and did not explicitly address the question of when would a criminal prosecution after the fact be permissible. On the other hand, and the Supreme Court has not had an occasion, interestingly, to revisit that question in the years since the Pentagon Papers case. So in 50 years, they haven't had a case that required them to address that question in the particular context of the publication of classified information of this sort. But my own view is that the Court has come across the general perspective of First Amendment to accept the proposition that the standard that applies when the government attempts to criminally punish the publication or the speaking of ideas or information is clear and present danger of serious harm. And that's true regardless of whether we're talking about the Pentagon Papers or whether we're talking about somebody who's giving a speech that causes others to engage in violence or whatever. And in fact, the Court has never upheld a conviction since the Pentagon Papers applying that standard. There has not been a single case in which the Court has said there is a clear and present danger of grave harm, and therefore this speech can be prohibited. So although I agree with you that the Pentagon Papers case does not explicitly resolve the question of what standard would apply, I think it's pretty clear now that the clear and present danger test would apply today if this was a prosecution after the fact, and the government would have to demonstrate that the publication of the information did create such a harm. Now, since the court has never actually had to apply that test in a way that leads it to uphold a conviction, we don't know, in fact, what clear or present or grave means those phrases have been, over the century of free speech jurisprudence have been interpreted in very different ways. So it's possible the Court would uphold the conviction of the New York Times if they were prosecuted a year after the publication of the Pentagon Papers, if the government could demonstrate that the publication of that information had in fact produced a serious harm to American international relations or the ability to fight the war in Vietnam effectively. But the truth is, we don't know what those phrases actually mean, because the Court has never found the existence of a clear and present danger in the half century since the Pentagon Paper states.

[Jeffrey Goldberg]

I would add, Jack, that if you look. If you look at this from a kind of systemic approach, has this worked? And why has it. Why may it have worked? What is behind that? Part of what one can say is this is just a thesis, is that.

[Lee Bollinger]

The ambiguity on the question has played.

[Jeffrey Goldberg]

An important role that the ambiguity on.

[Lee Bollinger]

Can there be a subsequent punishment?

[Jeffrey Goldberg]

So what we know is that we're trying to achieve this incredibly difficult balance of protecting the government's right to operate in secret, which we absolutely need, with the need of the public to know.

[Lee Bollinger]

What the government is doing.

[Jeffrey Goldberg]

And we know that in this world, the government frequently over classifies, uses secrecy way too much and sometimes abuses its power. So there's a tension there, a balance.

[Lee Bollinger]

That'S needed and the like.

[Jeffrey Goldberg]

And you can follow an approach like Britain and just say, well, that's a problem.

[Lee Bollinger]

It's up to the voters to vote.

[Jeffrey Goldberg]

Out elected officials and governments that they think have been too secret.

[Lee Bollinger]

The press should not have any public role in this.

[Jeffrey Goldberg]

Press is fine, but we shouldn't elevate it to semi governmental status of informing the public.

[Lee Bollinger]

So we've taken this different approach.

[Jeffrey Goldberg]

And part of that approach is the government can't enjoin, but we leave open the question of a subsequent punishment. And as the editors are thinking about what it is they should publish, can publish, et cetera, that will play into their minds that ambiguity. And along with several other ambiguities like are leakers protected at all, et cetera, we end up with a system that one might say has worked. That is, it's always hard to know what the world would have been like with a different system. But Jeff and I think the consensus is that this unique kind of way of approaching this problem in America, with all its ambiguities, has produced cases or a history in which information that the public needed to know was out and.

[Lee Bollinger]

The government was still able to operate in secrecy.

[Jeffrey Goldberg]

So you can look at it not just as what did the court hold and would it hold? But how have we benefited from the ambiguities in the system that Pentagon Papers and other cases set up?

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[Jack Goldsmith]

So I, I agree with that conclusion. Maybe not for the same reasons. And I think it's especially obvious in the 50 years since the Pentagon Papers and especially in the 20 years since 911 that I would go further. I don't think that there's, there may be legal ambiguity whether Jeff is right or not about these other developments and, and the possibility there being a very high bar for ex post criminal prosecution. It seems to me that after the Chelsea manning leaks, the WikiLeaks and especially after Snowden and the non prosecution of the press in light of that, and then the just massive continual publication by all sorts of outlets of very sensitive classified information on a scale I think we haven't seen before, including of surveillance related information that might be somewhat easier to prosecute than other forms of information. It seems to me that the Pentagon paper's norm, or whatever you want to call it, whether it's related cases, it's grown into basically that at least and we'll talk about the Julian Assange case, but at least for the New York Times and Washington Post of the world, that they can basically, I think that, I think they're more emboldened than you suggested, Lee. And I quote in my essay, I quote David McCraw who he said something slightly different later, but in a panel I was on with him, he said basically, and I'm paraphrasing, I can quote it if you like, but he said basically after the Manning leaks and the Snowden leaks, we just became more emboldened and we just, especially compared to the 1971 baseline, but also against the 2001 baseline of what the legal expectations were, they just didn't think the government was going to go after them. Isn't that a fair description of and isn't there either a very powerful norm or isn't it almost inconceivable, given what we've been through, that the government would actually prosecute the press ex post for a leak of classified information, at least at the scale of Snowden or Manning? I mean maybe if something was even more threatening to national security, but those, you know, the Snowden leaks were pretty consequential. So what do y'all think about that?

[Geoffrey Stone]

My sense is that the press does have a high degree of confidence at the moment that it would not be prosecuted. And part of the reason for that, I suspect, is that Such a prosecution of an entity like the Times or the Post, at least, would be seen as so politically controversial and threatening to the nation's commitment to freedom of the press that they think they believe that government would be extraordinarily reluctant to put itself in that position, barring the most extreme type of situation. And I also think that as long as we're talking about entities like the Times and the Post, they are pretty responsible. Several of the essays in the book, including one, for example, by Ellen Nakashima, talks about how the Post did deal with these issues and addressed with even government officials what the dangers were of publishing certain information, and in their view at least, were very responsible in not going beyond what they published and exercise discretion not to publish things that really could seriously damage the national security. Now, people can disagree, of course, about how much harm was inflicted here, but I think if we're talking about the Times and the Post, they've demonstrated for the most part that they are serious about not wanting to hurt the nation, and therefore they do take that responsibility seriously. Part of the problem we have now, of course, is that the Times in the Post are certainly not the only means of publication or communication that is available. And now we have things like WikiLeaks and everybody who's access to the Internet. And so the problem today is that the reality is we're not limited to only reasonably responsible, thoughtful and careful parts of the press. And that means we are going to see, as we go forward, in all likelihood ever greater, less responsible publications of that information. And that's one of the issues that the book tries to sort out.

[Jeffrey Goldberg]

So, I mean, this starts to go to the heart of where we are now compared to where we were at.

[Lee Bollinger]

The time of Pentagon Papers?

[Jeffrey Goldberg]

And so, yeah, you asked the question. One asked the question, did Pentagon Papers come out the way it did? Because the main or exclusive publishers of classified information at that point were very responsible people, institutions operating by a culture of norms of objectivity and responsibility and.

[Lee Bollinger]

Patriotism and the like.

[Jeffrey Goldberg]

And I'm referring to the Times and the Post, and we could live with.

[Lee Bollinger]

A world in which the Constitution protected.

[Jeffrey Goldberg]

Them against prior restraint, certainly, and perhaps against subsequent punishments. Have we moved to a world in which the press, even that responsible part of the press, let's call it, feels.

[Lee Bollinger]

Too powerful, too willing to publish, which.

[Jeffrey Goldberg]

I think, Jack, your comments are heading towards that they may just have too much arrogance about this. And that's one question. Another is the one Jeff just raised and you've raised. Are there too many potential publishers now that go across the spectrum of responsibility.

[Lee Bollinger]

So that's a big question. Then the other side is has the.

[Jeffrey Goldberg]

Government become much more secret? And there are all these points made.

[Lee Bollinger]

In the essays about over classification, increasing.

[Jeffrey Goldberg]

The amount of classification itself going way, way up since 9, 11, et cetera. So our problem is both from a constitutional standpoint, legal reasoning standpoint, but a practical standpoint of how the world works. Have the kind of conditions changed so much on either side of this that we need a new system? The really interesting part of working on this book to me is that all of that, all of the writers from.

[Lee Bollinger]

Every perspective were very sensitive to these questions of changing conditions.

[Jeffrey Goldberg]

And yet I think it's fair to say that nobody is prepared at this point to say circumstances have changed so much.

[Lee Bollinger]

I'm so convinced that we should set.

[Jeffrey Goldberg]

Aside the Pentagon Papers regime and come up with a new one.

[Jack Goldsmith]

Yeah, I agree with that. I didn't mean to imply that the press was arrogant. I just meant to say that The Pentagon Papers 50 years later is not just about prior restraints. I mean the regime now is that they feel much more confident about publishing classified information in terms of legal risk. I'd also say that the fact that there are all these other outlets. So first of all, I think the mainstream press feels emboldened in the sense that they've been publishing more and more classified information. It's more and more sensitive. I agree and I've seen it done that they take seriously their responsibilities to assess the harm. They make their own judgment. Maybe we shouldn't trust their judgment, but that's their call as to what to publish. And they often don't publish things that they think would harm the national interest. On the other hand, I know from talking to journalists and editors that given their competition from these other sites like WikiLeaks and the like, that they feel like if the information's come, there's extra pressure and extra incentive to publish. Because it used to be that at the times when the Post didn't publish it, it wouldn't be published. But now that's no longer the case. So there's extra incentive in addition to the lack less legal constraint for them to publish. But I also agree with you, on the other hand, and I'm here, I'm with Justice Stewart, that at the very heart of the problem is government secrecy and over classification. And as you note, as all of the essays note, and as you note in the commission report, you alluded to some of the differences since the Pentagon Papers, there's been the digitalization of secrets there's the Internet, which spreads them quickly, and it's very difficult to control. There is the massive growth in the secrecy bureaucracy in the government, a lot of it in the private sector, which is where a lot of the leaks come from. We're in endless war with 20 years of war with all of the kind of institutionalized secrecy that that brings. So there's just been such a huge and massive growth on the secrecy side that, you know, that's invariably going to lead to more leaks. But I also think that the press is reporting more of that. I actually am with you that I think our system, as strange as it is with basically giving the press freedom to publish, but saying that the leakers don't have protection and there's no constitutional access to the information, I actually think it works pretty well. And it's remarkable how many senior national security officials in the essays, they don't really question that. I mean, they're more sensitive to the need for transparency than I think they were would have been 20 years ago. So that's a whole bunch of comments, if y'all have any reactions to that.

[Geoffrey Stone]

Well, I mean, I. I think. I think those comments are all correct. And of course, one of the things that we don't know is what hasn't been disclosed. In other words, although a lot of information has been disclosed, it's probably a very tiny percentage of the actual information that is secret. And people who are inside the national security world do understand that there's a lot of stuff going on that has not been disclosed, and that if it were disclosed, might create a lot of controversy about the various policies and practices that the national security community is pursuing. You know, one of the interesting sides here is that on the one hand, it looks like a lot has been disclosed, but on the other hand, they understand that as people inside that world understand that it's probably just a very, very tiny fraction of what could theoretically be exposed and which would be problematic for the national security community, not only in terms of the national security, but also in terms of embarrassment and, and legality and questions about judgment. So I think their support of the current system is based partly on the fact that they know how much has not been exposed and that if it was exposed, might be very problematic for the performance of the national security world.

[Jeffrey Goldberg]

So I think, like Jeff, I agree, Jack, with your comments and assessment of things, and Jeff is noting the problem of lots of things that in an ideal world of First Amendment would be public because the public would need to know them in order to exercise appropriate Self government. I think there's also, in addition to that, I think there is also reflected in the essays from the national security people a sense that the security interests.

[Lee Bollinger]

Of the legitimate security interests of the.

[Jeffrey Goldberg]

Government are underappreciated by the press and by broader public and not clear how deep that goes in the public mind. But there certainly comes through in these essays and certainly in your own essay, Jack, a sense that we think is really important to continue Pentagon Papers we understand the check on the government that the press plays. We're with you on the need of the public to know what the government is doing. And yes, there's too much over classification.

[Lee Bollinger]

But there are serious things that have been leaked and caused major problems.

[Jeffrey Goldberg]

And we are not going to stand by and just say everything that is published is good, the system has worked perfectly and the like. So I think there is on the national security side, a kind of warning about the seriousness of this. I think from the journalist perspective in.

[Lee Bollinger]

The essays and the journalists, we all.

[Jeffrey Goldberg]

Know there is a greater confidence in the professional journalistic community in the process of getting information and making sound and responsible judgments about what is ultimately published. So I think those come through very strongly, those different perspectives in the essays.

[Jack Goldsmith]

They do. My experience is, for what it's worth, that the press is overconfident about its ability to judge and that the government is overconfident about the importance of the secrets, and maybe that's why the system works decently well. Jeff, I wonder if you care to comment on. So you were someone who, one of the leading First Amendment scholars in the country, and you kind of dove into the world of classified information when you were on the President's Review Group. And I'm wondering how, if so you saw kind of inside how things worked, and you had a lot of access to secrets and to how the government was operating. And y'all wrote you and. And the other people on that group wrote a, you know, very balanced report, but I'm wondering how that if at all influenced your view of these issues.

[Geoffrey Stone]

Well, it was a fascinating experience, and I learned a lot about things I knew nothing about. I was the person of the five members in the group who probably had the least, clearly had the least experience with the inside of the national security world. When President Obama appointed that review group, which was appointed to review in particular, the consequences of the Snowden revelations and beyond. I guess I would say that the thing that most impressed me, frankly, and almost all of our attention was focused on the nsa, although we did have interactions with the FBI and CIA and others was that I was impressed with the nsa. I came into this knowing really next to nothing about it that any layperson wouldn't know. And I came away with the sense that they were quite serious about their responsibilities, that they were pretty thoughtful about it. They may at times have made judgments different from the ones that I would have made with respect to the importance for confidentiality of certain particular information, denying the public the opportunity to get to know it. But basically I found them very impressive and they were very professional and they were not cops. Their basic mentality was sort of into the tech side of things. So I found that very encouraging and very impressive. I do think some of the problems I came away from it appreciating was first the lack of real oversight of what these agencies are able to do. I mean, there is pro forma congressional oversight of their activities, but it's not very sophisticated and it's not very effective. And so one of the problems I think that should be addressed is that there should be much greater inside government evaluation, not only by the agencies themselves, but by members of Congress or by separate organizations that are created inside the government to review these things on a regular basis. Because I think that is one of the problems when you are the one involved in doing the. The investigations. You do tend to err on the side of the investigation rather than the constraint. And I think there's not enough internal evaluation of that. That's certainly lacking. But I did come away with a much more positive view of the NSA than I expected to when I went into this.

[Jack Goldsmith]

So we've discussed how one of the themes of the book, at least of Yalls view, is that the system, the Pentagon Papers regime, as odd as it may be, has worked pretty well, it seems. I mean, that's a broad general normative judgment, but it's worked pretty well and for the country, given the changes that we've had. But you have a commission report at the end and you make some recommendations for how we should change the regime. Can you talk about some of the more important ones? And maybe you should tell us who was on the commission, if you can, and how you went about your work. And then what were some of the most important recommendations?

[Lee Bollinger]

So the members of the commission were.

[Jeffrey Goldberg]

Jeff and me and Eric Holder, John Brennan, Ann Marie Lipinski, Kathleen Carroll and Steve Cole. So obviously people from the top of the journalism profession and the top of the government. The commission made a number of recommendations at the level of amending changing the espionage act of 1917, 1918, which is the governing Legal standard, the law that governs these kinds of problems, several of them have to do with what Jeff was just referring to, and you've referred to, Jack, is the internal structure of classification, the process, the checking on it, double checking on it, trying to stop the bias in the decision making, to classify and make it more balanced. So the number of recommendations about that. Then there's this really, really hard problem. And that problem is, should Pentagon Papers, in its full sense that we've been talking about, not only against prior restraints, but against subsequent punishments, should that be extended broadly to every person, every citizen who might be in possession of classified information and be able to publish it now on the Internet or elsewhere? Or should it be limited to some notion, some idea of the press? And should it be for all citizens? Should it be for a subset of the press? That's really complicated. Under Supreme Court decision making decisions on the First Amendment, really complicated as a matter of policy and law. How do you make the distinction? And. And the Commission moved towards the idea that those institutions, or even individuals who can show a certain level of general press, like behavior, informing the public on a regular basis, et cetera, should be entitled to a shield against prosecution. And it doesn't reach the question at the constitutional level what should the First Amendment do, but more at the statutory level, and makes note of the fact.

[Lee Bollinger]

That in other laws and other practices in the government, we do draw regular.

[Jeffrey Goldberg]

Distinctions between, quote, the press and others, and we can do so in the context of a statute. So there are other parts. But, Jeff, I'll turn those over to you.

[Geoffrey Stone]

Yeah, so one of the challenges, given the enormous breadth today of the, quote, press, is that, as I noted earlier, although you could trust the Times and the Post, for example, to be responsible, even if they may make mistakes, it's now the case that it's possible to make public, through a vast national, international audience, leaked information by entities that do not have that degree of expertise or responsibility. And should the Pentagon Papers apply to them? The Supreme Court has been very reluctant up to this point to define who is the press for purposes of the First Amendment. They had a case around the same time as the Pentagon Papers case called Bramsberg vs. Hayes, where the question was whether the First Amendment granted a journalist a journalist's privilege to refuse to disclose the source of information when asked to testify in a legal proceeding. And the Court rejected the recognition of such a First Amendment privilege. And one of the factors that clearly affected the Court's thinking was that it would then have to decide who gets to assert that privilege. Who is the press and who's not the press. And the justices just did not feel at all comfortable being in that position. But interestingly, 48 states now have journalist privilege laws in which they, in a statutory format, define who is the press for purposes of being able to assert the privilege. And although the Supreme Court understandably would still be reluctant to do such a thing, it might make sense for the government to pass laws, the United States government, for example, to pass laws that identify from a statutory standpoint who the press is, not for the sake of limiting the rights of the press, but for the sake of giving special dispensations to leakers who give information to those entities on the theory that they're going to leak anyway. Let's get them to give it to places who we have at least a reasonable degree of trust on. And that would be one possible approach I think would be quite interesting. Another issue we talked about in the recommendations is there should be better procedures inside the national security world for individual employees or contractors to raise questions about whether certain information should be made public. That is, there should be entities within the national security world consisting not only of full time experts in that world, but also some members who come from outside that world to whom employees can present the question, I think this information should be public. Why doesn't the NSA or the CIA make it public? And we recommend that they can even be able to do that anonymously so they're not chilled in their willingness to raise those questions. But we do think that the national security world could do a better job of giving its employees a process in which they can internally raise questions about whether things should not have been classified and should be public, and then allow the internal world to make better judgments about those questions than they're able to do right now.

[Lee Bollinger]

And then, Jack, there are two other.

[Jeffrey Goldberg]

Areas, as you know.

[Lee Bollinger]

One is, should leakers have any protection?

[Jeffrey Goldberg]

And the answer is no. But that the sort of modulation of government response should range from, of course, firing to misdemeanors to felonies, but no criminal. I mean, it's a more nuanced approach.

[Lee Bollinger]

To dealing with leakers, but not extend.

[Jeffrey Goldberg]

A sort of balance. You know, is it better to have the information public than not? So that how to treat leakers is one other area. And the other one discussed is the intersection between the press, the journalists and the leaker. And when should the press. What is the line where the press crosses over into criminal behavior themselves by trying to facilitate the leak?

[Lee Bollinger]

Should simply asking a leaker to get.

[Jeffrey Goldberg]

The information constituted criminal action. And the commission's view is, no, that's standard journalistic behavior. But that's another point of really interesting and important tension.

[Jack Goldsmith]

So it seems the Assange case, which we haven't talked about and which likely won't come to fruition, I guess, clearly raises this question about what is the press? And as you note, as the essays note, there's so many sources of infinite number, sources of publication in the United States and around the globe and so many ways for information to get out that it really is a hugely important question about where and how that line gets drawn. The second thing I'll say is that, Jeff, in response to the recommendation about the government being more responsible internally, the problem, as you and the other essays note, is that most of the secrecy world is not really in the government, it's in the private sector. And that is so much harder. It's so much harder to impose rules and norms there. And so many of the problems, I think, have come less from the government itself than from contractors. I want to close by asking about the last couple of paragraphs of the book, which is the end of your closing statement essay, and you, you basically end with a question about whether, given the way secrets are kept now, given digitalization, given the Internet, are there going to be ever more leaks of ever more important information that does ever more harm to national security? And in that world, can the Pentagon Papers regime, as we've described it, survive? And you seem to end kind of on a pessimistic note, and I just wonder if that's a, that's a the right reading or how you'd like to comment on that.

[Geoffrey Stone]

Well, I think that we and most of the participants do have a concern about the changes that have occurred in the national security world, including, as we noted, the vast expansion in the number of individuals, including literally millions of private contractors, who have access to classified information and the ability of individuals and organizations, not the mainstream press, to make this information available worldwide, have created serious dangers to national security. My sense is that although the leaks that have occurred thus far have been, some of them have been harmful to the national security. None of them has been at the magnitude that has really caused or required a fundamental rethinking of this. And a lot of people are thinking about it, of course, after Snowden and Assange and so on, and Manning. But I don't think we've had the kind of true crisis that would really require a serious rethinking. But I think almost everyone recognizes that the situation we have, that the Pentagon Papers created And as the world has evolved, is a very weird one and it's not clear that it is ultimately the right one. But any alternative that people propose winds up seeming to have more problems than advantages, except for relatively minor tinkering. So I think this is something we need to think about and continue to think about and hope we don't have the kind of truly world class disaster that at least theoretically could occur. But at the moment, I think there isn't the sense that we've encountered that at a degree of concern that requires a complete rethinking of the Pentagon Papers regime.

[Jeffrey Goldberg]

I would say that Jeff and I were not intending to be pessimistic, but I think we're sort of trying to express the reality that this is a very, very significant set of problems and that from our point of view at.

[Lee Bollinger]

This moment, it would be a pity.

[Jeffrey Goldberg]

To abandon the Pentagon Papers approach. It would be a pity, but if we're pressed and by hard cases, my own instincts would be to go towards protection for some subset of the world of responsible press, as difficult as that is to define, because I think the benefits are tremendous of having that check.

[Lee Bollinger]

But it would come at the cost.

[Jeffrey Goldberg]

Of having to do what Jeff rightly noted the court has been reluctant to do, which is to give some rights under the First Amendment to some parts of the citizenry, in this case an institution of the press, possibly some individual.

[Lee Bollinger]

That reluctance is based on a sense.

[Jeffrey Goldberg]

That the First Amendment should be there for everybody and we shouldn't be drawing these fine distinctions. So I would be more prepared to go in that direction, nevertheless, of special rights for a, quote, responsible press of some notion. And I think Jeff would be less so. And that tension is really, I think, what also gives the book some real power. But I think we ended up with.

[Lee Bollinger]

It would be a pity if at.

[Jeffrey Goldberg]

This moment what has worked reasonably well should be abandoned.

[Jack Goldsmith]

So we're out of time. Thanks so much. This is a definitive book on this question. Circa 2021, 50 years after the Pentagon Papers case. Thank you so much for talking to me.

[Geoffrey Stone]

Thanks for having us, Jack.

[Jeffrey Goldberg]

Thanks, Jack.

[Jack Goldsmith]

The Lawfare podcast is produced in cooperation with the Brookings Institution. Please share the Lawfare podcast and give us a five star review on iTunes. Go to thelawfairstore.com for brand new Lawfare pins, lanyards, T shirts and socks. The podcast is produced and edited by Jen Patia Howell and your audio engineer is Zachary Frank of Goat Rodeo. Our music is performed by Sophia Yan. As always, thank you for listening.

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