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

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.