⚖️Law and Ethics of Journalism Unit 11 – Journalism and National Security Issues

Key Concepts and Definitions

• National security encompasses protecting a nation's citizens, economy, and institutions
• Classified information is sensitive material that requires protection from unauthorized disclosure
• Espionage involves gathering confidential information without the permission of the information holder
• Prior restraint is government action that prohibits speech or other expression before it can take place
• Shield laws provide journalists with protection from being compelled to disclose confidential sources
  • Vary by state and do not apply in federal cases
• Whistleblowers are individuals who expose misconduct, alleged dishonest or illegal activity occurring in an organization
• The Espionage Act of 1917 makes it a crime to gather, transmit, or lose defense-related information with the intent or reason to believe it may be used against the U.S.

Historical Context

• The First Amendment, ratified in 1791, protects freedom of the press from government interference
• During the Civil War, President Lincoln shut down newspapers and jailed editors who were critical of the war effort
• In World War I, the Espionage Act of 1917 was used to prosecute individuals for criticizing the war effort
• The Pentagon Papers, leaked in 1971, revealed the U.S. government had misled the public about the Vietnam War
  • The Supreme Court ruled that the government could not block publication of the papers
• In 1972, the Watergate scandal led to increased tensions between the press and the government
• The War on Terror, following the 9/11 attacks, led to increased government secrecy and surveillance of journalists
• The Obama administration prosecuted more leakers and whistleblowers under the Espionage Act than all previous administrations combined

Legal Framework

• The First Amendment protects freedom of the press, but does not provide an absolute right to publish classified information
• The Espionage Act of 1917 criminalizes gathering, transmitting, or losing defense information
  • Does not differentiate between journalists and spies
• The Intelligence Identities Protection Act of 1982 makes it a crime to disclose the identity of covert intelligence agents
• The USA PATRIOT Act of 2001 expanded government surveillance powers and allowed for increased secrecy
• The Free Flow of Information Act, proposed in Congress multiple times, would provide a federal shield law for journalists
  • Has not been passed into law
• The Supreme Court has ruled that journalists can be compelled to testify before grand juries if the information is critical and cannot be obtained elsewhere
• Whistleblower protection laws, such as the Whistleblower Protection Act, provide some protections for federal employees who report misconduct

Ethical Considerations

• Journalists must balance the public's right to know with potential harm to national security
• Revealing classified information could put lives at risk or jeopardize ongoing military or intelligence operations
• Journalists should verify the accuracy of information before publishing and consider the motives of their sources
• Protecting confidential sources is a core ethical principle for journalists
  • May need to weigh this against other ethical obligations or legal requirements
• Journalists should be transparent about their methods and any potential conflicts of interest
• The Society of Professional Journalists Code of Ethics provides guidance on ethical decision-making
• News organizations often have their own ethical guidelines and review processes for sensitive stories

National Security Reporting Techniques

• Cultivating trustworthy sources within the government, military, and intelligence agencies
• Using secure communication methods (encrypted messaging apps, burner phones) to protect sources
• Verifying classified documents through multiple sources before publishing
• Redacting sensitive information that could cause harm if published
  • Names of covert agents, troop locations, technical details of weapons systems, etc.
• Collaborating with other news organizations to share resources and minimize risks
• Consulting with legal counsel to navigate complex legal issues and potential risks
• Providing context and analysis to help the public understand the significance of revelations
• Seeking comment from government officials and allowing them to make their case for secrecy

Challenges and Risks

• Government officials may overly classify information to avoid embarrassment or accountability
• Journalists may face prosecution under the Espionage Act or other laws for publishing classified information
  • The Obama administration prosecuted more leakers under the Espionage Act than all previous administrations combined
• Revealing classified information could potentially harm national security or put lives at risk
• Government surveillance and subpoenas can jeopardize confidential sources and hinder reporting
• Leaks can be difficult to verify and may be motivated by personal or political agendas
• Reporting on national security issues can strain relationships with government sources
• Journalists may face threats, harassment, or even violence from foreign governments or non-state actors

Case Studies

• The Pentagon Papers (1971): Leaked documents revealed the U.S. government had misled the public about the Vietnam War
  • The Supreme Court ruled against prior restraint, allowing publication
• The Watergate Scandal (1972-1974): Washington Post reporters uncovered a break-in at the Democratic National Committee headquarters linked to the Nixon administration
  • Led to Nixon's resignation and demonstrated the importance of investigative journalism
• The warrantless wiretapping story (2005): The New York Times revealed that the Bush administration had authorized the National Security Agency to conduct warrantless surveillance of Americans' phone calls and emails
  • Led to public debate about the balance between national security and civil liberties
• The Edward Snowden leaks (2013): Snowden, a former NSA contractor, leaked documents revealing the extent of global surveillance programs
  • Sparked international conversations about privacy and government overreach
• The CIA torture report (2014): The Senate Intelligence Committee released a report detailing the CIA's use of enhanced interrogation techniques after 9/11
  • Raised questions about government transparency and accountability

Future Trends and Implications

• Advancements in technology will continue to change the landscape of national security reporting
  • Encryption, secure drop boxes, and other tools can help protect sources and communications
  • Artificial intelligence and big data analysis may make it easier to identify leakers or surveil journalists
• Geopolitical shifts and the rise of cyber warfare may create new challenges and risks for journalists
• The debate over the balance between national security and press freedom is likely to persist
  • Calls for a federal shield law and reforms to the Espionage Act
• News organizations may need to adapt their practices to protect sources and navigate legal risks
  • Increased collaboration, legal support, and digital security measures
• Rebuilding trust with the public and government sources will be crucial for effective national security reporting
• Journalists must continue to hold the government accountable while responsibly handling sensitive information