Academic journal article Harvard Law Review

Media Incentives and National Security Secrets

Academic journal article Harvard Law Review

Media Incentives and National Security Secrets

Article excerpt

Alexander Bickel characterized the American approach to protecting national security secrets as an "unruly contest" between government and the press. (1) On this view, the government's role is to classify information that ought be kept secret and to stop leaks at the source, but not to take action against the media. (2) The "presumptive duty of the press," meanwhile, "is to publish." (3) A news outlet that discovers a government secret decides on its own whether publishing that secret is in the public interest.

Bickel's view is descriptively quite accurate. In recent years, journalists have exposed many stories that the government claims will imperil efforts in the war on terrorism, including the Bush Administration's secret domestic surveillance of al Qaeda affiliates (4) and its efforts to track terrorist financing. (5) And while some statutes criminalize the publication of classified information, the government has never used them against a journalist. (6) The prevailing paradigm is thus one of self-regulation: the press checks itself.

Whether this approach is normatively as well as descriptively best is a more difficult question. The basic dilemma is familiar. Some secrecy is essential to both national security and democracy, (7) but excessive secrecy undermines democratic accountability and decisionmaking, and sometimes national security itself. Disclosure decisions in a democracy thus must balance the importance of public knowledge and deliberation against the risk of exposing and undermining desirable policies or damaging national security. But neither the government nor the press can be trusted to strike that balance, for both have asymmetric incentives. The government risks public criticism when it announces a policy but risks little when it is secretive. Likewise, journalists have much to gain from publishing a classified secret, and little to lose. They almost fully internalize the benefits of publication, but may discount or inaccurately assess national security harms, which are dispersed across society.

Scholars and policymakers have proposed many ways to moderate the government's tendency to excessive secrecy. (8) But they have largely ignored the parallel question of how law might incentivize journalists to make disclosure decisions that benefit democracy rather than the press itself. The problem is far from academic. A bipartisan report recently concluded that "[h]undreds of serious press leaks have significantly impaired U.S. capabilities against our hardest targets," costing "hundreds of millions of dollars." (9) A free press is essential to informing the public, but critics urge that reporters are less accountable than the government they seek to check. (10) The press wields vast power to undercut desirable classified programs and to communicate the nation's capabilities and vulnerabilities to the enemy, and its publication decisions are ad hoc. (11) The self-regulation status quo, critics suggest, thus "raises the ancient question of who is guarding the guardians." (12)

This Note aims to make two principal contributions to the literature on the publication of national security secrets. The primary goal is to flesh out the press's motivations and incentives in publishing classified information, drawing on historical accounts and memoirs. Those incentives, the Note suggests, have led reporters to engage in a series of consistent procedural errors when making publication decisions: they consider factors that are irrelevant to whether publication is democratically desirable, and ignore factors that are relevant. In laying out the incentives and errors, the Note both questions the dominant paradigm of self-regulation and suggests that focusing on decision processes might provide an opportunity for reform. Substantive judgments about whether publication properly balances public knowledge and security will be subject to irremediable contestation in this context, but sanctioning errant procedures might more effectively align journalistic incentives to democratic desiderata. …

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