Freedom of the Press in the Post-Snowden World

MOSCOW, RUSSIA - DECEMBER 2013:  (EXCLUSIVE ACCESS; PREMIUM RATES (3X) APPLY) Former intelligence contractor Edward Snowden p
MOSCOW, RUSSIA - DECEMBER 2013: (EXCLUSIVE ACCESS; PREMIUM RATES (3X) APPLY) Former intelligence contractor Edward Snowden poses for a photo during an interview in an undisclosed location in December 2013 in Moscow, Russia. Snowden who exposed extensive details of global electronic surveillance by the National Security Agency has been in Moscow since June 2012 after getting temporary asylum in order to evade prosecution by authorities in the U.S. (Photo by Barton Gellman/Getty Images)

One reason it took the United States nearly 10 years to find Osama bin Laden was that a newspaper published the fact that the United States was listening in on his phone calls to his mother and was thus able to guess his whereabouts. Bin Laden gave his phone to an underling, who traveled north -- with the United States in hot pursuit -- while bin Laden traveled south and slipped into Pakistan. After that, he never used a cellphone.

Until recently, most people -- including, it seems, the mullahs of Iran -- assumed that if their computers or networks were not connected to the Internet, they were free from surveillance.

Almost one year ago, Edward Snowden revealed that the United States had found a way to tap into unconnected computers, and we lost a major way of keeping tabs on whether Iran is about to make nukes.

After their names were published, CIA agents were shot and killed. Even if you think it was proper for the press to publish all this information in the name of the "people's right to know," you may agree with the opinion of Glenn Greenwald, a radical advocate for the free press, that each nation has a need and right to keep some secrets from prying eyes.

If one accepts this basic premise, the logical next step is to ask who should have the authority to render the final decision on what to publish when a nation's secrets are delivered, à la Snowden, to the desks of select editors. Bill Keller, former executive editor of the New York Times, and Dean Baquet, former managing editor at the Los Angeles Times, described this decision-making process as follows: "[W]e weigh the merits of publishing against the risks of publishing. There is no magic formula, no neat metric for either the public's interest or the dangers of publishing sensitive information. We make our best judgment." Former Washington Post executive editor Leonard Downie, Jr. has stated, "[v]ery, very seldom do we decide not to publish a story at all. But quite often we will leave out specific details, technical details, location details that could put lives or programs in jeopardy unnecessarily." Part of the editor's job, he notes, is "weighing how to publish significant stories about national security without causing unnecessary harm."

Who is an editor? Editors need no license to practice. Anyone, including bloggers, can claim that they are editors and hence claim to be free to publish classified information. Should all these persons be shielded from the consequences of their actions? Or, is the responsible media willing to make a list of legitimate editors and outlets that can assume the mantle of making these fateful decisions? Will the "press" then hold that the government should enjoin or punish the "irresponsible" publishers?

At minimum, one should expect that the professional association of editors will form a panel to formulate what they consider the proper normative (not legal) guidelines to follow. One obvious guideline is to not endanger the lives of our agents overseas or their local collaborators. Another is to not divulge ongoing operations.

In addition, editors struggling with the question of whether or not to publish a given state secret may wish to consult with this panel which should be composed of retired editors, select respected public intellectuals, and maybe a few former security officials. The editors could then draw on the panel's conclusions to help legitimate their decision when they face critics from the public or within their publication or professor, if the panel concurs with their preferences. Or -- carefully reexamine their preferences if the panel urges that publication should be avoided.

As to the claim that the press has been "chilled" by recent attempts by the government to find out from reporters who leaked classified information to the media -- a violation of the law -- one notes that leaks continue to flow freely. And are published regularly.

True, we would be better off if much less information would be classified in the first place. If one grants that national security requires safeguarding some secrets -- and if the editors will not regulate themselves -- the United States may have to consider following Britain, and introduce a state secret act, which will punish not just those who leak but also those who share national secrets with our adversaries.

Amitai Etzioni is a University Professor and Professor of International Affairs at The George Washington University.