National Security, Leaks and Freedom of the Press

The Pentagon Papers Fifty Years On

Edited by Geoffrey R. Stone and Lee C. Bollinger

Gathers many of the most important and most influential national security officials, journalists and scholars
Includes a Commission report written by eight experts in the fields of national security, journalism, and the First Amendment
Offers profoundly new insights into the workings of the national security community and the media with respect to issues of fundamental national importance
Addresses how the intelligence community, the media, and the courts should handle the conditions that make leaking and disseminating classified information possible

National Security, Leaks and Freedom of the Press

The Pentagon Papers Fifty Years On

Edited by Geoffrey R. Stone and Lee C. Bollinger

Description

Written by a group of the nation's leading constitutional scholars, a deeply informed, thoughtful, and often surprising examination of who has First Amendment rights to disclose, to obtain, or to publish classified information relating to the national security of the United States.

One of the most vexing and perennial questions facing any democracy is how to balance the government's legitimate need to conduct its operations-especially those related to protecting the national security-in secret, with the public's right and responsibility to know what its government is doing. There is no easy answer to this issue, and different nations embrace different solutions. In the United States, at the constitutional level, the answer begins exactly half a century ago with the Supreme Court's landmark 1971 decision in the Pentagon Papers case. The final decision, though, left many important questions unresolved. Moreover, the issue of leaks and secrecy has cropped up repeatedly since, most recently in the Edward Snowden and Chelsea Manning cases. In National Security, Leaks and Freedom of the Press , two of America's leading First Amendment scholars, Lee C. Bollinger and Geoffrey R. Stone, have gathered a group of the nation's leading constitutional scholars-including John Brennan, Eric Holder, Cass R. Sunstein, and Michael Morell, among many others-to delve into important dimensions of the current system, to explain how we should think about them, and to offer as many solutions as possible.

National Security, Leaks and Freedom of the Press

The Pentagon Papers Fifty Years On

Edited by Geoffrey R. Stone and Lee C. Bollinger

Opening Statement
Lee C. Bollinger and Geoffrey R. Stone

The Pentagon Papers Framework: Fifty Years Later
Allison Aviki, Jonathan Cedarbaum, Rebecca Lee, Jessica Lutkenhaus, Seth Waxman, and Paul Wolfson

Part One: The National Security Perspective
1. Fighting for Balance
Avril Haines
2. Crafting a New Compact in the Public Interest: Protecting the National Security in an Era of Leaks
Keith B. Alexander and Jamil N. Jaffer
3. Leaks of Classified Information: Lessons Learned from a Lifetime on the Inside
Michael Morell
4. Reform and Renewal: Lessons from Snowden and the 215 Program
Lisa Monaco
5. Government Needs to Get Its Own House in Order
Richard A. Clarke

Part Two: The Journalist Perspective
6. Behind the Scenes with the Snowden Files: "How The Washington Post and National Security Officials Dealt with
Conflicts over Government Secrecy" Behind
Ellen Nakashima
7. Let's Be Practical: A Narrow Post-Publication Leak Law Would Better Protect the Press
Stephen J. Adler and Bruce D. Brown
8. What We Owe Whistleblowers
Jameel Jaffer
9. The Long, (Futile?) Fight for a Federal Shield Law
Judith Miller
10. Covering the Cyberwars: The Press vs the Government in a New Age of Global Conflict
David Sanger

Part Three: The Academic Perspective
11. Outlawing Leaks
David A. Strauss
12. The Growth of Press Freedoms in the United States Since 9/11
Jack Goldsmith
13 Edward Snowden, Donald Trump, and the Paradox of National Security Whistleblowing
Allison Stanger
14. Information is Power: Exploring a Constitutional Right of Access
Mary-Rose Papandrea
15. Who Said What to Whom
Cass R. Sunstein
16. Leaks in the Age of Trump
Louis Michael Seidman

The Report of the Commission
Lee C. Bollinger
John O. Brennan
Kathleen Carroll
Stephen W. Coll
Eric Holder
Ann Marie Lipinski
Geoffrey R. Stone

Closing Statement
Lee C. Bollinger and Geoffrey R. Stone

National Security, Leaks and Freedom of the Press

The Pentagon Papers Fifty Years On

Edited by Geoffrey R. Stone and Lee C. Bollinger

Author Information

Geoffrey R. Stone, Professor of Law, University of Chicago, Lee C. Bollinger, President, Columbia University

Lee C. Bollinger became Columbia University's 19th president in 2002 and is the longest serving Ivy League president. He is Columbia's first Seth Low Professor of the University, a member of the Law School faculty, and one of the nation's foremost First Amendment scholars. Bollinger is the author or co-editor of numerous books on freedom of speech and press, including Regardless of Frontiers: Global Freedom of Expression in a Troubled World (2021), The Free Speech Century (2018), and Uninhibited, Robust, and Wide-Open: A Free Press for a New Century (2010).

President Bollinger is a member of the Pulitzer Prize Board and a co-founder of the Knight First Amendment Institute at Columbia University, a center devoted to defending speech and press freedoms in the digital age through litigation, scholarship, and public education. In 2014, he established Columbia Global Freedom of Expression, a project that brings together experts and activists with faculty and students to advance understanding of international norms that protect expression and the free flow of information. He served as president of the University of Michigan from 1996 to 2002 and led the school's historic litigation in Grutter v. Bollinger and Gratz v. Bollinger, Supreme Court decisions reasserting that diversity is a compelling justification for affirmative action in higher education. A fellow of the American Academy of Arts and Sciences and the American Philosophical Society, Bollinger is also the recipient of multiple honorary degrees from universities in the United States and abroad.

Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago. Mr. Stone is the author or co-author of many books on constitutional law. Among them are Democracy and Equality: The Enduring Constitutional Vision of the Warren Court (2020), The Free Speech Century (2018); Sex and the Constitution (2017); Top Secret: When Government Keeps Us In the Dark (2007); and Perilous Times: Free Speech in Wartime (2004). In 2013, President Obama appointed Mr. Stone to serve on a five-member Review Group on National Security Intelligence in the wake of Edward Snowden's leaks about the NSA. The result was The NSA Report, which included 46 recommendations for improving the nation's foreign intelligence programs, many of which have been adopted and put into place. Thereafter, Mr. Stone served as a Senior Advisor to the Director of National Intelligence.

Contributors:

Stephen J. Adler, Editor-in-Chief of Reuters

Keith B. Alexander, retired four-star United States Army general who currently serves as Co-Founder, Chairman, and Co-CEO of IronNet Cybersecurity; GEN (ret) Alexander previously served as Director of the National Security Agency, Chief of the Central Security Service, and as the Founding Commander of United States Cyber Command

John O. Brennan, Former Director, Central Intelligence Agency

Bruce D. Brown, Executive Director, Reporters Committee for Freedom of the Press

Kathleen Carroll, Former Executive Editor and Senior Vice President, The Associated Press

Richard A. Clarke, former American government official serving in national security roles

Stephen W. Coll, Dean, Columbia Journalism School, Henry R. Luce Professor of Journalism, Columbia University

Jack Goldsmith, Learned Hand Professor of Law, Harvard University

Avril Haines, Former White House Deputy National Security Advisor

Eric Holder, Former Attorney General of the United States

Jameel Jaffer, Executive Director of the Knight First Amendment Institute at Columbia University

Jamil N. Jaffer, Founder and Executive Director of the National Security Institute, the Director of the National Security Law & Policy Program; Assistant Professor of Law at the Antonin Scalia Law School at George Mason University; and Senior Vice President at IronNet Cybersecurity

Ann Marie Lipinski, Curator, Nieman Foundation for Journalism, Harvard University, and former editor-in-chief and Senior Vice President, the Chicago Tribune

Judith Miller, investigative journalist formerly with The New York Times, adjunct fellow at the Manhattan Institute, and City Journal contributing editor

Lisa O. Monaco, Former Homeland Security & Counterterrorism Advisor, and Deputy National Security Advisor; Distinguished Senior Fellow, Reiss Center on Law & Security, New York University School of Law; Partner, O'Melveny & Myers

Michael Morell, Former Acting and Deputy Director, Central Intelligence Agency

Ellen Nakashima, national security reporter for The Washington Post

Mary-Rose Papandrea, Samuel Ashe Distinguished Professor of Constitutional Law, University of North Carolina School of Law

David E. Sanger, national security correspondent and senior writer, The New York Times

Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center

Allison Stanger, Cary and Ann Maguire Chair in Ethics and American History at the Library of Congress, Center for Advanced Study in the Behavioral Sciences Fellow at Stanford University, Russell Leng '60 Professor of International Politics and Economics at Middlebury College, and an External Professor at the Santa Fe Institute

David A. Strauss, Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School

Cass R. Sunstein, Robert Walmsley University Professor, Harvard Law School

WilmerHale attorneys: Allison Aviki, Jonathan G. Cedarbaum, Rebecca Lee, Jessica Lutkenhaus, Seth P. Waxman & Paul R. Q. Wolfson