Late last year, a law school professor weighed in on the wikileaks controversy over the reams of government documents, some confidential, which were published on the internet. At issue is the question of whether the First Amendment was served by the disclosure or America’s national security threatened.
Not too surprisingly, the professor—Geoffrey R. Stone of the University of Chicago—comes down in favor of the former conclusion but gives a surprising nod to the latter. “If we grant the government too much power to punish those who disseminate information useful to public debate, then we risk too great a sacrifice of public deliberation; if we grant the government too little power to control confidentiality ‘at the source,’ then we risk too great a sacrifice of secrecy and government efficiency,” Stone stated before a congressional committee on December 16, 2010. “The solution is thus to reconcile the irreconcilable values of secrecy and accountability by guaranteeing both a strong authority of the government to prohibit leaks and an expansive right of others to disseminate them.”
In testimony before the U. S. House Judiciary Committee, Stone elaborated upon examples of government policies where discretion would be in order. “The example traditionally offered was ‘the sailing dates of transports’ or the precise ‘location of combat troops’ in wartime,” Stone told the lawmakers who made it to the hearing. “The publication of such information would instantly make American troops vulnerable to enemy attack and thwart battle
plans already underway.”
“Other examples might include publication of the identities of covert CIA operatives in Iran or public disclosure that the government has broken the Taliban’s secret code, thus alerting the enemy to change its cipher. In situations like these, the harm from publication might be sufficiently likely, imminent, and grave to warrant punishing the disclosure.”
Stone attempted to provide some historical context for the lawmakers but laid out an overview that was somewhat deceptive. “During the Civil War, the government shut down ‘disloyal’ newspapers and imprisoned critics of the president’s policies,” Stone pointed out to the committee. “During World War I, the government enacted the Espionage Act of 1917 and the Sedition Act of 1918, which made it unlawful for any person to criticize the war, the draft, the government, the president, the flag, the military, or the cause of the United States, with the consequence that free and open debate was almost completely stifled.”
“And during the Cold War, as Americans were whipped up to frenzy of fear of the ‘Red Menace,’ loyalty programs, political infiltration, blacklisting, legislative investigations, and criminal prosecutions of supposed Communist ‘subversives’ and sympathizers swept the nation.
Over time, we have come to understand that these episodes from our past were grievous errors in judgment in which we allowed fear and anxiety to override our good judgment and our essential commitment to individual liberty and democratic self governance.”
As it happens, even Abraham Lincoln’s admiring biographer, Carl Sandburg, acknowledged that old Abe went over the top in the name of the Union. Further, in Liberal Fascism, Jonah Goldberg chronicles, in exhaustive detail, how the philosophy of never letting a crisis go to waste was applied during the administration of Woodrow Wilson, long before Rahm Emmanuel was even born.
Nevertheless, during the Cold War, as U. S. government investigators found at the time and Soviet archives later revealed, there were not only clear and present dangers to the United States but actual red menaces on U. S. soil, stealing bomb recipes, and doing their utmost, via undercover agents working in the government, to subvert American policy.
Malcolm A. Kline is the Executive Director of Accuracy in Academia.
If you would like to comment on this article, e-mail mal.kline@academia.org
