When journalists obtain classified documents while reporting the news, there’s no easy answer on how to handle them.
From the Spring 2006 issue of The News Media & The Law, page 9.
By Casey Murray
The classified document dealt with a National Security Agency investigation of possible terrorist groups, including the al-Haramain Islamic Foundation.
The Washington Post had three copies of it.
But instead of keeping it, the paper returned the document to the FBI in December 2004.
Eric Lieberman, the Post‘s attorney, told the FBI in a letter that, “we do not agree that we are under any legal obligation to return the document in question or to refrain from reporting on the contents. However, we have decided to return all three copies of the document in our possession,” Editor & Publisher reported.
In March, the al-Haramain Islamic Foundation sued the government, claiming that it was a target of the NSA’s domestic surveillance. Since the Post returned the document well before NSA’s domestic eavesdropping became public, it is hard to say if the document would have been useful in reporting the story.
The incident is a reminder that there is no simple answer for how newsrooms should handle classified documents.
Because of the sensitivity and the Post’s involvement in the case, Lieberman declined to discuss the issue. But Sandra Baron, executive director of the Media Law Resource Center, said: “You could argue in certain situations that returning the classified documents reduces some of the legal risks.” There are, she said,”no overriding ground rules” for dealing with classified information.
The Post was criticized for returning the classified document to the FBI, then was criticized for publishing classified information about CIA-run secret prisons in Eastern Europe in 2005, which won Dana Priest the 2006 Pulitzer Prize for beat reporting.
Despite pressure from the government, news organizations will continue to deal with classified information.
“In the end,” Baron said, “reporters report on matters of public interest. There’s no way to avoid receiving information that has been classified — it’s what reporters do,” she said.
When a news organization receives — or realizes that it already has — classified information, it faces a variety of issues: whether to publish it or return it, whether publishing the information could harm the country, and how to protect where it came from.
“The law is — as long as it’s truthful, newsworthy and you didn’t illegally obtain it — any statute punishing you from publishing it is unconstitutional,” said George Freeman, assistant general counsel for The New York Times. “The key point — and it’s not a very popular point — is that ultimately the decision whether or not to publish is made by the newspaper, not the government. If you get it legally, we can’t have the government telling us what to publish or not to publish.”
There’s a delicate balance to strike in dealing with the government over classified matters.
“For national security concerns, generally speaking you’ll want the government to explain to you and convince you that there’s a harm in publishing,” Freeman said. “You have to be open and objective in any showing that they make, you don’t want to be too cynical or too passive.”