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Thu, May 23

Commentary: National security vs. public's right to know

News is swirling these days around a complex mix of national security issues, leaks of classified information, and First Amendment protections for a free press amid the new world of digital journalism.

Round One: Score it for the Obama administration, which came out of the corner fighting against leaks early in the first term - by this year, bringing more prosecutions under the Espionage Act than ever before.

Round Two: Just as a shield law long-sought by many journalists to protect the reporter-source relationship was nearing a final vote in the U.S. Senate in 2009, a haymaker gets thrown: Wikileaks released hundreds of thousands of memos and battlefield briefs to the public. Officials cried "treason," while others saw it as a plus for public knowledge - but down goes the proposed "Free Flow of Information Act."

Round Three: In Spring 2010, U.S. Army Pvt. Bradley Manning is arrested on charges of giving more than 700,000 State Department cables, terrorism detainee assessments, combat logs and videos to WikiLeaks - the largest such leak in U.S. history. Manning will go to trial in three years later, facing more than 130 charges. Government round, clearly.

Round Four: In May, The Associated Press threw some serious punches when it's revealed that the Justice Department secretly obtained months of AP phone records for as many as 20 reporters and at multiple AP offices while investigating leaks.

Round Five: The bout is fully joined in late May and into June with a series of major disclosures by former low-level NSA analyst Edward Snowden of a massive National Security Agency program that provides access to the "meta-data" of millions on American phone calls and e-mail - but, the government said, not to the content of the calls or messages.

Round Six: As part of an investigation of a 2009 leak, a search warrant request named Fox News's James Rosen as "an aider and abettor and/or co-conspirator" for receiving the information. A quick series of jabs by free press advocates and media officials lead White House officials to back-pedal.

Round Seven: Jabs and roundhouse swings at the government over the AP records seizure and the Rosen affair produce an invitation in mid-June from Attorney General Eric Holder to major news outlets to discuss long-standing rules within the Justice Department governing attempts to get journalists' files or other records. The meeting is off-the-record, so some journalists will not attend.

Round Eight: On July 19, the U.S. Fourth Circuit Court of Appeals ruled that New York Times reporter James Risen must take the stand at the trial of a former CIA agent being prosecuted for leaking of state secrets.

Round Nine: Manning is convicted July 30 of violating the Espionage Act, and could be sentenced to as long as 36 years in prison. But he's acquitted on the charge of aiding the enemy. Still, a flurry of news reports raised the idea that the conviction - combined with continuing zealous efforts elsewhere by the Department of Justice - will "chill" whistleblowers and scare them away from talking with journalists.

Round Ten: In the U.S. House, the NSA data surveillance program survived a surprisingly tight vote, 217-205, on July 24, At the same time, more documents and allegations surface from Snowden, supporting the claim that even low-level NSA analysts can gain access to the content - not just data surrounding - individual phone conversations and e-mails.

Clearly we're only in the early rounds of balancing legitimate national security concerns against over-classification and with the need of the public for accurate information on what its government is doing.

Even with all that's come to light, we're just getting though the early sparring in this ongoing Constitutional rumble.

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of its First Amendment Center. Email him at gpolicinski@newseum.org

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