Chicago Tribune Editorial - A dangerous attack on leaks

Chicago Tribune Editorial - A dangerous attack on leaks
Copyright © 2006, Chicago Tribune
Published December 17, 2006

Presidents have succeeded at many things, but they all fail at one thing: preventing the unauthorized dissemination of information they would prefer to keep under wraps. Most presidents learn to live with leaks, but this administration seems to think it can and should stop them completely.

A federal prosecutor has come up with a novel and sweeping way to uphold secrecy. And the chief result of the effort is to prove that there are some things a lot worse than leaks.

One day in October, the American Civil Liberties Union says, it got an unsolicited copy of a government document marked "Secret." A few weeks later, it got a call from an assistant U.S. attorney demanding the return of all copies of the paper--a request the ACLU declined. At that point, the prosecutor got a grand jury subpoena ordering the organization to turn them over. The ACLU is now fighting it in court.

This is an odd use of a grand jury subpoena, which is customarily intended to gather information, not censor it. In fact, the ACLU says it can find no other occasion when a grand jury subpoena demanded the surrender of all copies of a document.

The government has ample means to prevent leaks of classified information. But it's settled law that, once leaks occur, the government may not censor publication of such material, barring some serious threat to national security.

The purpose of the subpoena is clear: to permit the federal government to suppress information about matters of potential public interest, even if it would cause no harm. This new tactic would effectively allow the government to engage in prior restraint by blocking publication of such material--something starkly at odds with the 1st Amendment. That would be a radical departure from practice, an infringement on press freedom and a serious loss to public understanding of how the government operates.

Much of what every administration does comes to light only through leaks that find their way into news reports. The government has the authority to try to prevent and punish disclosures that endanger public safety, rather than merely cause political embarrassment.

But the document at issue here, said ACLU executive director Anthony Romero, contains "nothing that jeopardizes national security." The government may disagree, but its demand doesn't rest on the alleged danger posed by the leak.

The chances are good that the ACLU will prevail in the end. Prior restraints are the essence of what the framers meant to banish when they wrote the 1st Amendment. The Supreme Court emphasized in the 1971 Pentagon Papers case that the government may bar publication of secrets only when "disclosure of any of them will surely result in direct, immediate and irreparable damage to our nation or its people."

If the government can demonstrate that such a risk exists in this case, it should do so. Otherwise, it should back off.