I’ve returned alive from my debate with Walter Pincus of the Washington Post. He is a genial fellow (as am I) and it was a friendly discussion. As I noted here on Tuesday, the proposition under discussion was:

RESOLVED: That in a free society the people need to know what their government is doing, so the media should have discretion in deciding whether or not to publish “leaked” classified national security information.

Pincus made the affirmative case and I was supposed to make the negative one. But I didn’t. As I wrote here:

I also favor the proposition. If that is how the issue is framed, there won’t be much debate. Given the huge amount of material the government classifies but which it shouldn’t classify, it would be hard to argue otherwise. Here, for example, is a link to a recently declassified photograph of a handgun. Why it was classified in the first place is a mystery. If Walter Pincus has published this picture, back when it was stamped secret, on the front page of his newspaper, I would not have been troubled in the least.

But that said, I also believe — and here is where I imagine I will part company with Pincus — that if the press is to enjoy discretion in this area, prosecutors should also enjoy discretion of their own.

They should remain free to investigate damaging leaks by subpoenaing journalists and compelling them, under pain of contempt citations, to disgorge their confidential sources. On some rarer occasions, when the press itself violates statutes governing the publication of classified information, journalists themselves should be vulnerable to prosecution.

In response to this line of argument, I received a thoughtful comment from Lawrence Kramer who wrote:

I don’t believe it is ever right to enact legislation under which an act “may” be criminal. Prosecutorial discretion refers to the prosecutor’s husbanding of resources — to declining to prosecute what is clearly illegal where there is no public interest to be served (e.g., the office superbowl pool); it does not refer to a discretion to decide whether an act is a crime. Yes, the prosecutor is charged with determining whether an act is a crime, but it is not something about which he has discretion. The law says whether the act is a crime; the prosecutor then must decide in his discretion whether to prosecute it. You are advocating a law under which the prosecutor decides whether a crime has been committed in the first place. I believe such a situation might fairly be called a “government of men.”

I’m not suggesting I have a solution to the excesses of a free press, only that you don’t have one either.

I am not sure that Mr. Kramer and I disagree about anything here, although perhaps he will see a point of discord. Some of the relevant statutes are quite vague, especially the Espionage Act of 1917. This law does not punish the unauthorized disclosure of “classified” information. Rather, it enjoins the unauthorized disclosure of “national defense information” (NDI). This distinction gives the press a great deal of latitude. In any given case, journalists can argue that information it has published is not NDI, and has been improperly classified by the government. Such improper classification happens frequently, and it is easy to dig up examples of information that is not NDI and improperly classified “confidential” or “secret.”

Thus, inevitably, the press does have discretion to publish when its comes upon classified information. That has certainly become the common practice in American journalism. Given that the classification system is so haphazard, it would be difficult to alter the practice without radically altering the entire scheme under which information is deemed secret by the government.

But since we are faced with a press that is not only eager to publish classified information, but classified information about highly sensitive and operational counterterrorism programs, some remedy is needed. And that is where prosecutorial discretion comes in. Not every leak of classified information is damaging. But some of those that are damaging could be prosecuted under existing law.

Here in New York City, the police typically do not go after jay-walkers. But a jay-walker trying to cross high-speed traffic on the Long Island Expressway, endangering motorists and himself alike, deserves to be arrested and prosecuted to the full extent of the law.  And indeed, not only deserves to be arrested, but in all likelihood would be arrested by the NYPD.

A similar fate should await high-speed publishers of leaked NDI, like James Risen of the New York Times.

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