Transcripts For CSPAN Journalism And National Security Part 2 20170217

The Trump Administration and its relationship with the media. Speakers looked at National Security issues in light of recent leaks involving Government Officials and members of the administration. His is an hour and a half. Host good morning, were going to start up again. For those who are newly arrived, im Sanford Unger and ill just wait for people to find their seats. Im Sanford Unger, im glad to welcome you to a continuation of our symposium on the legacies of the pentagon papers. Some of you have been with us last last night and earlier. When putting Something Like this together, i wanted to make sure that we had at least one faculty member at georgetown who had the respect of students and was known by students and as somebody who is interested in furthering dialogue of this sort. And all signs pointed to ellen gorman, a lecturer in the English Department and is particularly interested in the pentagon painers for their cultural significance and what theyve told us about the evolution of Democratic Society in this country. So ellen graciously agreed to be a moderator of this panel and i will turn things over to her now. Thank you, ellen. Ms. Gorman thank you very much. This is an exciting opportunity to talk to some eminent people right now about whats going on. The title of the panel is what will happen next . And im looking forward to hearing what they think is going to happen next with regard not only to the legacy of the pentagon papers but to last two weeks and whats been going on. What i see are changing deaf anythings of the term leak and Different Levels of society see them as bull warks of some kind of encroachment of a lack of understanding facts or news or what the truth is. I think one quote thats really what ative comes from weve been referring to all this morning, the decision of the judge about the pentagon papers and whether or not the New York Times would be allowed to publish them, he made the following declaration. The security of the nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an on city nant press, a ubiquitous press, must be suffered by those in authority in order to preserve e values of the freedom of expression and the right of the people to know. These are troubled times. I think we could say refers to now. Theres no greater safety valve, he claimed, for discontent and cynicism about issues of golt and freedom of expression in any form. This has been the genius of our institutions throughout our history, it is one of the marked traits of our National Life that distinguish us from other nations under different forms of government. Thats certainly one issue that id like to talk with susan, pat, and marty about, the differences in the American Media and government and how these things play out here. I think the judges words will help us lead into our discussion. We have marty baron here, who is executive editor of the Washington Post. Hes been with the post since 2012. Before coming to the post, he was editor of the boston globe where he directed an investigation into abuse in the Catholic Church which was which resulted in a pulitzer a a song lso in called spotlight. Hes committed to Free Expression and enquirry, depth of intellect and willingness to pursue the truth without regard to personal or professional consequence. I think thats quite an audacious prize and im so excited to have him here. Susan hennessey is managing la fare and is now at the brookings institute. Prior to joining brookings, she was with the general counsel of the n. S. A. A recent article she wrote is called the law of leaks, i think its requisite reading for right now. Its an examination of the of the laws surrounding government leak, how the white house might seek to investigate them and how we might see them as a remedy in terms of information with regard to failings, potential failings in the government what the nature of leak investigations and enforcement means for the government and the people in general. We also have pat rowan, a rtner at a law firm where he focused on national and interNational Security matters. Before joining them he was for 18 years at the department of justice he served as assistant attorney general for National Security where he managed d. O. J. s National Security investigations and prosecutions and handled oversight of all espionage investigations among other things. In november of 2016 he was also named a member of the new administrations landing team for the department of justice. So thank you so much, all three of you, for coming. I look forward to hearing what you have to say and maybe well talk about the end a bit more bout the leaks, the pentagon papers, we heard daniel alsoburg last night speak at length about the process he went through in terms of providing information to the press. His discussions with members of the government about how this might play out. And his decision as a citizen and as a Civil Servant about why he felt this information needed to be known by the American People. Y first question is for marty. The post has been, as we mentioned in the first panel, one of the Major Players right now in terms of reporting about whats been going on, this sort of continued question about what a like is, whether it is more about as bob woodward said in the last panel, vigorous reporting that elists information as opposed to an actual leak, a document or Something Like that thats brought to the paper. I think that its interesting to ink about the way that the plethora of information thats coming out now is processed. How does the post sort through not only the amount of information but also what do people who give information to the post expect will be the result, do you think . If enough i if you have any notion of that. Mr. Baron i would say theres not a plethora, its quite limited whats being released. We would welcome more. So theres a lot more to be known and people have more to reveal, wed certainly be receptive to receiving it. Its actually quite limited. Leaks, its a very broad term. It can apply to a lot of different things. I think in most instances, as in the recent these recent instances over the last several weeks, reporters have spent theyre careers developing sources, cultivating them, talking to them, building up confidence, these are deep reporters, people on our staff that covered intelligence for a very long period of time. Other people who covered Justice Department, Law Enforcement of every type, and theyre able to sort of, as a result of cultivating these sources theyve been able to gather information. In other instances, things were dropped in our lap. We have on our website, actually a big welcome sign to people to send us stuff. We provide all sorts of ways they can send it to us with what we hope is a high degree of confidentiality. In the perhaps most well known recent case, obviously edward snow den provided a huge volume of documents to us and to the forwardian and ultimately to some other publications. That were highly classified. And he initiated that effort even though he was not familiar he ially with glen or mark, was introduced to them by a filmmaker and so that was an instance where Somebody Just came forward to us. And we then looked through those documents. Why do people drop this information . Theres a variety of reasons. In the case of snow den he says he felt the of snowden, he felt the government had gone to an extreme on surveillance on individuals in this country and other countries and that motivated him. There are other people who may feel aggrieved for one reason or another. A lot of people leak, the reason people leak in the rem of intelligence is probably similar to the reason they leak in other rems, they just have some realms, they just have some reason for doing. So it could range, there could be a broad range of reasons for doing. So we dont we want to know what the motive is, but ultimately want to evaluate the information in its own right. Ms. Gorman the representative of the New York Times talked about a drop box that the times offers to people he indicated that there was a higher percentage of valuable information than he thought there would be. He said he thought it would be 99 just noninformation but he sees more, like 10 now of usable, quantity final information. Mr. Baron they have something similar to us. I dont know what the volume is, i dent look at it myself. We have people that review it, its circulated to the appropriate people to examine. Its generally a small percentage thats worthy of publication and our efforts and i dont know what that percentage would be. But even if its 1 , well take t. Mr. Baron you have Something Like that . Mr. Baron we ms. Gorman you have Something Like that . Mr. Baron we do. If you look at our website, its right there, you can click theres here and information about how to do it. And theres mail too, thats how the times was able to get a portion of Donald Trumps taxes, the mail. Pretty secure. Ms. Gorman susan and pat, can you walk us through the roots of how this might play out in terms of repercussions for someone who decides to provide information to Something Like the Washington Post or New York Times, is there a procedure where they need to be sort of counseled by attorneys . I know they talked about that last night, he went to an attorney and asked about what the repercussions might be, can you see that things have changed for instance, or that things now in the digital age have made prosecutions fundamentally different . Harsher or not, i know in the article you mentioned that you dont see you see antileak prosecutions not being something that are more likely to happen now. Ms. Hennessey i think one thing thats important to separate out is the rhetoric, the way the government talks about leaks and what happens in practice. We see it from both sides of the aisle, very strong terms, incredible irresponsibility, obama took a lot of hits for it, certainly george w. Bush took very strong criticism over the protection of classified information. And theres always been this sort of, you know this righteous indignation in terms of how we discuss leaks in the public. The actual ecosystem of the federal government in general and not just classified information but sort of that larger body of sensitive, private information thats not meant for public disclosure, the more nuanced ecosystem, right. So we know that the government, there is authorized leaks. There are quasiauthorized leaks. There are people like snowden who dump a lot of source material. We want to at least think about what repercussions might look like. Its important to sort of put them in the context of understanding where on the spectrum, and also one of the most recent prosecutions related to leaks is actually general cartwright. Who had pled guilty and has since been pardoned by president obama for confirming a piece of information. That actually was a sort of quasiauthorized thing, he was authorized to have the conversation with the journalist, maybe said something he shouldnt have or didnt intend to. Then ultimately was prosecuted or pled guilty to a charge on lying to federal agents. And so this is, i think thats its a pretty good demonstration of the complexity of this space, its not just somebody, you know, going rogue. Its not necessarily somebody blowing the whistle. Some people have con contacts because theyre tiing to enhance National Security. A publication has a story they want to run with it, they might need additional context in order to present it fairly and accurately or in order to be convinced that certain peegs pieces of information shouldnt be brought to the public. So certainly its a very serious obligation. There are conditions quenses for having unauthorized contacts with the media, especially in the Intelligence Community, but its a little bit more complex than just, you know, have you leaked information or have you not leaked information . Theres lots and lots of moving pieces in this space. Ms. Gorman obviously the legal repercussions would vary. If its a good will leak or sanctioned leak or something thats kind of a rogue action from a Civil Servant, all of these would have different kinds of ramifications . Ms. Hennessey i dont think its necessarily intent based, did you have a good leak or a bad leak. Its not possible to investigate everything. Not everyone faces the same types of consequences. Just these, putting them in their appropriate context and its really leveled the mitigation, right so once the line has been crossed, agency does do a referral for investigation. What we usually end up seeing in terms of actual punishment is not necessarily for the disclosure of information on the first instance but for additional aggravating factors that occur afterwards like trying to hide it. Like the coverup being worse than the crime. Ms. Gorman would you be willing to include what you see as changes in term os they have Trump Administrations response to leaks . I know there was a discussion earlier about the Obama Administration sort of a line of not wanting to prosecute reporters themselves in some cases. Do you see that changing . Mr. Rowan you mentioned i was on the landing team for d. O. J. I have no idea what the Trump Administration wants to do about leaks so i dont want you all to misunderstand. I think as a general matter, every administration has struggled with this and its not just the Obama Administration that set out and said, look, our focus will be on the leaker, not the media outlet that received the information. And thats one of the challenges of leak investigations is that you have this person, the reporter out there, that is d this remarkable source of information about where they got their leak from but the investigation works around that person. And that was true in the Obama Administration and before that. Its a a longstanding policy that d. O. J. Adopted i think at the beginning because they didnt want to suffer a statute that might encroach upon their investigative prerogative so they put in place a policy that requires the ausas to come to main justice and get approval from the attorney general before hey subpoena a reporter. And that policy is part of why we have seen so few leak investigations over the years. Nd its a very real check on e investigative zeal of an agent or prosecutor going after a reporter who they see as having all the information. I dont think that will change. Within that process, there is a judgment call that the attorney general makes. Where they dont have much in the way of constraints except a sense of how to balance National Security versus freedom of the press. And so, could an individual attorney general strike that balance differently than another one . Im sure they could but theres a long sort of institutional tradition there of taking that very seriously and i wouldnt expect that to be discarded very easily. Ms. Gorman woodward seemed particularly concerned about attitudes changing toward reporters. I dont know, marty, if you have thought about this as well but the idea that that might inhibit some reporting to the extent that they feel that there could be some kind of challenge or that they would be in fear of . Mr. Baron i have no idea what the Trump Administration might do in the case of a leak investigation, whether they well see if they only go after, try to go after the leaker or try to go after the reporters. I think we will have to wait and see. I hope theyre not coming after, would certainly be my strong preference that they not come after reporters and i dont think that they should. You know, theres also there are also issues about how justice pursues such an investigation. The Obama Administration put in some guidelines about, you know, what sort of rules that would govern subpoenas of reporters phone calls and things of that sort. I would hope that the administration would continue to follow those guidelines, which were the result of some extensive conversations with media organizations arising out of their investigations of leaks received by james rosen of fox, jim of New York Times and several others and the a. P. And so but you know, when attorney general sessions was going through confirmation hearings, he was asked about that an he kind of ducked the question and said he hadnt really studied it and he didnt really know. So we dont have an answer on that. As to how we would do reporting, i think wed continue to do the reporting the way we always have. I dont think anybody, certainly at the post or other major media oorgnyizations feels intimidated in any way. We feel that we have a job to do, that were going to continue to do that job and everybody comes in every day with the idea that theyre just going to do their job the way they did it previously. No matter what the pronouncements are that come out of the administration or the president himself. Ms. Hennessey to follow up, one reason for the sense of anxiety, we havent seen anything from the administration beyond some errant statements here and there. But the protections here are normative, not legal. Theres not a statute that says this is what the Justice Department can do or cant do. Theres a great deal of discretion. They couldnt investigate everything if they wanted to, so that norm of not only prioritizing political opponents, or embarrassing leaks, the Justice Department rules, which are discretionary, right. They could theoretically alter them. I think a little bit of sort of the concern is matching that sense of, theres a little bit of vulnerability because theres not kind of clear lines here. Paired with an administration that has prided itself on, you know, breaking norms and not having as much sort of respect for those institutional sort of independent norms we rely on a lot. I think thats led to a little bit of a feeling of anxiety, we dont yet know if its justified or not. But i think its a recognition that really what were talking about here is not some legal protection, its sort of respect for the institution, respect for the institution of the press. Respect for an independent department of justice. Those kinds of things. Theres a those are really st matters of agreement in a public, civic virtue. Thats where some sense of concern is coming from. Ch ms. Gorman i agree. I know, marty, you said were not at war with the administration in some kind of oppositional sense. Thathere have been claims, the press is the Opposition Party. Ow do you see that sort of new paradigm even if only coming from certain people at the white house that, that doesnt affect you at all . Susan, the lawfare blog a lot of people are going to that niche journalism to figure out things like the executive order and all the Different Cases that have been filed now and to kind of parse for lay people how this works, how it all plays out, how they might look to the future and in some ways, you are a media outlet and then thus members of the Opposition Party as well . Ms. Hennessey we occupy a little bit of a different space. I guess were a media outlet in some sense, but were not journalists, were lawyers that have been having very technical conversations among the National Security bureaucracy. Its been a very interesting, technical conversation between a very passionate couple of dozen of sort of, more than that, but a relatively small group. There is lots more interest from the outside. I think theres a hunger for expertise and also hunger for the presentation of primary source material. I think the press plays a little bit of a different role but certainly lots of different forms theyre having to navigate whatever this new sort of place s. The messenger i was only asked once, i said were not at war with the administration, were at work. Thats what were doing. Were doing our job. Were doing it the way its supposed to be done. I think weve entered dangerous territory when being independent, which is what we are, what we should be, what we will be, with being independent when being independent is portrayed as the opposition. I dont think being independent is the opposition at all. And you know, we would if Hillary Clinton had been elected president , you can be sure we would be applying all sorts of investigative resources toward her administration as well. As we actually did during the campaign, contrary to lots of statements otherwise. And so you know, were independent of her campaign. Were independent of the Obama Administration. Were independent of the Trump Administration. And being independent does not make you the opposition. And i think that its disturbing. That being independent is now portrayed as being part of the opposition. Its sort of it seems like a domestic version of, you know, after 9 11, george w. Bush said something along the lines of if youre not with us, youre with the terrorists. It sounds like that on the domestic front. So were not, you know, were them in the sense that were part of them, but were not terrorists, were just doing our jobs. Mr. Rowan the idea of the new paradigm, i think its important to recognize that while this has hit very quickly in the new administration, its not a at all unusual for an administration to at some point suffer, it feels, harm, through leaks and to all of a sudden be tough on leaks. Its not at all unusual for somebody like a Senior Intelligence official to come to d. O. J. And say, we send you all all these crime reports. We report all these leaks to you. Why havent there been any cases made . That pressure on the system has certainly existed before and i, you know, obviously i recognize that that the amount of that pressure can vary, but theres there is a process in place, these investigations are done by the same people that did them in the Obama Administration and there are challenges that dont that dont change. Regardless of how badly the president or the Administration May want to see a leak case made, there are a lot of hurdles that have to be gotten over and those are still there. Elfers i missed mr. Talk, the idea of consulting an attorney in advance is an interesting one. One of the problems anyone involved in a leak investigation has to worry about is whether or not they get charged with a crime is, you know, the terrific stress and potentially financial cost that they may suffer in the context of just dealing with the investigation itself. And thats probably not going to change. Ms. Gorman losing a clearance, perhaps . Mr. Rowan losing a clearance is killer but even before them, having to hire a lawyer, having to worry, having to go home to your spouse and tell them that, you know, the f. B. I. Called and want to speak to me next week. And those are really challenging things regardless of what happens when the investigation inally shakes out. Mr. Baron if i could just add, i think that, even during the Obama Administration, as a rule of their leak investigations and their concern that, you know, that information was being given in an unauthorized way to the press, there were so many people in that administration who wouldnt even talk to the press for fear that they would be subjected to a leak investigation. And that they would have to incur these incredible costs. Normal conversations that you would have to sort of explain policy and things like that, you know, people in government were saying, dont ever call me. Dont ever send me an email. Because that would subject me to could subject me to an information and its going to cost me a fortune. Even though im not leaking you anything, the very fact that i spoke to you is makes me a suspect. And i think that that is a thats a you know, a concerning environment for our government. That so many people in government would be terrified of even speaking to the press in an rdinary fashion. Ms. Gorman the idea of the Civil Servant trying to figure ut his or her role with regard to the oath made to protect and defend the constitution to all enemies foreign and demest ex. So i understand what youre saying about Civil Servants not wanting to be implicated, maybe not feeling some kind of need or onus or his or her part to release information but what about those people that do . That see themselves as defending. So in some cases people argue that they saw sally yates doing that. Defending the people, defending the constitution. As opposed to sort of having an allegiance to the administration or even to her role in the sense that she was connected. And those independent actor, Civil Servants seeing themselves as needing to come forward, whether theyre leaking or providing information or having some kind of connection. Do you think that thats changing now . Hat has potential to change . Mr. Baron its preble better to ask people who have been Civil Servants. Ms. Hennessey in discussing sally yates letter and resignation or firing, theres a difference between sort of the career Civil Servants, which are not political appointees, and political appointees. Yates talked about a little uncertainty, he was an Obama Administration appointee who had been held over. So theres a difference in those two groups. And theres a difference between classified information and private phone calls. The president s phone calls with a foreign leader. Some of the things that were heard about, the chaos of the curn administration that dont touch on classified material. Most Civil Servants take that oath to heart and really mean it, mean every part of it, that the allegiance is to the constitution, not to a president. That their allegiance is, its it transcends politics, necessarily. Whenever we talk about leaks or disclosures of classified information, its often leakers often use these grandiose terms, sort of terms of personal conscience. We hear edward joeden talk a lot in these snowden talk a lot in these terms. But no one person has all the relevant facts. Whenever your participating in a system where the information is highly consequential, right, theres information that, you know, the consequences of leaking can be peoples lives, or sensitive military operations. This is a high stakes area. The problem im sort of the problem with the notion of everybody going off on their own and making an independent judgment about how they discharge their duty with regards to classified information is that theyre substituting a personal judgment for sort of the judgment of a relatively well developed system in deciding what information needs to be secret and what doesnt. Its challenging because there is an overclassification problem and there is ambiguity. Information thats classified that does not actually fall in the categories of a grave harm to National Security or some harm of National Security its just lots of different bureaucrat expressures. But when we get to that sort of core part of the information, you know, we really dont want every Civil Servant going out on their own and making an independent judgment. We want a system thats informed because this is a high stakes area. I do think we should sort of be careful in terms of how we talk about discharging that oath. Yes, the oath is just something is to something larger than a single administration. Sometimes the courageous and morally correct choice is actually transgrezzing the law in very limited circumstances. Ms. Gorman i think thats a discussion people are having, with regard to elsburg, thats a choice he made, the government he felt was not doing something that made sense to him he quoted Chelsea Manning saying i realized i was participating in something i didnt agree with, didnt sit well with my conscience. Its not an encouragement, necessarily, of Civil Servants to go rogue but with regard to examples like snowden, manning and elsburg in this case, is that not something that you can imagine people are thinking about these day, the repercussions are severe and fwrave, weve already talked about some of the legal implications. But how do you see that playing out if Something Like an elsburg were to the side, i dont have faith in the system, that this is this sort of mitigates any issues that might upset me. So i need to do something here because i feel like im being compromised in terms of the oath ive taken, how do you see it playing out in the future . Mr. Rowan there are whistleblower protections in the law but they are also very limited in the National Security space. And i think, you know, the instances where that issue has been raised with folks like snowden and manning, they have not seen that as a viable option. So, you know, i think that just to recognize that thats an arguable route that folks dont seem to find very attractive. And again, i think in the National Security world, its a very hard tissue its very hard, hard to fit yourself into that. The other thing i would say, to sort of state the obvious, theres no sort of Public Benefit defense in connection with a leak prosecution. So if you get yourself to the point of actually facing a prosecution, at least thus far, the court theres nothing in statute and the courts have not recognized some sort of defense, that i was doing what i thought my conscience and the constitution dictated. Now, there may be a time when that defense is sort of created because of the compelling circumstances of a case but its not there now. Oh do Civil Servants think, my gosh, what am i going to do . I cant sit by and watch this happen . I think they do. I think they have in the past. I think some will in the future. It is interesting to think about hether or not the whether the kind of quick spate of issues here at the beginning of the administration would sort of encourage that because people think, well, you know, maybe weve crossed a line and this is more accessible acceptable now than its been before. Obviously from the perspective of an administration and the National Security community generally, they want to push back against that idea. They really want to discourage the idea that, ok, were now at a new space where its a little more accessible acceptable to do what your conscience dick kate dictates. Ms. Hennessey most people because of the president s press conference yesterday and the events of the last week or so are talking about leaks in egard to the former National Security advisor, Michael Flynn. In all likelihood it was pursuant to fisa warrant that would render those calls classified material. Obviously that was made public. It was given to the press. Its pretty clear at this point that there was an effort to bring it to the administration, right, so sort of early briefings. And then it appears that what was sort of the motivation for the leaks was the administrations failure to recognize the concerns of the individuals that were career Civil Servants and also false statements to the public. Thats something that i think will start to become more of a pressure point, or may encourage really, you know, not unprecedented behavior but certainly an unprecedented scale, were see manager leaks than we ever have and the rate is astounding. And then it really, its going to be in response to how we hear the administration talk. I do think if there becomes a sense that the white house is not accurately representing things, that there will be more of a tendency to try and alleviate that pressure. There is also the tension between sort of the need for secrecy and security and the right to know and legitimacy and sort of the basic compact of the government and the people. Thats that is one mechanism to relieve the pressure and so hopefully we will see a little bit more responsible rhett reck moving forward. If that continues to be a sort of persistent feature in this administration where theres a belief that the political levels are not just not being forthcoming but also affirmatively lying to the public, i do think were going to see really an unprecedented amount of leaks. Those will have security consequences. We shouldnt pretend as though because we happen to agree with the persons motivation, there arent actually consequences to these things. There are. But i dont think were going to see sort of it slow down until we see it change see a change at the top. Ms. Gorman marty, you talk about the post will keep doing what its always done, youre not in opposition, doing the work youve always done, but what about the current context of some kind of claims that mainstream media, newspapers like the Washington Post, are providing news that isnt based in reality, that its alternative, that you have maybe other Media Outlets that are providing oppositional information in some ways, how does the post and just the post then deal with this kind of context where mr. Baron when were being accused of fake news . Im very tempted to respond like, whatever. Theres nothing to it. The fact that its lets take these the stories written about the National Security advisor, flynn, i mean, they were entirely accurate. They havent been contradicted. Theres, you know, when you say, the leaks are true but the stories are fake news or whatever the line was, its it doesnt make any sense to me. The story were accurate in every sense. They continue to be so. And i think they have served a public purpose. Heres one who lied to the Vice President apparently. And certainly didnt tell the truth to the american public. And on a matter of real consequence. And so i think this makes the case that sometimes these socalled leaks serve the Public Interest and it serves the Public Interest for news organizations like the post and others to publish this information and to provide it to the american public, the Accurate Information to the american public. Thats what we ought to be doing. Ms. Gorman pat, can you help explain to us in terms of changes since 9 11, the patriot act, changes in surveillance of the American People and the general sort of increased digitization of information, how does that affect work within the department of justice, for instance, with regard to information that classified information thats been leaked . Mr. Rowan theres a bunch of different impacts, some of which are proprosecution and some of which are antiprosecution. Among other things, one of the results of the reworking of the Intelligence Community after 9 11 is, there was such a push for information sharing and that means that in the context of a specific investigation, the number of people who may have received the classified information has dramatically expanded and thats obviously one of the keys to having a successful investigation is starting off with a relatively small number of suspects. So information sharing has made arguably the governments National Security efforts generally much more efficient but it has made it harder to investigate a leak. Not so much because of 9 11 obviously but just the increasing digital nature of our world, there are many more digital records of everything thats done an theyre much more easy to get ahold of. I assume that in the past a Government Official could sit in his office and use a landline in his office to call a reporter and speak to him. And now that official, they if she chooses to use her cell phone, shes she vee ates a digital record that didnt she creates a digital record that didnt exist with a landline. Theres a case involving a state Department Employee named kim who was in touch with james rosen. One of the pieces of evidence in that case, they were walking out of the secured turnstiles coming in and out of the building at the same time which obviously didnt exist before as a bit of evidence but now they can show, look, they walked out together and came back in together. A lot of little piecings like that that make it easier to identify the individual that may have met with the reporter and spoken to him that cant exist in the past. Ms. Gorman so when thenNational Security advisor flynn, he was preparing to be National Security advisor, he was on the phone, he would have understood that those conversations were being at least tracked or rorded recorded and in that case maybe it didnt change behavior but it must have changed the behavior of officials, Civil Servants and reporters as marty mentioned, some people are saying dont even email me, i dont want that connection. In what ways do does the idea system allow for the that people understand that theyre surveilled. So they have some culpability if theyre doing something that can be traced. Mr. Rowan well, i think the key thing that you see is that its harder to lie to the f. B. I. And you see a lot of cases where the problem is that they lie and its easier to prove the lie than it ever used to be. Past, mption is in the the f. B. I. They say, its 50 people that knew about this classified information. Were going to talk to them. Were going to meet with this did you meet with this reporter . Did you speak to this reporter . Do you know anything about this . I assume in many instances people who had leaked would say, no i didnt speak to them. Now they need to be much more aware that not even not even the content of the conversation but the fact of the conversation is much more easily provable by getting ahold of the officials phone records and showing that he or she may have talked to a reporter or at least called that number thats associated with a newspaper or something. So for that so thats certainly one piece where its changed. Ms. Gorman i think people in pop culture, you watch 24 and home lan and people assume that not only does the surveillance but actual conversations are being detailed. Is there a sense, do you think people look to the media and to the government in general as of understanding that this is all known and there needs to be more transparency because of this increased surveillance or increased digitization of the way that people are in contact with each other . Ms. Hennessey just to put on my former n. S. A. Lawyer hat, its important to note that flst no indication or allegation that Michael Flynn was being targeted or recorded. Its within the scope of the governments lawful authorities to target a foreign power under certain circumstances, its not unusual for United States officials that interact with foreign powers in the conduct of their duties including sometimes in transition periods to be intercepted, thats incidental collection. And so i just think it would be a mistake to generalize that because a very limited subset of conversations might be picked up in the ordinary conduct of the governments foreign intelligence mission, that that means that people should assume their conversations are recorded everywhere or that theres no prifecy in the context of communications. The other thing is people who hold clearances, work on National Security matters, consent to a series of rather detailed monitoring. Theyre given a lot of information about where they are observed and how. Thats sort of, thats one of the conditions, youre vested with a great deal of trust in being given this information. So one of the, as sort of the ways you reciprocate is both by undergoing the clearance process and poly fwraffs, its an invasive process upfront, but also agreeing to that ongoing monitoring ching thats actually being done on a consent basis, where youre agreeing to it. Ms. Gorman what do you think bout that . Mr. Rowan i dont mr. Baron i dont disagree. But in terms of being able to track where somebody is, its much easier. If somebody has a cell phone, you can see where they are at any time. Different apps have information that tell you where they are. If youre using uber, they know where you are right now, so they can show up and peck you up. Other apps have that as well. Plus there are cameras all over the place in a lot of places we dont notice them. In a whole range of ways its easier to track the movements of people in a way that didnt exist decades ago, a few decades ago. And that makes, i think, it makes it more difficult for someone in government to provide information to the press and more difficult for the press to sort of try to obtain that information. So i think its a much more difficult environment right now. Do you think it makes the public want more transparency in general . Mr. Baron its thoord know what the public wants sometimes. I think there are segments of the public that want more transparency. Theres people who believe, for example, that the opposition the report that was done by British Intelligence officer that was circulating around washington, that that should have been, we should have just published that, made it available as soon as we got it. We did not do that. I mean, ultimately, buzzfeed did publish that document after cnn reported that the president himself was shown that. But we didnt do that. And we wouldnt do that. But i think that there are people in the public who criticize us for not having just made that document available. But we felt theres a baseline of verification that needs to take place before we would do Something Like that. But there are people who believe that were part of the problem if were not releasing that information. On the other hand, another segment of the public believes were part of the problem because were receiving leaks and things like that. An they dont want that level of transparency. Particularly in a time of threats to National Security, terrorism and things like that concerns particularly about terrorism, domestic terrorism. People are tend to favor more security. Ver transparency and even over privacy. Public opinion shifts from one time to the next. When the snowden stuff came out, i think there was a sentiment, a large sentiment among the public for there was greater concern about privacy and then as terrorism became a greater concern, there was more concern about security and less concern about privacy and polls actually show that. So Public Opinion can swing and a lot dependsen which segment of the public youre talking about. Ms. Hennessey is it still viable with the new technology now . Mr. Rowan i dont think that the changes in technology have affected the espionage act in terms of us use as a tool. The problem with the espionage act is its a 1917 statute and as a series of a, b, c, d, including some targeted at classic espionage and some which are more useful for a leak investigation in that it is a disclosure of National Defense information by someone who is authorized to receive it to somebody who is not authorized to receive it. Every time that theres been any serious effort to look at this, i think the conclusion thats been reached is, this is too complicated and difficult to fix it, both from, you know from the governments perspective there might be a desire to make it easier to prosecute these cases, have more of a strict liability. If you disclose classified nformation thats a crime. Theres concern about that kind of statute and how it would dramatically restrict some activity that we all think is appropriate. For a lot of reasons, people dont think its beneficial to really dig into this to try to reframe a new statute. Theres nothing about the digital age that has made it less useful, its just the challenge of using an old law that wasnt particularly written for these kinds of problems and certainly doesnt have the defenses in it that some people might want to see in this year for this kind of activity. Would it make sense to revise . Do you see an appetite for that, to revise it and bring it up to date . Ms. Hennessey i would be surprised. In terms of the way sort of the digital revolution interacts with this stuff, the way we think about these things. So the past weve always taken the approach that press should publish anything thats accurate and news worthy. It should be true and it should have some public relevance to a private fact about you. If thats not news worthy then it shouldnt be published. And something that is news worthy but may or may not be rue. Thats how we arrived at this point. One of the challenges of the massive scope of where nformation is aggregated, they give information to the public in a different way. If we look at, for example, Hillary Clintons campaign anagers emails. Its being distributed for their positions. Act i measures or other forms of spionage. Is difficult question wikileaks any different from the New York Times or the Washington Post. Is there and now we have the ability to take lots and lots of information with the individuals receiving it dont necessarily know who is producing it or for what reason, should it be the asic journalistic processes or is there an additional obligation because we are going to be seeing these form of leaks happen with more frequency because there is lots more information. And the ability to understand who their source is might have changed. Not only the post enjoyed a honeymoon period. So do you see a resurgence of in terms of people. The press and the times increased subscribers. I was reading sandys book before and i was struck by the similarities of what is happening now. There is a surge of subscriptions coming to organizations like ours, the New York Times, wall street journal. Gotten a surge as well. A number of news organizations and internationally reporting like the financial times. And many of these come with notes and glad we are doing what we are doing and want us to do that work and particularly interested investtive work and do believe that the government should be held accountable. And they now feel that they can no longer take the work we do for granted and actually support it. And putting their hand in their pocket and buying a subscription. And we appreciate that. Because it actually is necessary to have the resources to do this kind of work. And so i do think there is among a segment of the population, an increased confidence in the media. However, my concern is that i think we should have all of us who work in the media should be confidence in the level of our professions which had been at historic low points. But there is a wide disparity among the people who are democrats and republicans and dropped dramatically particularly over the last two years over this campaign. And the latest gallup poll among republicans is 15 and not totally impressive 25 two years ago. And i think the confidence levels among democrats is in the 40s, somewhere like that. Overall, we are in the 30s which is heartbreak. We are above congress and big business. Ut that is not impressive. We are seeing among the population increased in confidence of what we do and willingness to support the work we do. Increased competence in lawyers. In terms of going to seeing them as a bulwark is in some ways that shifted, i would ask all three of you to say what you think of when you think of the pentagon papers and the decisions that were made, the repercussions and talking about manning and snowden and the idea of leaks in general, what do you see as the legacy . Well, i guess i think that they really pentagon papers and the issues that sort of came to the fore during that time really laid the road that we have been traveling on ever since. I mean, its kind of remarkable that, you know the main criminal statute that might govern this kind of activity is from 1917. The pentagon papers was some years ago and here we are now, the legal landscape hasnt changed much since then. And i would say not only the legal landscape not changed much, but the approach that the Justice Department follows is about the same as it was. And so its a pretty powerful set of events that has laid out a path that were still on today. Interesting. Ok. There is the beginning of a process that has been dramatically altered by manning and snowden in the past. A couple of years. And i think there are two features of the legacy that sort of looksee how they play out. And the focus on the personal integrity of the leaker, him or herself is something that has been an important part of our the way we understand and conceptalize historical leaks. Was the person good or bad. And that has really framed the way people come to understand events that occur. I think more and more as these become more common, pentagon papers is a historically rare event and unusual thing that could stand on its own. And as we see more frequently, i hink the how we address the notion that people are complex and have different motivations isnt necessarily clear and we might have to disentangle the leaks from the integrity of an individual versus is this a good thing or bad thing and how we want to think about information and legitimacy and public transparency and those kinds of things. Of endulum swing in terms the adversarial nature of the press and the government. And the moving from a press that was willing to run a government asserted in National Security interests, you cant disclose this because someone will die. It set in motion the notion of the press of wanting to see the evidence and evolving the relationship of ok, there is a responsibility to be careful and treat this information with appropriate sensitivity. Now you see journalists saying, k, you said ok if i publish this, prove it. Show me something. And more about challenging adversarial posture, which may have scenes in the past or recent past and those who felt comfortable with the Prior Administration versus this one. We are really going to see the importance of the role of independent journalism in our National Security and thats actually, they play a really, really Important Role in not only public transparency, but in constraining those choices and ensuring they are carefully made, because that little thing in your head that someday this is going to be on the front page of the Washington Post i think really does influence the way government attorneys and people in government think about their work. You know, i think were about to see a lot more of these things and so having that historical Reference Point is going to be important. Makes sense. Great. When the whole pentagon papers case was taking place, i as in high school. Prior to the pentagon papers case, that had had a Chilling Effect on the press. And he cites in the book, aclu reports that said the press went from an extreme level of security prior to the Nixon Administration to an extreme feeling of vulnerability and that has resonates today in some ways. Its very important that we make sure there is no Chilling Effect today. You know, and i do think that the pentagon papers case had an impact of all these decades since by energizing the press and reminding the press about its Public Service role. And i think that the press has tried to pursue that Public Service role, perhaps more aggressively in the years since than it did in the years prior to the pentagon cases. You know, when i was thinking about this, as i was looking at the pentagon papers, i was saying looks like an easy decision to publish compared to the things we are dealing with today, it dealt with the history of the vietnam war and involvement in vietnam. And it was kind of a history report. Report. It had regulatory information, but didnt involve Current Operations. And so some of the kinds of things we have been dealing with and talking about here today, the disclosures have involved Current Operations and i think hats a much more difficult much more difficult territory. One of the defenses on the pentagon papers was that it involved historical information. I do think that the pentagon papers case helped obviously establish the idea that there shouldnt be prior restraint by the government, but even thats qualified because as has been pointed out, there was some allowance for some prior restraint and lawyers since have pointed to that to say, this ruling is not a complete victory for the press on that front. You know, and i think that the case doesnt really help us very much in post publication. So there were some threats even to Katherine Graham and i dont know if they were valed or not valed, but there were statements that the administration said werent threats but sounded like threats that the Washington Post could be prosecuted for publication of those papers, notwithstanding the Supreme Court ruling in the case. And there have been other instances where people have been threatened with prosecution. So obviously the case was helpful. I think it helped set a framework for the press in the decades since, which has been. Elpful questions. Thank you. On the actions of f. B. I. Director comey two weeks prior to the election and his inaction when the information came out about Michael Flynn and f. B. I. Wont be investigating him, do you have an opinion on the apparent poll isation and the effects it could have on potential leaks . An easy one first. I think its a very dangerous path to work to go into the motives of people when we dont have the relevant information. One way to know whether or not you have active enough fairway is when both sides are equally angry at you. If we look at director comeys action throughout the totality of the campaign, both sides were equally angry. That doesnt endorse or condone a particular decision. But one thing i do think is troubling is starting to hear this rhetoric that was set by the Current Administration itization t the poll of the f. B. I. And we should be inherently suspicious of these things. That will not help us defend our institutions that are under attack. It does highlight the importance of not just a functioning for the press to understand what is genuine leaks and false leaks. One thing we saw after the leak of comeys letter, that letter was to congress and not to the public, there were a series of stories that were false about s state of Hillary Clinton emails. They are falls or untrue leaks or potential consequence as true one. And there were early reports as part of the inauguration about the existence of these phone calls and the content and maybe a leaked story, no, no, he has been cleared. The f. B. I. Said there is nothing there. And that ended the inquiry until there was this later revelation. I think we need to take a step back of career Civil Servants trying to do their job instead of political appointees or the government trying to discharge their duties. I think it is necessarily saying this was done to help one candidate or the other. Thats a serious allege and one we should be pretty careful and conservative before we make. We dont know if it was politicized. I dont have information that there were political decisions that comey made. People in the public and people within the political arena have made accusations, but we are not in a position to say that was the motive at all. The other thing i would say is that just like any other organization, the work is done by people at a much lower level, and that work bubbles up in the state that its in. So making a political decision about a matter like that is complicated. Even if a person has an ill motive, these facts are boff them and they exist. And its very hard, i think, to sweep that aside and say we are going to do x because this is what we want to. The people in the f. B. I. Feel strongly about following the rules, not just the law, but following the standard practices of how they conduct an investigation. Am not quick to assume that it would be very easy for someone at a senior level to make a political decision if the facts were to ush them in another direction. The press are up against all kinds of obstacles to bring the truth out. First of all, i would say, there are a lot of reporters doing their job today. This this somehow at the time of watergate, you had great reporters who did their job and today, reporters who dont do their job, just is not true. The media institutions have a lot more security and resources and things like that. Although, the people who are on the networks are concerned whether their licenses would be renewed and things like that. Think that so it certainly helps to have strong media institutions. Congress and whether there are investigations, if there were a democratic majority in congress, you would see a different set of events as things unfold in a different way and at a more rapid pace. But, you know, this is what we have. Internet environment is concerning on a lot of levels. And deeply concerned about the spread of false information and also just about people gravitating only to sources of information that affirm their preexisting point of view. Both of those are concerning. We see People Living in their own parallel universes, information universes, they dont intersect and hard to find common grouped and hard to find Common Ground in a democracy, yes im not helping you here, but its very hard in democracies. There was a time we agreed on a basic set of facts and disagree of the interpretation of those facts and prescription for solving the problem, but we agreed on the facts, what happened yesterday. We could agree on that. Now we cant. It was the late senator moynihan who said you are entitled to your own opinions but not entitled to your own facts. People believe their own facts. You have your facts, i have my facts. That is problematic for a democracy. And i dont know what we can do about that. Im concerned about that. And i dont think its helpful when we have politicians who endeavor to not just criticize s, not just marginalize us but delegitimatize us and dehumanize us. I dont think it is helpful. Whether it is the government, government institutions or others who are pillars of the society that we have and the democracy that we have. And that is what is happening today, unfortunately. Ot terribly helpful. You touched on earlier about congress unwillingness or indifference to conduct an investigation to investigate the leaks. Given that seems like more is on the burden of the press to conduct the investigation and therefore its possible and more leaks will come to the press as the investigation takes place. Can you talk about the consequences of that . There are two strains. One is investigations into ties between the president and his associates and his ties to russia. That is a broad bucket. And sort of related to that investigation that go in both directions. The senate has formed and taking on an independent investigation and a number of congressional committees are as well. Some people called for a bipartisan commission, something that looks like the 9 11 commission. That might be a good idea. The important thing is that the investigations that currently exist have two features and one has subpoena powers and force the government to produce tangible objects to them. And it is there is a transcript of these calls. And bringing forms of evidence to the public. Thats significant for the independent investigation. And the executive branch might not fully discharge its functions if someone is worried about that. The committees have the ability o review highly classified information. Use National Security rationale to prevent information going forward. And the third piece that is critical and we dont know if we have it is a bipartisan motivation to get to the bottom of this and get to the truth of the matter. And so, we have seen hopeful signs from senators Lindsay Graham and john mccain and others. The more we hear from both sides of the aisle, discussions about the place of prepolitical commitment. This isnt beating the administration but something is happening here that is threatening our basic institutions and the things that we put before our policy preferences, these investigations will take a long time and as people require some political fortitude and what remains to be seen is whether or not congress has that sense of courage and responsibility to discharge its constitutional duty here. And we have seen some good signs and bad signs. It will not be a note of caution that this will not be a short process, and talking about these investigations for a very long time. Where are the question will be, what they find will be shared more broadly. And i think theres going to be a lot of pressure on them, both from the media, from the hill to share that information. So there may be more that is learned about what they actually learn. Two more questions. Yeah. Im a junior here at georgetown. I wanted to ask, because the digital age has made tracking easier or covering and hacking easier, do you think there might be a regression or a return to more oldfashioned forms of communication within agencies or between journalists and their sources . If you ever looked at foia documents from the government, and the last thing on that email chain will be, can you call me . We are adaptive organisms and people looking to seek out privacy and have conversations that arent recorded pursuant to the public records documents, you know in their private capacities. That is a natural instinct, how successful it will be and how capable we are of outing out me sort of produce i believe evidence. And personal relationships. Yes and no people and trust people. And the core and understanding who is responsible in the media and the government. That is going to be important. Actually, i would be interested in hearing what you have to say particularly about young reporters, because we all have this stereotype of younger people not used to speaking facetoface or on the phone and want to send a texan whether or not that affects how young reporters report. Im concerned about that. I would welcome a return to some of the old habits of telephone calls, meeting people in person. You know, we need to go back to that. I think it facilitates better communication and what people are saying rather than responses to emails and things like that. I think thats helpful. Everybody is much more careful of what they put in emails. We encourage everybody to be, because, you know, a determined hacker can get in anywhere. We can see that. And we have to its important that people have more safeguards on email and access to their Information Systems and things like that. Interesting, it was to me, the New York Times when they got sore pages of trumps tax return, it was sent by mail and rather than someone faxing it. Anybody use fax anymore . I dont know. Or sending it taking a picture and sending it by email, but used oldfashioned email and put the wrong address on there. And should have put 1301 k 20001. Ashington, d. C. , it was returned to old ways of providing information. But i think the problem is there are engrained habits and the habits are to use email and people feel comfortable with that. But if there are more leak investigations and more concerns about hacking, i suspect people will be much more suspect of how hey communicate. Im about to gaut from the university of kansas, majoring in journalism. And i find it be willedering, going back home and talking to people. There has been fantastic reporting about taxes, Michael Flynns connections to russia and stuff like that. And talking to people that they dont care. And that it seems like shiny objects are being thrown out all the time that buries this stuff. What is it going to get a story to stick and not get knocked off prime time by like Arnold Schwarzenegger or something . I dont know, actually. Im speaking at kansas state in april and im sure it will be interesting to hear what kinds of questions i get, especially since im supposed to talk about ethics in journalism. I think these things do stick in some ways. We have to take the long view, not to make that are comparison with the present day. Watergate, the investigation was under way and nixon got reelected. It was years and not something at happened instan kaine yousely. And people doing an investigation and we wrap this up. That just doesnt happen. I mean, look, when trump went into office, he had the lowest Approval Rating of any president ever, who upon entering office. His Approval Rating has declined. I think that i a reflection of things he has done and not anything to do with the press. And i think things have an impact over a longer period of time. And our job is to provide information to the people that need and deserve to know and make a decision. They are entitled to. And we have democracy. They should be the ones to make the decision. And i have absolute respect for that process. Its the same democracy that allows us in the press to do our jobs and publish what we think we should publish. And we have a system that works on its own ways and not a Straight Line always and we dont know what the impact is quite what we are publishing sometimes for years. Coming from the Intelligence Community and hearing the way the administration talks about the Intelligence Community and the facts, sort of a sense of bewilderment and one thing that is a striking thing within the Intelligence Community and you should know the truth and the truth shall set you free. That is a motto of that particular community. And i think it is an article that exists that binds the Intelligence Community and parts of Law Enforcement and the press. And the truth matters. And expertise matters and sort of being able to have the faith to be a really tenacious reporter or intelligence agent, someone who is finding the truth, whether it supports your political views or what its impact might be. To the extent that i have hope moving forward that i see that in a lot of different places and something about this moment has activated that sense in people and inspired young people. Young people entering intelligence. And i think its the one thing that americans share and its the way were going to have to find our way through whatever this next period is going to look like. It would be great that all of what is happening these days, people in the press or in the government or americans rededicate themselves to the value of evidence, the value of expertise and the value of experience. Well said. We have been lucky to have you join us today. Thank you very much. [cheers and applause] [captions Copyright National cable satellite corp. 2017] ick Nick Nick Nick earlier today cspan released the survey on president ial leadership which ranks every u. S. President on 10 attributes of leadership, a Cross Section of 91 historians and the results are now available on our website at cspan. Org. And on sunday, two professors and a historian are advisors on the project and will discuss their results. That starts live at 8 00 a. M. Eastern on washington journal