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Wh Owat Ches the Wat Chmen WHO WATCHES THE WATCHMEN WATCHES WHO WHO WATCHES THE WATCHMEN WATCHES WHO I see powerful echoes of what I personally experienced as Director of NSA and CIA. I only wish I had access to this fully developed intellectual framework and the courses of action it suggests while still in government. —General Michael V. Hayden (retired) Former Director of the CIA Director of the NSA e problem of secrecy is double edged and places key institutions and values of our democracy into collision. On the one hand, our country operates under a broad consensus that secrecy is antithetical to democratic rule and can encourage a variety of political deformations. But the obvious pitfalls are not the end of the story. A long list of abuses notwithstanding, secrecy, like openness, remains an essential prerequisite of self-governance. Ross’s study is a welcome and timely addition to the small body of literature examining this important subject. —Gabriel Schoenfeld Senior Fellow, Hudson Institute Author of Necessary Secrets: National Security, the Media, and the Rule of Law (W.W. Norton, May 2010). ? ? The topic of unauthorized disclosures continues to receive significant attention at the highest levels of government. In his book, Mr. Ross does an excellent job identifying the categories of harm to the intelligence community associated NI PRESS ROSS GARY with these disclosures. A detailed framework for addressing the issue is also proposed. This book is a must read for those concerned about the implications of unauthorized disclosures to U.S. national security. —William A. Parquette Foreign Denial and Deception Committee National Intelligence Council Gary Ross has pulled together in this splendid book all the raw material needed to spark a fresh discussion between the government and the media on how to function under our unique system of government in this ever-evolving information-rich environment. —Benjamin Shore Retired newspaper journalist and editor PCN273891 GPO Stock Number: 008-020-01606-3 Library of Congress Control Number: 2011930973 Who Watches the Watchmen? The Conflict Between National Security and Freedom of the Press Gary Ross National Intelligence University Washington, DC July 2011 WHO WATCHES THE WATCHMEN? Those who surrender true liberty to a false security defend nothing worth preserving, while those who abandon real security to an illusory liberty protect nothing worth safeguarding. - Ronald K. L. Collins, Author and Law Professor iii LLIGENC Gary Ross’ book, Who Watches the Watchmen?, argues that TE E N U I N I the tension between maintaining national security secrets and L V A E N R S O the public’s right to know cannot be “solved,” but can be better I I T T Y A N understood and more intelligently managed. entia est i l c u s x luc is 1962 Watchmen is the inaugural book in a new series titled, The NI Press Series on Denial and Deception. The series will present original research by faculty and students in the university’s Denial and Deception Certificate Program, as well as writings sponsored by the Office of the Director of National Intelligence Foreign Denial and Deception Committee. In August 2011, the National Defense Intelligence College was re-named the National Intelligence University. To reflect this change, the NDIC Press was re-named the National Intelligence Press. The goal of the NI Press is the same: to publish high quality, valuable, and timely books on topics of concern to the Intelligence Community and the U.S. government. Books published by the NI Press undergo peer review by senior officials in the U.S. government as well as outside experts. This publication has been approved for unrestricted distribution by the Office of Security Review, Department of Defense. The views expressed in this publication are those of the author and do not necessarily reflect the official policy or position of the Department of Defense, the Intelligence Community, or the U.S. government. Authors of NI Press publications enjoy full academic freedom, provided they do not disclose classified information, jeopardize operations security, or misrepresent official U.S. policy. Such academic freedom empowers authors to offer new and sometimes controversial perspectives in the interest of furthering debate on key issues. This publication is subject to Title 17, United States Code, Sections 101 and 105. It is in the public domain and may not be copyrighted. How to order this book. Everyone may download a free electronic copy of this book from our website at http://www.NI-U.edu. U.S. government employees may request a complimentary copy of this book by contacting us at: [email protected]. The general public may purchase a copy from the Government Printing Office (GPO) at http://bookstore.gpo.gov. Editor, NI Press Center for Strategic Intelligence Research National Intelligence University Defense Intelligence Agency Bolling Air Force Base Washington, D.C. 20340-5100 ISBN 978-1-932946-29-1 GPO Sales Stock Number 008-020-01606-3 Library of Congress Control Number 2011930973 WHO WATCHES THE WATCHMEN? TABLE OF CONTENTS COMMENTARIES ......................................................................................... ix FOREWORD ............................................................................................... xxiii ACKNOWLEDGMENTS ......................................................................... xxvii AUTHOR’S PREFACE ............................................................................... xxix CHAPTER 1 – Conflicting Principles ......................................................... 1 Where You Stand Depends on Where You Sit ........................................ 4 The Scope of Unauthorized Disclosures in the United States ............... 9 Researching the Topic ............................................................................... 12 Responding Through Law: The “Espionage Act” .................................. 15 Seeking an Alternative to a Legislative Solution ................................... 18 The Difficulty Identifying Leakers: A Thousand Grains of Sand ........ 20 Statutory Abuses and Efforts to Prevent Unauthorized Disclosures ............................................................................................... 25 Rational Choice Theory: An Alternative to a Legislative Approach ...26 CHAPTER 2 – Journalist Motivations and Justifications ...................... 29 Journalist Motivations for Disclosing Classified Information ............ 30 Altruistic Motivation – Promoting Informed Debate ...........................30 Pentagon Papers ................................................................................. 31 Bay of Pigs ....................................................................................................... 33 Altruistic Motivation – Exposing Government Misconduct ................34 i GARY ROSS TABLE OF CONTENTS (CONTINUED) The Family Jewels ............................................................................... 36 Colonel Alpirez ................................................................................... 37 Non-Altruistic Motivation – Advancing Corporate Interests ..............39 Pentagon Papers ................................................................................. 41 Non-Altruistic Motivation – Advancing Personal Interests ..................43 Veil ................................................................................................................... 45 State of War ..................................................................................................... 45 Collateral Murder .............................................................................. 46 Non-Altruistic Motivation – Advancing Foreign Interests ...................47 Journalist Justifications for Disclosing Classified Information ........... 48 Justification – Government Overclassification .......................................49 Justification – Continued Toleration for Politically Advantageous Disclosures ................................................................................................52 Pre-War Intelligence on Iraq ............................................................. 53 Stealth ............................................................................................................... 55 Justification – Inadequacy of Congressional Oversight ........................56 Justification – Legal Protection for the Press under the First Amendment ..............................................................................................58 Justification – The Ability of the Media to Handle Classified Information Responsibly .........................................................................61 U-2 ........................................................................................................ 64 ii WHO WATCHES THE WATCHMEN? TABLE OF CONTENTS (CONTINUED) IVY BELLS ......................................................................................... 65 Project AZORIAN ............................................................................. 66 Hostage Crises .................................................................................... 67 Pentagon Papers ................................................................................. 67 CIA Detention Facilities .................................................................... 68 Terrorist Surveillance Program ......................................................... 68 SWIFT Banking ................................................................................
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