U.S. handling of secrecy works

Attorney General Alberto R. Gonzales has said that the U.S. government is exploring the possibility of criminally prosecuting The New York Times for publishing classified information: revealing the existence of the National Security Agency surveillance program. Apparently taking its cue from Gonzales, the House Intelligence Committee has held hearings on whether Congress should enact legislation to address this "problem."

By raising the specter of such prosecutions, the Bush administration is threatening a confrontation unprecedented in American history. For more than 215 years, the United States has managed to flourish despite the absence of a single federal prosecution of the press for publishing government secrets. The absence is no accident. It fulfills the promise of the First Amendment: "Congress shall make no law . . . abridging the freedom . . . of the press."

The First Amendment is not an absolute. The media may be held accountable for publishing libel, obscenity, false advertising and the like. As the Supreme Court observed more than 60 years ago, "such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

Government secrets are something else entirely. The publication of such information may be extraordinarily valuable to the proper functioning of a self-governing society.

Of course, there are secrets and there are secrets, so in exploring this issue, it is helpful to distinguish three different types.

First, there are "illegitimate" government secrets. In this category, government officials are attempting to shield from public scrutiny their misjudgments, incompetence, misconduct, venality, cupidity, corruption or criminality. In a self-governing society, it is vital that such secrets be exposed. What makes this difficult is that those attempting to cover up such conduct may invoke the claim of official secrecy. We know from historical experience that this happens all too often.

Second, there are "legitimate but newsworthy" secrets. The publication of such secrets may harm national security — and have substantial "value as a step to truth." For example, disclosure that our nuclear power plants are not secure against terrorist attack may have substantial national interest value even though it poses a danger.