Simon Review Paper #6

This paper was presented at the January 2007 meeting of the Association of American Law Schools in Washington, D.C. and is scheduled for publication in the Journal of National Security Law & Policy.


Unpopular wars inevitably lead to sharp conflicts between presidents and the press over the control of secret information. National security secrets find their way into print because government officials assigned to carry out questionable policies leak secret documents to reporters. The government responds to publication with threats of civil legal action and criminal prosecution. The Vietnam War produced the Pentagon Papers case in which the government unsuccessfully sought a prior restraint on the publication of a classified history of the Vietnam War. Now, Iraq-related cases have led to jail for some reporters, threats of jail for others and warnings of criminal prosecution for still others.1 These cases, taken together, threaten to criminalize newsgathering of national security secrets.