carolina that is the everything belt. the stroke belt, the heart attack belt, the diabetes belt. what we are putting forth from a health initiative standpoint, i am passionate about it. i am running away from my doctor right now, but i am constantly trying to monitor and improve my on help be a the internet. . .

>> they sign up for it with an exchange. they sign a bunch of forms with dozens of pages. when there is an issue on such and such, -- when there is an issue on paragraph such and such, they have no recourse. the fees that are advertised should be what they are, and what you expect from your service should be clearly enumerated. you should know what you're getting when you sign a contract. that is important. commissioner mignon clyburn, first time at the "communicators" table. >> hopefully not the last. >> c-span.

our public affairs content is available on television, radio, and online. you can also connect with us on twitter, facebook, and youtube, and sign up for our scheduled alert e-mails @ c-span.org. >> this is "america and the courts." up next, national security, the role of the media, and how these competing issues get resolved in the courts. the university of texas law school hosted this discussion in february. >> i want to think the texas law review leadership and a number of others -- too many to mention -- all of whom worked incredibly hard on this project. it has come off with very few

hitches. i am very grateful for your efforts. i also want to thank our cost, the strauss center, for its role in putting together this wonderful event. we have been talking for more than a day and a half about the tensions that arise when we try to reconcile our values in relation to privacy, in relation to security, and in relation to technological change. technological change throws a curve balls at our efforts to pursue national security in a way that is consistent with our values. implicit in the discussion we have had -- we have talked about the role of judicial review, the role of congress in exercising oversight, the role of the public with electoral pushed back when certain policies are revealed. implicit is the idea that you know what is happening. insignificant part, you know what is happening thanks to the media. it is only fitting that we conclude with a panel that is

going to examine the role of the media in a world that is experiencing rapid technological, change at the heart of their industry. i am going to turn it over to my friend and colleague, professor david anderson. he is the centennial chair of the university of texas school of law. he worked as a journalist for several years before he came to law school. he went on to become the editor of "texas law review." david specializes in a scholarship in both torte and communications law. he is an interesting libel law and privacy. he is a contributing editor to "texas monthly" and on the editorial board of the texas observer. i turn it over to you. >> this is a very distinguished panel of media representatives.

i think we have at least two- thirds of the journalistic expertise on national-security matters sitting at this table. i am extremely pleased to have all of you here. let me start on my right. we have michael isikoff, probably the one of us who is the closest to a household name to all of you. he is the investigative correspondent for "newsweek." he covers national security matters but he also does a lot of other things such as presidential indiscretions and other, sexier topics. he is an extremely well-regarded correspondent in many fields. to my immediate right is mark mazzetti of "the new york times." he is a pulitzer prize winner. in this context, probably his story about the clandestine cia

operations are the ones that are most familiar. march is the national security correspondent in the washington bureau of "the new york times." to my left is ellen nakashima. she is at "the washington post." she is a national security reporter as well, with special expertise in privacy matters, or certainly a special attention and interest in that area. marc ambinder is sitting next to ellen. he is political editor of "the atlantic." i would say that almost everybody at this table is an online journalist as well as a print or broadcast journalist. marc is one of the pioneers of on-line political blocking. next is ari shapiro of npr.

ari does national security reporting, but he also has a broader portfolio, governing legal affairs all over the country and various kinds of legal controversies, including some of the jurisdictional questions that turned out to be particularly thorny in terrorism cases and who can try whom and where. at the end of the table, not least by any means, is judge robert sack of the second court of appeals in new york. judge sack was a distinguished media law practitioners for his entire pre-bench career, very highly respected. he has been on the court of appeals for the second circuit for least 10 years, maybe a little bit more than that. a very well thought of member of the federal judiciary. in addition, he is a scholar.

he has a superb treaties on libel and scandal. he continues to write a law review articles while he is on the bench. he teaches a seminar at columbia. i am very happy to have all these people here. we are not going to have been the opening statements. this is going to be a free-for- all. will try to break off and leave plenty of time for questions from the audience. we heard a lot the last couple days about oversight. a number of the speakers described at the oversight mechanisms that are in place internally in the executive branch and through the court to attempt to reconcile the privacy and national security concerns. but the american tradition is that the ultimate role of oversight belongs to the american people.

it is only to the extent that the american people are able to be informed about these matters that oversight works at all. i noticed this morning that prof banks mentioned that he feels frustrated by not knowing enough -- that there are just too many things he does not know about the way the national security and intelligence operations work. my first question to the members of the panel would be do you feel like you know enough about what goes on in the national security apparatus of the government to keep the public informed. do you want to begin? >> sure. before i say anything, thank you to "texas law review" and bobby for putting this conference

together. it has been a fascinating discussion by experts in the field. this could be amateur hour compared to what we have had before. i think it will be interesting. we are all proud to be here. in answer to your question, the answer is no. i do not feel i know nearly enough about what is going on. i have said before that covering national security broadly and intelligence specifically -- if i know 10% of what is really going on that is a major victory. so much of it is outside of my view, despite my efforts. and it will be. and i am never going to learn everything, nor is anyone here. even if we did, there would be a not we did not report -- there would be a lot we did not

report. the answer is that there is so much that we do not know. because we are in the dark about a lot of things, the public is. we go out every day and try to learn more and report it in a responsible way. we hopefully better inform the public debate. that is a quick answer. >> michael? >> let me associate myself with markc's remarks -- with mark's remarks. this has been a fascinating symposium and i have learned a lot. on mark's point, absolutely. we do not know enough on these matters we have been talking about. i will get in my particular couple of ploaudits for the role of the press and my particular

message, which like to spur discussion on. in terms of oversight, the basic problem is a continuing theme in government over classification. if you doubt that is a serious issue, just look at everybody who studied the issue -- study the problem over the years. tom kaine, after he was through chairing the 9/11 commissions, said three-quarters of what he read the was classified should not have them. if you want to go back further, there was a guy named rodney mcdaniel, who was secretary of the national security agency under counsel under ronald reagan. he told a commission that only 10% of classification was for legitimate protection of secrets. think of the implications of that for national security. everybody here takes a national

security responsibilities seriously. they protect secrets. they view that as a code of honor that the protect secrets. how many people who are cleared into these programs we have been talking about take seriously these kind of criticisms that have real national security implications -- over classification, how much that limits debate, how much that limits what we can know about and hinders a solution to the problems that we have been talking about. i can elaborate on those things, but i think it is something we should all consider when we are talking about cyber security and figuring out how to protect the country from cyber attacks. are the smartest people who are dealing with that issue -- is the universe of all the smartest people in the country who are

dealing with that issue encompassed by those who are cleared , or is there a range of people who could be brought in to try to solve that problem if we worked more vigorously on declassifying more information to have a vigorous discussion? >> in that connection, i am going to ask a member of the panel down here -- how much of what you know comes from unauthorized leaks? >> the best bits. [laughter] >> i want to offer my congratulations to bobby and the students for putting on a great conference. i have learned a lot these past couple of days. i wanted to sort of follow up on

what my colleagues here have been saying. i to feel -- i am too feetoo feo not know as much as we should. just on the topic of cyber security, which i have been looking at for the last five or six months -- i have spoken to a number of current government officials and former officials who themselves believe that there is too much classification in the field of cyber and that not only the public debate but the government itself would be better served if there could be a fuller, franker discussion about both the threats and in the area of -- this gets a little dicier, because now we get into the areas that could possibly be a cyber offense.

but think of the complications from not having a fuller debate. too often, the public discourse is shallow and cheapened. it defaults into familiar lines. nsa, big brother, once to scoop up all of our information. we're going to have a huge cyber pearl harbor armageddon if we do not do something. i think we really need to start to think in terms of what actually we are capable of doing, what we want to do, and what authorities we need to do that. who should we really want to have in charge of that? that would be -- i would like to make a pitch to the government officials who are out there, many of whom have helped me try

to understand this debate better. if you could try to think of ways to talk about this in a little more public, more transparent fashion, it would probably help build public support for what are necessary policies for funding cyber programs and for perhaps shaping smarter policies that may avert a stumbling into an unwanted cyber war. >> i will go beyond ellen and say that on the cyber issue in particular the over classification is directly harming our national security in this way, which is that all of us have talked to people who have a general sense of the problem. we understand that the basic solution at some point to protecting the .com domain,

which is 80% of internet traffic, is to get an agency that everyone is afraid of but that has the capability, the nsa, up on the domain. basically, have the nsa do packet inspections on all of the incoming and outgoing traffic throughout the united states. that is the solution. we know that is the solution. it obviously carries with it a number of extremely difficult political and technological questions. but that is the solution. the sooner we start to talk about this in an open way, the sooner we can convince people in congress that they can talk about it and not be afraid to talk about it and the sooner we can move toward a regime with self auditing systems, however it is going to work. part of it is, as one example

-- auditing technology exists, but without the demand for it it will not be -- the level at which the technology increases and sophistication to the point where you can self audit trusted analysts in real time, you will not get there. there are absolutely direct consequences to not talking about the cyber debate. people are afraid to mention the words nsa. the big irony -- this is something that jim lewis will point out -- is that the only people in the broad arena of cyber who really do not have a good sense of what the united states' capacities are is the american people. the chinese know. russia knows. sophisticated crackers know what the nsa can and does do.

they know the technology. they know what is possible. they know what government is doing. at some point, you are not keeping secrets from your enemies. you're keeping secrets from the american people to avoid a political debate that you yourself say is very necessary. if it sounds as if i am frustrated, i am. it is recursive to me. it does not make sense. again, i think in and of itself it makes a compelling case to start talking about these issues in a way that is more clear. the former dni who once took the opposite side on this debate has come over and wants to talk about this as openly as he can within the structures of how he is limited by his condition -- by papers he signed the first day when he got his top-secret clearance. i will stop there.

it is not just a matter of principle here. this is a matter of direct national security harm that overclass vacation is causing, i think. >> it would be a pleasure to be here even if the alternative for not being buried in 3 feet of snow in washington, d.c. we have talked about the balance between national security and privacy this weekend. there is a simultaneous tension between transparency and secrecy. i see us as being on one side and many of you as being on the other side of that. it may not be in the cards to make a lot of headway on the whole declassifying 95% of what is classified campaign. there is another kind of transparency that is easier to accomplish that is equally

valuable to the american public. i am reminded of a round table conversation that alberto gonzalez had with reporters covering the justice department during the trial. one of the reporters around the table said, "explained to us the thinking behind classifying him as an enemy combatants." this was not a national security secrets. gonzalez said, "there was a sense within the government that we should find a high-profile terrorism trial and see if it worked in an article 3 court." he said the guy pleaded guilty and then we went through this whole huge trial that cost a ton of money and ended up in a life sentence rather than a death penalty. i am not sure whether it worked as well as we might have hoped. i do not know what the likelihood is we will try it

again. he is not revealing something classified. he is not telling a national security secrets. he is giving some transparency in a way that i find useful not only to me but to the listeners are reported the story to the next day. i can imagine people sitting here in the audience saying "you would like them to declassify everything. it is not going to happen." maybe not. this other transparency really can happen and really can help improve the discourse and public understanding on this front. >> do you want to weigh in on this subject? >> i want to note first that four people have been involved in this, including bobby, and have had in common that they were all second circuit law

clerks a one time or another, bobby having been mine, which explains why i am here. [laughter] you need an explanation to why i am here because as i've been thinking about this for two days there are two intersecting circles that are involved. one is i keep thinking the new deal -- what did they call washington? they had not built the beltway yet. one is the beltway. the other is academia. that is a whole different circle. they intersect. i once read a law review article in the "george washington law review." i cannot say i understood it, but i can say for sure that i could follow it -- the whole article. i feared for his career.

in any event, i say this because it is academic at and i am outside both of them. i am one of the few people here who is genuinely an outsider. in fact, i now am the person on the second circuit, 20 judges or so -- i now know more about national security than any other of my colleagues. does that scare you or what? i am an outsider. as an outsider familiar with the press, i want to say this. in terms of secrecy -- it is hardly my insight. it was best put by professor bickle, in a book called "the morality of consent" in the mid-70s. the question is the rules of the game. this is an adversary process between the people on this side, that is to say the journalists,

and the government. it always will be. nobody is going to solve this by saying "we have a new freedom of information act. now the press gets what it wants and we have solved the problem of openness and closeness." the way we as a country have solved that -- one never can know what secrets did not get out that should have. we have solved it by having this adversary system with the journalists on one side and the people with the inflation, the government, on the other side. the tussle with each other, constantly trying to get what one person thinks is secret. they try to keep it secret. it is an adversary game, and a serious one and an important one. once they get it, they are responsible. there are things, as far as i know, that they get and will not

publish. they know well they ought not to. basically, it is the rules of engagement that are important. the thing to be concerned about is what happens when one side steps across the adversary relationship and decides "my interest is more important. i am more true than they are." either side -- when one side decides -- when the people who were keeping the secret say "the journalists have that and we must do something about it," like the pentagon papers case. we have a history of that. all i want to do is -- and vice versa. if the press can get information in the press knows perfectly well, my colleagues know perfectly well they should not, step over the line to get

information they ought not get -- my only plea on this issue of to open or too close to is to remember the rules of engagement and to obey them. >> i had no luck in getting a journalist to confess how much of what they know comes from unauthorized sources, but i am not giving up. i will oppose this from a different way. everybody knows there is over classification. everybody knows there is rampant over classification. the fact that material is classified does not stop you and you and you. people are always disclosing classified information. government officials and reporters are. judge sack ask the question -- what are the rules of engagement. that is the question i want to put to the journalists.

you say you are not bound. what are the criteria? another way of putting the question is are there legitimate national security secrets which you would decline to publish even though you believed it was important news? >> i think this happens a lot more than you think. all have less -- all of us have been in situations where we have learned something. when it is really serious, when it has serious national security implications, and would jeopardize troops in the field or informants or the lives of people, responsible officials in the government let us know that.

invariably, we do not publish it. mainstream news organizations deal with the government all the time. frequently, on these very issues, it is very rare that when a senior government official goes to a news organization and makes a strong case that the publication will go with it. maybe markets speak to this better than i, but the classic example on the other side is when the new york times went with a story against the strong urging of senior government officials. that is when marks colleagues broke the story about the warrant was wiretapping program. that has been of much interest here. you know the story. the first time around, they sat on the story began in 2004.

they did more reporting and came back in 2005. the bush white house and administration officials urged the paper not to publish. the paper published anyway. they concluded there was no great harm to national security or it would be overcome by the public learning about this program the president had authorized. how many people think the country would have been better off if we never knew about that program? look what happened as a result of the disclosure. a lot of public attention on what they were doing. congress took notice. they rewrote the law on how electronic surveillance took place in this country and put it on a firmer legal footing. i think most people -- if you

disagree, feel free to step up afterwards and say. but i think most people would agree we are better off as a country today because we have a much firmer legal ground in for the kind of surveillance everybody thinks is necessary. >> is that the criteria? is it for each individual journalist or news organization to make up their own minds? will the country be better off if i disclose this national security secret? >> i will be brief and say that since we know that we cannot trust the government to make sound decisions in this area, and i think there is pretty ample history of that, i think that yes. this is a tension. this is a game. it is a process. it is a dialogue.

i think absent really strong examples to the contrary i would say news organizations can be just as responsible as political officials, who have their own political interest in making those decisions. >> ellen, do you want to comment on this? >> i think mike summed it up quite well. there is a healthy tension, this adversarial relationship between the press and the government. that speaks to our role as watchdog trying to hold government accountable as well as our role to help inform the public so that the public can be part of a healthy debate about the future of our country and national security. in that sense, we are both adversaries. is a healthy relationship in

which if the government can be a little more transparent at times i think it will find that through our role as watchdog they are also helping inform the public. getting back to the idea of the balancing act between national security, public interest, and whether we would be endangering national security, i think it is up to the editors at every organization to make that call. i think in the case of the warrantless wiretapping program it is pretty clear to me that the times came down on the right side and made the call in the interest -- in the public interest. another example that i know has been open to debate in government is whether the disclosure of the swift program

for transferring -- for sharing financial data between countries like in europe and the united states. some government officials believe that this closure actually harmed national security, but i have not found my own conclusion on that yet. >> i think -- i am the only one on the panel who did not think bobby. as a political reporter, we see all of these 10 candidates. all the candidates and the first 10 minutes on their opening statements thinking everyone. to briefly answer questions, the amount of information's i get from people who are an authorized to give it is fairly little. a lot is about panel analysis -- about pattern analysis.

even in the short year or so i have been doing it, there been a couple of instances where on various stories some of them will say "can you not mention this particular detail?" is not germane to the story and i am usually willing to take it out. there are no formal rules of engagement. there are principles and there are human beings who are wrestling with these principles. we journalists have to recognize, particularly if we have an audience, we have enormous power -- power we do not always conceive of. that is one reason why -- and i may be different than other people on this panel -- i do not necessarily favor a reporter shield law. i am not sure what we do to

deserve that. i am not sure whether we of exercise our power responsibly enough. a basic shield law i am fine with, but a blanket shield law that essentially privileges the side of reporters when it comes down to very serious cases of national security disclosure -- i think if you are a reporter and you want to protect your source, you go to jail. that is in some sense the responsibility we bear for having this enormous power. perhaps as an amateur in covering this and i start to break stories of consequence i will change my mind. [applause] [laughter] it does strike me we do have an enormous power that we often do not quite come to terms with. i think the better of those -- and people among this panel are

the best of those, myself excluded -- the amount of time we take thinking about the balance between what people should know per se is what people should not know and what is legitimate to protect secrets -- i think most people here would be impressed by the amount of time we think about that seriously. it is not just a reflexive instinct that every detail we learn just flows out the door. i have answered four questions. i will stop. >> i want to follow up a little bit. mark talked about the power we have, meaning the power of the mainstream established media. "the atlantic you are the atlantic," "the washington post ," npr, the times, "newsweek." you do not have a monopoly anymore. there are a lot of people who do not have the audience you have but have some of the same power

you have to disclose things. all of you talked, and i am perfectly prepared to believe that what you say is true about making responsible decisions about disclosure. not everybody is going to do that. you're going to have people up there who will say "this is my chance to make a big splash. nobody has ever heard of me, but 10 minutes from now they will know who i am. " you've seen that happen in the past. what mechanism is available to deal with that? isn't that a whole new world in which the argument that we are responsible organizations and answer to our readership and all of that is not -- >> do we need a mechanism? >> maybe mechanism is not the right word. my question is what is going to

happen. >> i do not know. it could be good. it could be bad. when is a mechanism, i automatically think of a council of wizened elders saying "to is a journalist and who is not a journalist." i tend to believe that quality journalism -- despite what people say about the new york times, "the new york times," a front-page story would change policy quicker than anything some blocker apprentice. certainly, i am speaking again self-interest since my platform is online, but i think there has been an exaggeration. the power of the broad at masses is to distract as opposed to

policy change. i think the next -- i think the distinction still exists. i am nervous whenever anyone tries to talk about the rules and the federal trade commission trying to figure out -- for example, any blogger who accepts a mouse pad has to disclose it for some odd reason. i get very nervous when rules are promulgated other to give us advantages or to try to separate that. i believe i am not -- i do not believe in magic. if there is a magical belief that i hold it is that information, when it is out in public -- not always. it will take time. but it will usually benefit things if information than had

been previously protected is released. >> i think there is a difference in terms of the process we go through before we publish, we meaning everyone on this panel. we go through that with sensitive information and information that is put out there in the public that we have to decide whether we want to echo. we have to confirm it to be true. then, the decision is do we want to have eight times a story about this subject. day are two different processes. i will address the issue of leaks. i do not get authorized leaks. they are mostly unauthorized. there is very little authorized information that comes to us.

i guess a lot of people think there is, but there really isn't. we have to find it out on our own. when we get this information, there is then this process that goes on with editors where we have to make our own decisions about whether this is worthwhile and permission to report. if we decide that and, we go toe government and allow them a response. in rare circumstances, but more frequently than you think, there will be discussion where they might try to get us to not publish or to withhold some details. we make a decision about -- we way that and make our own decision. it is not me. it is people who make a lot more money than i do.

the situation mark described, where it is out there and we have to make a decision about what to do -- it is somewhat the same, in that we have to confirm it and have to decide whether it is in the public interest. i will be quite frank that it is probably a lower threshold for us if it is already out there. i will say it is a lower threshold. if it is in the public debate, we are not the ones to put it in the public realm, it will be "the new york times" more easily. >> i want to follow up with michael since see he has poignant experience in this realm. suppose you have a piece of information and it is important. your editors have decided "we are not going to do this." your suspicion is that a certain

website has this information and if we do not run it they are going to. what happens? >> i will make that point very forcefully to my editors. >> what effect would you expect it to have? >> it depends on the story. i think you're probably referring to a particular incident which has been well trodden ground. ultimately, i work for my employer. i have to accept their decisions. generally, we all, except in rare and extreme cases such as the one you are referring to -- we tend to be like minded. we will have differences about what standards are, how much we need to put the story over the threshold. we all generally know the rules. we all generally play by the same -- play in the same

ballpark. >> we meaning you and matt drudge? >> me, the people on this panel, and our editors. we'll have a professional standards that we understand. it is a dialogue. sometimes, people will disagree. generally, it is a process under which a little more reporting in this area will get you over the hump or not. there is no -- if you are suggesting -- i am not sure what you are suggesting. am i going to find an alternate route to get my story out? >> i am only asking what affect the existence of the matt drudges of the world have on the

decision process of mainstream media. what i hear you saying is not much. >> no. i have been in this business for a while and it has been very much the same at my publication for a long period of time. >> i absolutely echo that. emergence of new media and all these new things has given us a lot more sources of opinion, analysis, and conjecture. that does not mean that as news organizations represented on the table we lower our standards and me for what we will print. we still that the credibility of our sources. -- we still vet the credibility of our news and how much it is

in the public interest. just because matt drudge print something does not mean we will rush to match it. >> all of us love being first, but what distinguishes us from the great masses of citizen journalists is that above being first revalue being right and fair at a hearing to certain journalistic standards. hopefully, long term, that is what distinguishes institutional news organizations from the rest. the rest is valuable. in a real way, on twitter, dan shore is no different from dan shapiro. that is a good thing. institutionally and psychically, there is an important distinction. i think that is valuable too. >> matt drudge -- i think his

legacy with mainstream media, given how established he is -- we talk about new media. we're talking about social media. we're talking about sarah palin posting on facebook, which is owned by a huge corporation. that is something we have to deal with. a lot of purveyors of new media are owned by the same companies that are traditionally associated with all the media, which is an academic point beyond the scope of this discussion but something to ponder. i wanted to take my opportunity to bash matt drudge, even though he does deliver traffic to me on good occasions. i think at this point he is legacy, but you cannot call drudge -- he is msm as much as any of us. >> what distinguishes him from

"the washington post" or "the new york times" is -- this mystical phenomenon of the news room is a group of editors and reporters who, in this relationship of give and take and what do you have and did you get a second source, that's true tension creates the authoritative product that will, in the end, distinguish us from much of the new media, or what ever you want to call it. that affords us the opportunity, as papers who also have a web sites, to establish our niche. >> to take slight issue with that, i think we all have our standards that are inviolable. it is getting fuzzier.

because we are all trying to be digital and are trying to keep up with the pace of technology, we have to make decisions. there are decisions made on our website. for instance, if we create a blog and have a forum for discussion, going back to this issue of other people doing with informational we do not -- if they blog and put something out in a forum of ours, it is sort of a roundup of the blogs. is that then in the new york times? it is pretty fuzzy. there have been things on our website i have been angry about. we are citing and referencing,

on our web site -- which i do not think we have veted or no to be true. if x blog is reporting something -- it could be anything -- that we have not independently confirmed, where does that take the standards to be? are we responsible, before we put it on our website, to check it out ourselves? increasingly, we are not doing that. maybe that creates a whole new paradigm for what is -- what are our standards. that is something that concerns me and i do not think anyone has figured it out yet. >> mark made the point a minute ago that he is uncomfortable with ideas that there are rules that do not apply to everybody equally, rules that would exempt mainstream media as one example.

one set of rules that applies to everybody with respect to national security secrets is the espionage act, which sends people to jail for disclosing certain matters. that has never been applied against the mainstream media geyet, but there is not any exception in the act for mainstream media. there was talk at the time when the lobbyist for the american israeli political action committee were being tried. there was talk that if they could be tried so could any reporter who reveals national security information. if mark is right and you cannot distinguish between distinguithe traitor who wants o disclose information for nefarious purposes and the

reporter who wants to disclose it for public informational purposes, is there any reason why the espionage act cannot be used to prosecute reporters for disclosing national security secrets? >> anything i say in this instance cannot and will not be used in the -- will not be used by the justices in this room to open to prosecution under the espionage act. the answer is no. i think there are cultural, historical, and practical reasons why prosecuting journalists under the espionage act is unlikely. one is because the journalists' tendency would be to go on the stand and tell everything they did not put in the article. that would not prevent them from talking. journalists would be combative in that sense. for the most part -- the other

thing goes too -- if you get to a certain point, and this is not always been true, but it seems to be true now that if you get to a certain point in your career the cia can make a good case to you that the disclosure of the identity, for example, of a case officer under cover, which i believe is one of the specific threshold in the espionage act -- if you are about to do that and there are ways to convey the basics of the story without revealing the identity of the person, it is a no-brainer and you are going to do that. that happens frequently. i guess what i am saying is there is no reason why they should not. if a reporter discloses the

identity deliberately of a case officer under cover and does so willingly, why shouldn't the justice department prosecute the reporter? i do not see why not. how are we special, in this sense? >> i do not know how free you feel to speak on these matters. they may end up in the second circuit. >> there is absolutely no chance. we would be in the d.c. circuit, where the court begins with an f, whenever it stands for. i do not think this applies at all to protecting national security secrets. >> so there is a journalist exception? >> no. you are talking law. we are talking something else. i said i would not quote scripture, but there is nothing new under the sun.

that is ecclesiastes, or something like that. you are talking as though this is all new and i am thinking "pentagon papers." if you read the actual decision in that case, a lot of it was -- you are coming in and sing get an injunction. they got an injunction against "the new york times." they said "read the statute." nobody ever seriously thought -- nobody thought of suing them. they sued daniel belzberg -- danielle elsberg and made a stupid mistake of breaking into his psychiatrist's office. >> six justices did not decide the question. they did not address it. >> fair enough, but the government did not ever do that.

that is exactly my point about rules of engagement. i do not mean law. i mean rules of engagement. with somebody sitting in uniform there, i am sure rules of engagement is the wrong word. i think of it more as a lawyer. what can lawyers in an adversary rule do with respect to each other? some things you do not or would not do. two of them -- if one could make absolute statements about it, what would be the point of a panel discussion? you cannot do that. you can say generally the government should not go around bringing criminal suits against reporters for writing things that, according to the law, are secret. let me finish this and i will be through. the second thing is very important.

i go back and forth as to whether the 71 -- the 1971 -- there shall be no prior restraints was important. what kind of prior restraint can you have? daniel elsburg would have had all the pentagon papers on-line before it ever got to the times. when you talk about being responsible -- you're sitting there, making all these judgments. i am sure you pick up the phone and call the person at whatever agency it is and say, "gosh. we have this and i know you do not want us to have it, but i want to make sure there is not any real damage." if you were in danger of prior restraint, an injunction against publishing, he would not be able to do all these things that you do in order to be responsible. these are two of the rules of engagement,