In an effort to shed more light on how we work, The Times is running a series of short posts explaining some of our journalistic practices.
Here, the Pulitzer Prize-winning Washington correspondent Charlie Savage — who covers national security issues for The Times and is the author of “Power Wars: The Relentless Rise of Presidential Power and Secrecy” (2015) — explains the legality and ethics of publishing leaked information.
What is a leak?
The word “leak” has no official legal definition. But the term usually refers to the act of providing confidential information to the public in a surreptitious way and without official authorization.
Are leaks illegal?
Most are not, but some are. Federal law criminalizes the leaking of certain types of information. The Espionage Act makes it a felony to disclose, to someone not authorized to receive it, information related to the national defense that could be used to harm the United States or aid a foreign adversary. A small handful of specific types of information — like nuclear secrets, the identities of covert agents and techniques for surveillance of intelligence communications — are separately protected by law. For most of American history, the government did not punish leakers through criminal action, but in the 21st century, leak prosecutions have become more common.
How does The New York Times decide whether to publish leaked information about national security?
In the landmark Pentagon Papers case in 1971, the Supreme Court, citing the First Amendment, struck down an attempt by the Nixon administration to force The Times not to publish classified information in its possession. Still, there are instances when The Times obtains newsworthy information about national-security matters that the government has deemed secret, and an agency will ask the newspaper to consider voluntarily not publishing it.
This decision-making process typically begins when reporters reach out to the relevant agency, tell the agency’s officials what they are working on, and seek a comment or engagement. Sometimes, the officials respond by asking The Times to keep something out of the paper. Because suppressing information is not something The Times takes lightly, any ensuing dialogue is handled by senior editorial leadership at The Times, such as Dean Baquet, the executive editor.
Such conversations tend to center on whether the agency can articulate a plausible case that specific, concrete dangers would be created by publishing the information, or whether its rationale for suppressing the information is vague and abstract. The Times editors, balancing the potential news value to the public against the potential costs, then make a judgment about whether to publish. It is extremely rare for The Times to hold or kill such a story.