Leaks, Whistleblowers, and Media Shield Laws

The New York Times has a rather self-serving editorial today arguing that those who leak classified information to the press are doing a valuable public service and should therefore not be investigated.

Given the Bush administration’s appetite for leak investigations (three are under way), this seems a good moment to try to clear away the fog around this issue.

A democratic society cannot long survive if whistle-blowers are criminally punished for revealing what those in power don’t want the public to know – especially if it’s unethical, illegal or unconstitutional behavior by top officials. Reporters need to be able to protect these sources, regardless of whether the sources are motivated by policy disputes or nagging consciences. This is doubly important with an administration as dedicated as this one is to extreme secrecy.

[…]

When the government does not want the public to know what it is doing, it often cites national security as the reason for secrecy. The nation’s safety is obviously a most serious issue, but that very fact has caused this administration and many others to use it as a catchall for any matter it wants to keep secret, even if the underlying reason for the secrecy is to prevent embarrassment to the White House. The White House has yet to show that national security was harmed by the report on electronic spying, which did not reveal the existence of such surveillance – only how it was being done in a way that seems outside the law.

[…]

Illegal spying and torture need to be investigated, not whistle-blowers and newspapers.

As all the cases they cite demonstrate, however, these are not mutually exclusive options.

First, there has been no suggestion by the administration that media people be prosecuted for publishing information which they have every legal right to publish. The only argument has been whether reporters must, like all other citizens, testify under oath to grand juries investigating criminal conduct. Not surprisingly, the answer has been Yes.

Second, the fact that a reporter might be forced to divulge their sources under the color of law exacts no chilling effect on the press. To the extent that it makes sources less likely to go to the press with classified information, so much the better.

While there appears to have been no harm to national security in revealing Valerie Plame’s name to the press, revealing classified information to those not authorized to receive it is a crime. The NSA leaks may well have jeopardized our intelligence gathering and cost us a vital means of discovering terrorist plots. Or, it may turn out, there was little harm done. Regardless, running to the press with classified information is a crime.

Finally, while taking measures to assure harmful or criminal conduct is not being done by our government is a good thing, “whistleblowers” do not have carte blanche. For one thing, most of them have a personal agenda driving their revelations. More importantly, there are numerous institutional avenues for taking concerns to appropriate authorities. Certainly, the “senior NSA officials” who put the data mining program on the front pages had those avenues–and could have gotten congressional investigation going much faster than the year the NYT sat on the story.

The essence of our information security system is that cleared personnel with a need to know are able to get information necessary to do their jobs and that they are trusted not to reveal it to those, even with a high level clearance, without an operational need to know. Investigating those who willingly flout that system is essential to maintaining it.

Update (1/5) Daniel Engber concurs in a Slate Explainer piece entitled, “When Can a Government Employee Blow the Whistle? Are the wiretap leakers breaking the law?

According to federal whistle-blower protection law, members of the intelligence community are not protected if they divulge classified information to anyone without the proper security clearance, even if they think they have evidence of a crime. They can, however, pass along what they know to higher-ups and internal auditors within the bureaucracy without fear of retaliation. Provided they go through the proper channels, they can also spill the beans to a member of Congress who has the appropriate clearance. (The Intelligence Community Whistle-Blower Protection Act of 1998 covers this scenario.)

If identified, the Times‘ leakers might argue that the information they divulged was improperly classified. Executive Order 13292, which covers secret national-security information, says that nothing can be classified so as to “conceal violations of law, inefficiency, or administrative error.” With this in mind, they might claim that the domestic wiretap information wasn’t actually secret, since it had been classified incorrectly.

Executive Order 13292 also says that if you’re authorized to have classified information and that you, “in good faith, believe its classification status is improper,” you are “encouraged and expected to challenge the classification status.” That means that you should pass along your concern to higher-ups or an appeals panel, without fear of retribution. Federal employees also have a general obligation to pass along evidence of official misconduct through official channels. (See, for example, this presidential memo on “Official Conduct.”) This obligation wouldn’t apply to leaks to the press unless the information had been improperly classified.

Quite right.

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Herb says:

    I think by now, that most everyone knows that the NYT is a self serving leftist organization that would sacrifice national secrets and national securty for the furtherance of its own greedy and unpatriotic policys. Their article today advocating the breeching of classified materials to promote their selfich desire to make a quick buck and promote a book demonstrates their desire to undermine the foundations of our country.

    I ask the NYT directly, Who appointed you as the Supreme Court of what is right or wrong, or legal or Illegal?

    While I think there is a need for “freedom of the press” the NYT disclosure of classified securty information is cause for thier prosecution as trators for aiding and abeting our enemies. There is no excuse for their lowest of regard for the securty and safety of the American people.

    I know there will be those amoung us today who will defend the NYT with as little regard to our securty as the NYT has demonstrated. And, to those who defend them, let them be directly affected by those who would destroy our American way of life.

  2. slickdpdx says:

    Nice analysis.

  3. RA says:

    If these are “whistle blowers” they are blowing their whistles for our enemies.

    The reporters are not out of the woods yet. If they knew these documents were classified they could be procecuted for treason. Willfully aiding our enemies is subversive. They should go to jail also.

  4. legion says:

    I believe the key in this debate is the nature of the actions being publicized. To be specific, is the leaker leaking information about something illegal, immoral, or dangerous – i.e., ‘blowing a whistle’? Or are they simply trying to gain public support or knowledge of something that doesn’t technically concern the public? I think it’s pretty clear that the Plame leak (regardless of the actual damage done) falls into the latter category. Does the NSA tapping fall into the former? IANAL, but it certainly has raised a lot of questions.

    For more debate fodder, try considering the release of the Pentagon Papers… despite being highly classified, the gov’t interdiction of its publication was bounced by the Supreme Court (as prior restraint). How do you suppose that relates to our current affairs?

  5. McGehee says:

    For more debate fodder, try considering the release of the Pentagon Papers… despite being highly classified, the gov’t interdiction of its publication was bounced by the Supreme Court (as prior restraint).

    Since no one is alleging prior restraint in any of the more recent controversies, I wouldn’t consider that pertinent.

    Besides, if anything the Pentagon Papers outcome suggests that the mere fact something is classified doesn’t necessarily mean it has any true bearing on national security.

    Now, as I recall, a lot of the attacks on Rove, Libby, Cheney, et al over the Plame “leak,” are based on the fact Plame’s CIA employment was… classified…