Whistleblowing, Journalist Privilege, and NSA Surveillance
posted by Daniel Solove
The DOJ has launched a probe into the leaking of the NSA surveillance program to the New York Times:
“The leaking of classified information is a serious issue. The fact is that al-Qaida’s playbook is not printed on Page One and when America’s is, it has serious ramifications,” Duffy told reporters in Crawford, Texas, where Bush was spending the holidays.
This probe will raise several important questions in the months to come.
First is the issue of whistleblowing. Somebody leaked classified information about the NSA surveillance program. Should that individual be punished? On the one hand, we don’t want people leaking classified information that could impact national security. On the other hand, the President possibly violated a federal criminal statute. Whether he did or not is something that Congress and the courts must settle, but very few of those defending the legality of the President’s actions believe that it is a very easy clear-cut case. At best for the President, the issue is contestable; at worst, he broke the law. Without the whistleblowing, there would be no way for the Congress or courts to address the issue. Even if it turns out the President lawfully engaged in the surveillance, there’s another issue: Is the President lawfully allowed to keep it secret for as long as he desires? At the very least, should the President be allowed to keep it secret from other branches of government?
Second, what is the harm of the whistleblowing? President Bush stated that “the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.” I believe that such rhetoric is overblown unless there is something to back it up. How does the disclosure of basic facts about the existence of the program put our citizens at risk? Rhetoric such as this can do a severe disservice to national security in that it will become harder in the future to determine what is just empty rhetoric and what is the truth. The story of the boy who cried wolf doesn’t end happily.
Third, the probe into the whistleblower may raise again the issue of journalist privilege — the right of journalists to shield the anonymity of their sources. Earlier on, this issue took center stage with the White House leak that Valerie Plame was a CIA agent. Will the DOJ seek to obtain the identity of the leaker from James Risen and Eric Lichtblau, the New York Times journalists who broke the story?
In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court held that there is no First Amendment journalist privilege against grand jury requests for evidence. Lower courts have employed qualified privileges, but these have been generally much broader in civil rather than criminal cases. I haven’t examined the caselaw sufficiently enough to opine on the extent to which any journalist privilege would apply to this case. The Reporters Committee for Freedom of the Press has an extensive repository of materials on the issue of journalist privilege.
There have been calls for Congress to establish a journalist privilege, and I believe that Congress ought to establish one. A lot of issues in the precise contours of the privilege need to be worked out, as I discuss here in a post, but it is time to address the issue. By creating a journalist privilege, Congress can help to reassert its power in the process. President Bush probably broke a federal law; has continued to claim that he has power to ignore the law; and did not (and has not as of yet) fully informed Congress about the surveillance program. If I were Congress, I’d be feeling fairly stepped-upon right now. Creating a journalist privilege would ensure that Congress and the public learn information about secret Executive Branch activities that might be beyond the bounds of the law.
Many might try to equate the leaking of the NSA surveillance program to the Valerie Plame leak. I believe that the two leaks are not equivalent. There seems to be little justification for the Plame leak except vindictiveness. On the other hand, the leak of the NSA surveillance program has potentially revealed a violation of the law (one that is continuing and ongoing); it has uncovered a potential overreaching of Executive power; it has tipped off Congress to a potential encroachment on its own power; and at the very least, it has opened up a national discussion about the proper scope of the President’s powers in a democratic society with separation of powers.
I will withhold final judgment until we have more facts, but from what I know at this point, I submit that the leak of the NSA surveillance program was in the public interest, and the journalists who broke the story and the identity of their source should be protected.
Related Posts:
1. Solove, Journalist Privilege and the Valerie Plame Case
2. Solove, Journalist Privilege and Law Enforcement Leaks
3. Solove, How Much Government Secrecy Is Really Necessary?
4. Solove, Did President Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance?
More related posts are in the category archive for National Security.
December 30, 2005 at 6:08 pm
Posted in: First Amendment, Privacy (National Security)
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Responses (6)
Cernig - December 30, 2005 at 8:35 pm
Hi Daniel,
I think the whistleblowers can use their belief about the illegality of the acts they leaked as a defense for the leaking. The quote you make above from Trent Duffy is idicative of at least a slant in shielding the President by looking for a prosecution and furthermore, the normal channles of recourse for intelligence personel break down when the possible criminality begins at such a high level.
The U.S. Office of Special Counsel has this to say about such matters when they involve national intelligence operations.
For disclosures of information involving counterintelligence and foreign intelligence information the statute sets forth a different procedure under 5 U.S.C. § 1213(j). If the Special Counsel determines that a disclosure involves counterintelligence or foreign intelligence information, which is prohibited from disclosure by law or Executive order, the disclosure will be transmitted to the National Security Advisor, the Permanent Select Committee on Intelligence in the House and Select Committee on Intelligence in the Senate. 5 U.S.C. § 1213(j). The referral ends the Special Counsel’s involvement with the disclosure and the National Security Advisor and the Congressional intelligence committees decide how to proceed with the information. The disclosure will not be referred to the head of the agency involved for an investigation.
Given that the director of the NSA and the Chairs of both committees are likely complicit with the alleged instigator and ringleader of this criminality (POTUS), it would hardly give a prospective whistleblower a warm fuzzy feeling, now would it?
So the whistleblowers decided to go above the heads of all those who may be complicit in breaking the law to their ultimate boss – the American People. They did this by talking to one of the traditional channels for doing so, an organ of the free press of the United States.
I’m sure someone could argue that indeed the Constitution’s spirit at least would commend them for doing so.
Regards, Cernig @ Newshog
A Stitch in Haste - December 31, 2005 at 10:11 am
Should the Warrantless Wiretap Leaker Have Immunity?
“The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative governm…
Scott Noveck - December 31, 2005 at 2:12 pm
Is it really true that “there seems to be little justification for the Plame leak except vindictiveness”? Joe Wilson wrote in his New York Times piece that he was personally chosen to make the Niger trip by the vice president’s office. That implicitly gave his trip the administration’s imprimatur, which makes his accusations against the administration particularly credible.
But what Wilson wrote wasn’t true. At least, one reasonable interpretation of the situation is that someone leaked the fact that Wilson’s wife worked for the CIA so that it would be revealed that it was her CIA connections that led to Wilson being chosen for the mission – that it was not Cheney’s office that chose him (indeed, Cheney’s office has publicly denied choosing Wilson – but then again, Cheney also says that he had never even met Wilson at that time, which has been proven false).
And even if the CIA leak was simply “vindictive,” I don’t think we can simply say that vindictive leaks are bad and well-intended leaks are good, regardless of their effects. Look at Deep Throat – it now appears that Felt’s actions were based in large part on a grudge against Nixon for passing him over for the top spot at the FBI. But vindictive motives aside, this was undoubtedly a good leak, revealing the president to be engaging in illegal activities. It’s just not clear to me that we have a good theory of the difference between “leaking” and “whistleblowing,” except for the rhetorical distinction (“leaking” for revelations you don’t like, and “whistleblowing” for those you do).
I wrote a more detailed piece arguing that the CIA leak might be whistleblowing a few weeks ago, available at http://www.princeton.edu/~soapbox/32noveck.html — looks like I was a bit ahead of the curve on the difficulty of distinguishing between “leaking” and “whistleblowing.”
Daniel J. Solove - December 31, 2005 at 2:30 pm
Scott,
I should have clarified in my post. The distinction between “leaking” and “whistleblowing” shouldn’t turn on the motive of the source, but on the value to society that the information provides. Does the leak of the information advance the public interest? In the case of the CIA Plame leak, I submit that it does not. I have yet to hear a compelling reason why the leak was important to society. With the Deep Throat leak and the NSA surveillance leak, in contrast, the value to society is great — these leaks go to government abuse and overreaching; they expose potential excesses of Executive power.
Of course, even a public interest test has many areas where there’s debate; no test is perfect, and it is hard to draw a line that clearly separates “leaking” from “whistleblowing” in a way all will agree with. That said, I believe some line must be drawn. If the CIA leak is considered whistleblowing, then there’s little that will not qualify. In your post, you write:
Quite frankly, I’m not sure that Wilson’s impartiality is a very important matter that is worthy of leaking information about a CIA agent’s identity. Let’s assume no vindictiveness and a good faith motive on the part of the Plame leaker — if we make this assumption, then the leak was to help the Administration to refute one of many of its critics on one particular matter. This is just not strong enough a reason, I believe, to leak. Compare that to the issues involved with Deep Throat and the NSA surveillance — these involve possible abuses and corruption by goverment officials, including the President.
In other words, who is the CIA leaker blowing the whistle on? Wilson, some minor critic of the Administration? That’s not blowing the whistle; that’s just challenging a critic. Not sufficient enough in my opinion.
p.lukasiak - December 31, 2005 at 5:05 pm
Joe Wilson wrote in his New York Times piece that he was personally chosen to make the Niger trip by the vice president’s office.
I stopped reading Scott’s comments after this flat out lie about Wilson’s New York Times piece.
[The remainder of this comment has been deleted. Civil discourse only please.]
Scott Noveck - January 2, 2006 at 2:30 am
My apologies, it does look like I was quite hasty in my earlier post and took a GOP talking point at face value without fully verifying it myself. I was uncertain whether Wilson’s (supposed) claim that he was sent by Cheney’s office was in the NYTimes piece or in one of his later TV interviews, so I did a quick Google search to check. That took me to the GOP talking points which “document” the claim and attribute it to the NYTimes piece. Searching a bit further shows that claim to be dishonest, to say the least – see here and here.
That said, I don’t think it undermines the point that the Plame leak was at least marginally substantive. Certainly most people thought, prior to the leak, that Wilson was chosen based on either his credentials or political connections to the administration. No one had reason to think otherwise until Plame’s CIA status and her involvement were leaked. And, indeed, the Senate Select Committee’s investigation found that Wilson’s wife was responsible for his being chosen for the mission (see p. 39).
So my point stands — there is an explanation for the leaker’s actions in which the leak was of value to society (contatry to the statement in the original post that there was “little justification . . . except vindictiveness”). There’s a case to be made, at least, that the leak should be seen as whistleblowing.
Professor Solove: I could buy the idea that the line between leaking and whistleblowing should be based on the degree of public importance of the information. (I would also personally agree that the public value of the Plame leak, for assessing Wilson’s credibility, seems insufficient to justify all the harm it caused; but others could disagree, and I’m sure there could be much more difficult borderline cases.) But I’m now sure how the level of importance should be judged or, more importantly, who should render that judgment. It seems like the current approach — an after-the-fact, ad hoc opinion about whether to prosecute, made by the government with perhaps a little regard to public opinion — is inadequate, especially given the new probe of the NSA leaks. It seems like protections for journalists and whistleblowers need to be codified, but until that happens, what do we do? I agree with most people (I think) that the NSA leak was a “good” leak and the CIA leak was a “bad” leak, but my instinct says it’s unfair to tell the NSA leakers they’re forgiven, but then to tell the CIA leaker – who could’ve taken a look, seen there was no legal distinction between these leaks (or the Watergate leak!), and reasonably thought his actions were valuable and defensible – that he’s going to be spending the next few years behind bars.
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