December 30, 2005

posted by Daniel J. Solove

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

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."

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:

Without this information, the public could not correctly assess whether Joseph Wilson is to be believed as an objective and unbiased critic, and they could not fairly decide what weight to give to his accusations. The CIA leak was of value to the public, then, because it revealed that they may have been misled about Wilson’s impartiality.

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.

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.]

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.