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Author: Mary-Rose Papandrea

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Hearing on National Security Leaks

On Wednesday morning the House Judiciary Subcommittee on Crime, Terrorism, and National Security held a hearing on the recent national security leaks.  I have just finished watching a video of the hearing so you won’t have to (you can thank me later).  Experts testifying included President George W. Bush’s homeland security advisor Kenneth Wainstein, American University Professor Stephen Vladeck, George Mason Professor Nathan Sales, and US Army (Ret.) Colonel Kenneth Allard.

As the witnesses pointed out, this is the third time in a year and a half that Congress has called for testimony on national security leaks.  The sheer frequency of the hearings indicates that Congress should really try to figure out how to reform the Espionage Act, but I am not going to be holding my breath waiting for this to happen.  Today’s hearing raised some interesting questions but unfortunately provided little guidance on how Congress might revise the Espionage Act.

Not surprisingly, Republican members of the Subcommittee largely used this hearing as an opportunity to rail against the lack of a special prosecutor to investigate the most recent national security leaks, while Democrats spent their time pointing out the most recent leaks were nothing new because leaks have been going on since the founding of this country.

The most interesting part of the hearing from my perspective was the Republicans’ attacks on the media for publishing national security secrets.  As I had mentioned in one of my first posts, almost all of the hostile reaction to the most recent round of high-profile leaks was initially directed at the leakers themselves and not the media entities that published those leaks.  Well, no more.  Rep. Lamar Smith of Texas began the attacks on the media at the outset of the hearing when he said that newspapers publish national security secrets not because they are committed to transparency but rather because they want to increase circulation.  Colonel Allard happily jumped on the media-bashing bandwagon, stating that the N.Y. Times “abuses its position” and that David Sanger’s reporting was “the equivalent of having a KGB operation running against the White House.”  (Colonel Allard also had one of the best quotes from the hearing: “In wartime, I am as opposed to the free flow of information as I am to the free flow of sewage.”  Yikes!)

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That Didn’t Take Long: Supreme Court Leaks

Jan Crawford reported yesterday that two Supreme Court insiders “with specific knowledge of the deliberations” behind last week’s monumental healthcare decision have revealed that Chief Justice Roberts originally voted to strike down President Obama’s health care reform law but switched his vote sometime after the initial conference.

Before the health care decision came down, there was some chatter in the blogosphere asking why no one at the Court had leaked the outcome.  In light of the recent series of high-profile national security leaks, it seemed unusual that the Supreme Court employees were apparently so discreet about the Court’s inner workings.  Jack Goldsmith had a piece in The New Republic asking why there are rarely leaks from the Supreme Court about pending cases and offered some helpful comparisons between Supreme Court employees and national security employees.  Ethan Lieb had a shorter post on PrawsBlawg asking the same question.

Well, the ink is hardly dry on the opinion, and leaks about what happened behind the scenes at the Court have already begun.  My guess is that some disgruntled law clerks for Justices Kennedy, Thomas, Scalia, or Alito are the source, but I doubt we will never really know.  Although the Court is very good at keeping secret the outcome of cases prior to their official announcement, it seems that all bets are off once the opinion comes down.   No doubt most if not all of the Justices are disappointed that these leaks had occurred, but it is unlikely that the leakers will be identified or suffer any consequences.  Unlike national security employees, clerks who leak do not have to worry about losing their security clearances or the threat of criminal prosecution under the Espionage Act.

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Initial Thoughts on the Stolen Valor case

Although most people are focusing on Chief Justice Roberts’ vote to uphold the healthcare law, it turns out the Chief also voted with the “liberals” today to strike down the Stolen Valor Act as violating the First Amendment.  This is an important First Amendment opinion with lots of points for discussion.

The Stolen Valor Act makes it a misdemeanor to “falsely represent oneself as a recipient of military honors.  The final vote from the Court was 6-3, but the six votes were spread between Justice Kennedy’s plurality opinion (joined by the Chief and Justices Ginsburg and Sotomayor) and Justice Breyer’s concurring opinion joined somewhat surprisingly by Justice Kagan (more on that in a minute). The dissent was written by Justice Alito, joined by Justices Scalia and Thomas.

I will just note a few things that captured my attention after a first read:

Reliance on the marketplace of ideas: Although Justice Kennedy spends a lot of time in his plurality opinion discussing how the current statute does not require prosecutors to demonstrate any material harm resulting from the false speech, he also notably places a lot of confidence in the marketplace of ideas to discredit false statements.  In particular, he relies heavily on the ability of counterspeech to flush out the truth.  In this case, Kennedy writes, the Government could easily post online a database listing those who have received military honors.  Justice Breyer’s concurring opinion also discussed the importance of the marketplace of ideas and encouraged the Government to embrace “information-disseminating devices” to correct the truth.

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Chilling Speech

The New York Times has an interesting article this morning about how art experts are afraid to give an opinion on the authenticity of artwork because they are afraid of getting sued.  The article notes that plaintiffs rarely win these kinds of suits, but the time and expense of litigation is a real deterrent.  To avoid this problem, the College Art Association has begun to offer affordable insurance to those who authenticate art, and some experts are requiring the owners to sign a waiver promising not to sue.  This article is a reminder how often the fear of litigation can chill free speech, even when the “law” is on the speaker’s side.

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Sleeping with the Jury

Last night I was watching NewsHour’s story about the life and death of Rodney King and was surprised to learn that he was engaged to marry a woman who sat on the jury that awarded him $4 million in his civil suit against the Los Angeles P.D.  Apparently they started dating the day after his trial concluded.  We have all been focused lately on jurors misusing social media that we haven’t spent a lot of time considering the romantic feelings jurors might develop for the trial participants.  Of course I’m not sure it is that big of a problem.  As recent article in Slate explains, while it is clear that jurors cannot talk to the parties or lawyers until the case is over, judges are not going to throw out a verdict simply because a juror developed “feelings” for a litigant.  Let love bloom!

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Leakers and the First Amendment

There has always been an active debate about whether the First Amendment affords government outsiders (like the media) any protection when they disseminate classified national security information without authorization.  As I mentioned in my blog post last week, however, critics of the most recent round of high-profile leaks have targeted their attacks almost exclusively on the leakers themselves and not on the news outlets that published the leaks.  So the question is, do leakers have any First Amendment right to disclose national security information to government outsiders without authorization?

At the outset, let me just say leakers have a variety of statutory arguments they might make if prosecuted under the Espionage Act and related statutes.   Charlie Savage recently outlined a few of these arguments here.  In addition, one of the obstacles the government might face is that in order to prove that the disclosure was harmful to national security, they might have to reveal even more national security secrets (often called “graymail”).  This is one reason why the Drake prosecution fell apart.

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(Don’t) Blame the Messenger: What to Do about National Security Leaks

Many thanks to Danielle Citron for inviting me to serve as a guest blogger.  Lately I have been following the discussion about the most recent series of national security leaks, including those that detailed the White House’s terrorist “kill lists,” the foiling of a terrorist plot by a double agent in Yemen, and cyberattacks against Iran.  Outrage about leaks is hardly new.  Neither are leaks.  (See my prior article detailing the long history of leaks in this country.)  What is new is that the outrage this time around seems to be directed at the leakers and not at the media outlets that published the leaked information.

Back in December 2005, when the New York Times published its story about the NSA’s warrantless wiretapping program, the paper and its reporters were condemned just as vigorously as the leakers themselves.  It is interesting to think about why the politicians and commentators have held their fire against the media after this latest round of leaks (at least so far).  Perhaps critics’ suspicions that these leaks were politically motivated during an election year to make President Obama look like a strong leader has made them forget to take their usual shots at the “liberal media” that disseminated them to the public.  But given that leaks often appear politically motivated, this answer is not all that satisfying.

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