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 [link no longer available], 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.
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.