In Praise of Leaks

Hunting for the line between whistleblowing and treason.

In the wake of the New York Times' publication of a story disclosing the existence of a secret National Security Agency wiretap program of dubious legality, the Department of Justice wasted little time in launching its investigation… into the identities of the inside sources who had tipped off the Times. CIA head Porter Goss soon followed suit, intensifying the agency's efforts to clamp down on leaks.

Mere days after the publication of the Times story, President George Bush blasted the disclosure as "a shameful act," insisting that "the fact that we're discussing the program is helping the enemy." A chorus of conservative pundits promptly began baying along, hoping an inversion of the Valerie Plame spectacle—with liberal Times reporter James Risen cast as Judith Miller—might serve as a sorbet to clear the scandal palate.

Yet it's never been wholly clear just how the NSA program's disclosure did threaten national security. President Bush invoked Osama bin Laden's purported eschewal of satellite phones after press accounts revealed that the U.S. was tracking him through it—but that example appears to be, as The Washington Post put it, "an urban myth." And since the only novel feature of the NSA program, as compared with the secret wiretaps permitted under the Foreign Intelligence Surveillance Act, is the bypassing of judicial oversight, it's hard to see what relevance the story had to al Qaeda members, to whom it had doubtless occured that the U.S. might be trying to listen in on their plans.

Prominent conservative blogger John Hinderaker rather lamely suggests that al Qaeda members were "extremely unlikely" to have been aware of FISA, because "few Americans knew anything about FISA before the current controversy arose." This assumes not only that terrorists are now following The New York Times scrupulously after apparently having avoided its routine mentions of FISA for the past five years, but that the average American citizen has no less incentive to stay apprised of U.S. wiretap practices than the average al Qaeda member. It is, in other words, the sort of argument one makes in order to have made an argument, not because one can expect it to be taken seriously.

Still, as the investigation moves forward, it does seem likely that we'll once more see subpoenas doled out to journalists—the Times' Risen at the least—in hopes of compelling them to identify the leakers. If we do, we're sure to revisit the question of how much legal deference should be afforded the journalistic prerogative to protect one's sources, especially when those sources might be described as whistleblowers calling public attention to potentially unconstitutional government action.

David Yerushalmi, writing in The American Spectator offers a preemptive attack on that line of argument that is frankly chilling in its scope:

It is not even clear that the courts have the authority to "judge" the President in his role as Commander-in-Chief. If the courts do have such a power, there is not much left to the concept of Separation of Powers….Given this state of affairs, what whistle was the leaker blowing, other than his own personal view of the world?

In other words, Yerushalmi appears to endorse Richard Nixon's view that "when the president does it that means that it is not illegal," not to mention a view of separation of powers rather different in tone than that envisioned by the founders, and one that ignores a history of reviewing and limiting executive power, even that claimed by a president in his role as commander-in-chief.

If there are serious questions about the legality of the NSA program, do we really want to treat those who unveiled it in precisely the same way we would a rogue military officer who disclosed troop movements and battle plans? Must we hew to the principle that, as the headline of one Michelle Malkin column on the investigation puts it, "a leak is a leak is a leak."

Perhaps not. As Jeffrey Toobin notes in this week's New Yorker, Judge David S. Tatel of the D.C. Circuit Court proposed an intriguing "balancing test" when he considered Judith Miller's appeal of the contempt order issued against her when she refused to identify her source in the Valerie Plame case. Tatel ultimately concluded that "Considering the gravity of the suspected crime and the low value of the leaked information, no privilege bars the subpoenas," but also suggested that "reason and experience…support recognition of a privilege for reporters' confidential sources" when the public benefit of the information provided outweighs the probable harms of its revelation. The harms, in this case, are hard to articulate clearly, while the benefits of knowing when the executive branch has determined it may reinterpret the Fourth Amendment at its pleasure seem clear as can be.

Still, if the nation's intelligence agencies appear to be suffering from an Olestra overdose, it's probably worth examining whether there aren't obstacles barring healthy debate over the propriety of controversial programs in a forum more discreet than the pages of The New York Times. One way of encouraging that debate would be expand the whistleblower protections that are available to most federal employees, which at present apply to intelligence workers only in a highly attenuated form. That would leave NSA agents more secure that they wouldn't face workplace retaliation, such as the career-killing revocation of a security clearance, for raising concerns about such programs through official channels—a letter to Congress, say.

We now know that the Times' editors debated for over a year, and under heavy pressure from the White House, over whether to kill the NSA eavesdropping story. Better whistleblower protection might have prolonged a more fruitful debate at the NSA: whether to kill the program.