A Crackdown on Publishing Leaks

An article published by the Washington Post this morning outlines new measures being taken to investigate and pressure individuals in government and the Press believed to have leaked or published information about classified programs. The author does a great job putting these leaks into historical context, noting that other administrations have dealt with this issue—most responding without prosecution despite acknowledging the problems associated with leaking. I’m sure we can all agree that classifying information is necessary in specific instances. But in a time when we have a government that refuses to hold itself accountable through separation of powers/checks and balances and when people are scared of shaking the roster of players in government to the point of paralysis because of the constant barrage of terrorist threats and misleading information, what other measure of oversight do we have? If the administration and the intelligence community want to reduce leaks, we first need a self-disciplining government and electoral playing field that encourages fair democratic action—and we have neither.

When Mr. Tice leaked the secret NSA surveillance program to the New York Times and informed Congress of his concerns in 2003, he had hoped that action would be taken to stop the program which he believed to be unconstitutional. He wasn’t leaking the program for political reasons—unlike the motivation behind Executive Branch leaks (in fact, Tice voted for Bush and claims to be a long-time conservative). Rather, he simply believed the program was illegal and felt that his reports to Congress, which are legal under the Intelligence Community Whistleblower Protection Act, would fall on apathetic ears—a belief that was unsurprisingly correct. The Justice Department (which means Bush) quickly announced an investigation into the NSA program leak only after it had been published in the New York Times over one year later. Why not when they found out about the leak a year prior to the publication? Why not a silent investigation? They wanted to pressure other employees and the Press with strength of public outrage over treason-like leaking behind them. Fortunately, the public seems to be unconvinced that leaking the information was wrong.

By leaking the story, the Press was made aware of a legally questionable program that would have otherwise remained secret. If not leaked, the program could easily have escalated into something far more intrusive and illegal because Congress had no means or desire to act with oversight. Indeed, even after knowledge of the program spread to Congress and the public and general concern about civil liberties sparked intense debate across party lines, most of Congress was still reticent to take real action to even suspend the warrantless searches, let alone stop them altogether. Does this justify illegal acts by government employees (leaking classified information is illegal according to The Espionage Act)? Yes, because the purpose of encouraging whistleblowers is undermined because Congress is sympathetic only to policies advertised within the guise of Bush’s antiterrorism frames, and these dissenting employees have no internal credibility to curb illegal policy within their agencies.

What other choice do they have other than to exercise their First Amendment rights? Does the claim that the program is necessary for preventing terrorism—a dubious claim—and that the program must remain secret to be effective provide ample reason to counteract justification for public knowledge of the program? Even if we give Bush the benefit of the doubt on this one, this claim still fails to justify punishing employees or journalist who feel they are protecting Americans MORE by informing them of government actions that may, and probably are, illegal.

Once again, the onslaught of threats via investigations by a heavy handed Executive Branch and selective cooperation from the intelligence community (if only similar energy were put into other matters that actually do relate to national defense) have put pressure on the Press and government whistleblowers in a way that smacks of autocracy.

I’ll say it again: I’d rather reveal a questionable program—even if it is vital for national defense to keep it secret—than to have our constitutional tools (i.e., separation of powers/checks and balances) quietly violated by an administration with a widely acknowledged unwillingness for honesty, accuracy, and fairness.

Given the behavior and motivations of this administration, I say that federal employees and journalists should subscribe to the following: if in doubt, you must speak out. The time for cautiousness is over. If not, we'll soon find ourselves realizing that we've lost the liberties that we're supposedly trying to protect.