In defense of publishing leaks

By Lindsay Beyerstein
June 14, 2013

Congressman Peter King (R-N.Y.) wants Guardian reporter Glenn Greenwald locked up for publishing the classified information leaked to him by Edward Snowden, the 29-year-old former security contractor who divulged details of the NSA’s PRISM data mining program to the Guardian and the Washington Post.

“No right is absolute. And even the press has certain restrictions,” King told Fox News’s Megyn Kelly on Wednesday, “I think it should be very targeted, very selective, and certainly a very rare exception, but in this case, when you have someone who has disclosed secrets like this and threatens to release more, then to me, yes, there has to be, there should be legal action taken against [Greenwald].”

For all King’s bluster, he knows perfectly well that the U.S. is unlikely to prosecute Greenwald. No U.S. journalist has ever been successfully prosecuted for publishing classified information. This may seem counterintuitive. If it’s against the law to leak classified information, why is it legal for journalists to publish it?

The answer lies in a carefully engineered balance between the government’s prerogative for secrecy and the press’s freedom to report the news. Many core government functions, like national defense, depend on the state’s ability to maintain control of sensitive information. Officials and contractors with security clearances take an oath to keep the secrets they are shown and they are warned that if they fail to do so, they may be prosecuted.

Journalism is constitutionally protected because it serves as a check on power of all kinds. We count on journalists to expose wrongdoing and force transparency on the institutions that affect our lives. We want to live in a world where every decision maker knows that, at least in principle, her orders could end up on the front page of tomorrow’s paper, because the mere possibility of accountability serves as a check on abuse of power. Every decision maker needs to know that if she pushes her underlings to violate their core values, she is ultimately at their mercy.

In practice, not many people are willing to risk jail time in order to expose wrongdoing. However, if a figure like Snowden feels so strongly about an alleged injustice that he’s willing to risk jail time to reveal it, the public ought to be able to hear what he has to say. That’s why journalists need broad legal leeway to publish leaked information.

If a government has too much power to enforce secrecy it becomes unaccountable to its people. This lack of accountability increases the risk that the government will break the law behind closed doors and it also stunts the public’s ability to decide what the law should be. In the post-9/11 era, our leaders have assembled a huge and largely opaque national security bureaucracy that is supposedly tasked with keeping us safe from terrorism. The American people are largely left in the dark about how well these programs work, how much they cost, and what tradeoffs are being made between liberty and security. When secrecy is taken to extremes, it becomes paternalistic and anti-democratic. We couldn’t have a national conversation about whether the NSA should be tracking the  metadata of our phone calls until journalists revealed that the program existed.

Some Snowden critics have attempted to deny him the mantle of “whistleblower” because he leaked information about a program that was being overseen by the FISA courts. They maintain that a true whistleblower would only sound the alarm against an illegal program. However, just because a program is being overseen by a secret court doesn’t guarantee that it is constitutional. Only the Supreme Court can decide that. But as long as a program remains secret, there’s a Catch-22 in effect: The Supreme Court can’t review the constitutionality of the program until someone sues to challenge it, but if nobody knows they’ve been targeted by a secret program, nobody has standing to bring a lawsuit.

Snowden’s revelations broke that impasse. On Tuesday, the American Civil Liberties Union announced that it had filed a court challenge to the program. Snowden’s leak revealed that Verizon Business Network Services had been ordered to give up the  metadata for all the calls made by its customers. As a customer of VBNS, the ACLU has standing to sue.

The impact of Snowden’s leak provides a compelling example of what University of Chicago law professor Geoffrey Stone was talking about when he told the House Judiciary Committee that the solution to reconciling government secrecy and press freedom was to guarantee “both a strong authority of the government to prohibit leaks and an expansive right of others to disseminate them.” Someone should read those words to Peter King.

PHOTO: U.S. Representative Peter King (R-NY) talks to the media after meeting with House Speaker John Boehner (R-OH) to discuss the relief fund hold up in Congress for Hurricane Sandy victims at the United States Capitol in Washington January 2, 2013.   REUTERS/Gary Cameron 

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