The Case for Keeping Whistleblowers Nervous

A free society requires vigilant protection of a free press—and of national security. Each poses full legitimate claims, and neither should a priori trump the other.

Pawel Kopczynski/Reuters

In its coverage of the government’s investigation into national-security leaks, the media have forfeited any claim to professional objectivity. News reports are loaded with editorializing terms such as “aggressive [anti-leak] policy,” “sweeping subpoenas,” and “fishing expedition.” And while editorials in the New York TimesWashington PostThe Atlantic, and Slate are full of sound and fury, condemning these and earlier investigations as “outrageous,” “threatening,” and Nixonian, voices on the other side are much less frequently heard.

There are, however, two sides to this story. A free society requires vigilant protection of a free press—and of national security. Each poses full legitimate claims, and neither should a priori trump the other. The issue is how to sort out when one of these claims may be privileged and who is best situated to make this decision.

The media’s answer is as loud as it is clear: Newspaper editors or publishers are perfectly capable of rendering these weighty, indeed sometimes fateful, national security decisions. Thus, Leonard Downie Jr. writes that as executive editor of the Washington Post he ruled “how to publish significant stories about national security without causing unnecessary harm.” In a joint op-ed explaining their decision to publish a story about sensitive aspects of the Bush administration’s counter-terrorism efforts in 2006, Bill Keller, former executive editor of the New York Times, and Dean Baquet, then editor of the Los Angeles Times, wrote, “We weigh the merits of publishing against the risks of publishing. There is no magic formula, no neat metric for either the public’s interest or the dangers of publishing sensitive information. We make our best judgment.”

Think about this for a moment. In one corner are the White House and the CIA pleading (the word used repeatedly to describe the dynamic) with editors not to publish highly sensitive information. Cases in point include information that the United States has succeeded in planting an agent right in the headquarters of al-Qaeda, is listening in on the top brass in North Korea, and has planted a virus that damages the nuclear facilities of Iran.

In the other corner is a person who likely never served in the armed forces, has no training in assessing the limited intelligence material he or she has access to, and has strong motives to publish whatever comes his or her way. Are these the kind of people to be entrusted with making the final decision about what will or will not cause “unnecessary harm”?

Even assuming, and this is one hell of an assumption, that the editors of major publications act responsibly—what about all the other media? What if the information leaks to the New York PostBreitbart, Wikileaks, the National Inquirer—or some blogger with an axe to grind? Unlike doctors or lawyers, journalists need no license to practice; anyone, including foreign spies, can claim that they are journalists and hence are free to solicit classified information and publish it. Should they all be free to proceed unchecked? Or, is the responsible media willing to make a list of legitimate outlets that can be trusted to render these fateful decisions? Will “the” press then agree that the government can go after those that do not make the cut?

None of the editorials in the major media as much as mention that in other democracies, this issue plays out quite differently. Indeed, “we may be the only democracy in the world not to have what is called an ‘official secrets act,’” writes Daniel Gallington, who served in senior national-security positions in the Departments of Defense and Justice. The U.K.’s Official Secrets Act, much like the U.S. Espionage Act, prohibits government workers from disclosing information that is damaging to national security. But, unlike in the U.S., in the U.K. it is also a crime to publish classified information, and anyone, including journalists and publishers, can be prosecuted for airing leaked information.

Several editorials hold that these crackdowns on leaks are not really about national security but merely about the administration avoiding embarrassment or gaining political points.  In making this claim, however, the writers do not argue that this holds for the recent cases—in which national-security issues clearly were at stake. They refer to past cases, where investigative journalism did indeed play an important role in exposing government incompetence or abuse. To protect such leaks, the Whistleblower Protection Act should be extended to fully cover those in the government that deal with national security. And the media should be able to appeal to a FISA-like court that can examine security matters in secret when it holds that it is being investigated for illegitimate purposes.

Less compelling is the argument, repeated in every second editorial on the subject, that leak investigations have a chilling effect on the sources, making it more difficult for journalists to gain highly classified and sensitive information. The word “chilling” conjures up fears of silencing dissent, oppressing opposition, the end of democracy.

But take out the loaded words and review the facts as far as these are known. Scooter Libby endangered the life and ruined the career of Valerie Plame when he informed the press of her work as a covert intelligence offer, and compromised the safety of her contacts overseas. Fox News’s James Rosen revealed that the United States had found a way to eavesdrop on the North Korean leadership as it was planning to expand their testing and production of nuclear arms. The Associated Press let it be known that the government had an agent high up in al-Qaeda. And who knows? We may end up going to war with Iran because press stories blew the cover of an operation that the U.S. and Israel planted a virus that was seriously damaging Iran production of nukes.

One may respond by arguing that if we knew more about various government spy and surveillance programs, we might realize the government is exaggerating the damage to national security caused by the leaks or is just trying to cover up abuses and failures. Indeed, after several recent disclosures by the government about various classified programs, the media asked for more information. Ultimately, however, we must either trust the government and its supervisory processes by selecting vetted representatives who evaluate the appropriateness of keeping some things from the media and the public—to protect sources and methods—or we will not have any left.

Furthermore, claims that numerous investigations of leakers and the media will prevent the media from doing its job of informing the public—the “chilling effect”—are belied by core facts. Few leakers are actually prosecuted; there were “153 cases, 4 years, 0 indictments” from 2005 to 2008.*

Sources are not disappearing or drying up as a side effect of the Obama Administration’s attempts to prosecute leakers—indeed, since the investigations started there have been several more leaks—nor has the media been prevented from pointing out the failures of the government. (Indeed, the media has inaccurately attributed recent incidents to “failures of the government,” such as the questioning by federal agents of a New York man who searched for backpacks and pressure cookers at work. The media initially reported that the incident was a result of federal surveillance. In fact, it was caused by snooping coworkers who reported his search history to the authorities. It was just a regular “tip” of the sort one would actually hope would occur—concerned citizens reporting reasonably suspicious behavior to the authorities—blown vastly out of proportion in the recent media frenzy surrounding the NSA.

All said and done, some “chilling” of the leakers is called for if we are going to have any state secrets left.

* Correction: An earlier version of this post misstated the years in which these cases occurred. We regret the error.