Over the past six months, we have witnessed the publication of several pieces of classified information that appear to be extraordinarily sensitive, and extremely important tactical components of our ongoing effort to protect American citizens and property from additional terrorist attacks: The New York Times revelation last December of the NSA program conducting surveillance on Al Qaeda communications into or out of the United States, which the Times itself characterized as our "most closely guarded secret"; the USA Today disclosure earlier this month that several telephone companies were turning over databases of information about numbers called--so-called pen registers; and the Washington Post's story that some terrorists captured by U.S. forces were being held by the CIA in undisclosed locations in allied countries.
No one contests that in each instance, classified information was illegally provided to these media outlets and then subsequently published by them. And to my knowledge, no one seriously contends that the individuals who leaked the information are not subject to prosecution for violating the Espionage Act (or even subject to prosecution for treason if it could be proved that their intent in leaking the classified information was to undermine our war effort and thereby give aid and comfort to the enemy). Even those who would seek to bestow on the leaker the protected status of "whistle-blower" surely will acknowledge that the whistle-blower statute requires that the allegedly illegal activities be reported internally, through a certain specified administrative route, rather than shouted to the world from the front pages of our nation's major newspapers.
Otherwise, the whistle-blower statute would permit every government employee to be a classified information law unto himself, determining what should or should not be secret. The devastating consequences to our national security, and also to individual privacy, of such a flawed interpretation should be manifest. The question you are considering today is not the potential criminal liability of the leaker, of course, but of those in the institutional media who publish the classified information provided by the leaker.
That poses interesting constitutional questions if we assume, as I shall do, that classified information was leaked and subsequently published, and that the leaker himself, should his identity become known, is subject to criminal prosecution under the Espionage Act, among other things, for that illegal disclosure. Earlier this month, Bill Keller, Executive Editor of the New York Times, published an important letter to the editors of The Wall Street Journal challenging the notion "that when presidents declare that secrecy is in the national interest, reporters should take that at face value." Implicit in his rejection of that proposition is the view that reporters generally, and perhaps the editors of the New York Times in particular, are free to ignore the laws regarding publication of classified information when, in their view, the benefit to the public from gaining access to the information would outweigh any harm that might flow from its disclosure.
Eastman is the Henry Salvatori Professor of Law and Community Service at Chapman University School of Law; and is the director of the Claremont Institute Center for Constitutional Jurisprudence.
Now that the special prosecutor in the Plame case has stopped futzing around with Karl Rove and leading the delusional left further down the paranoid path --and there are even rumors that the lame case he has put together against Scooter Libby may be falling apart--is it perhaps too much to ask that someone take the investigative lead in a case that has far more serious repercussions for this country; and which has already done lasting damage to our national intelligence gathering in a time of war?
Or, will the usual suspects (i.e., the MSM and their leftist enablers) continue to pretend that when people with their particular ideological bent leak classified information it's obviously a courageous and proper thing to do?
And, I guess how you answer that question depends entirely upon who you consider to be the real enemy our nation faces in this century.
I suggest a little reality-testing.