A Stitch in Haste

"The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic."
--Justice Hugo Black, New York Times v. United States, 1971

The Justice Department has initiated an investigation into the leak to the New York Times of the administration's constitutionally suspect warrantless wiretapping of domestic communications.

While they're at it, perhaps they'd like to open an investigation of the President's repeated lying to the American people on the subject.

Meanwhile, it's important to remember that the law making it a crime to leak sensitive information to the media applies to the government source, and not to the New York Times, which is protected by the First Amendment generally and the so-called "Pentagon Papers" case specifically.

New York Times v. U.S., 403 U.S. 713 (1971), made it clear that there is a strong presumption that freedom of the press trumps vague, open-ended warnings about "national security" and that, if the government wants to censor, it must show, at the absolute least, that there would be "direct, immediate, and irreparable damage" to our vital interests. Of course, to this "security at all costs" White House and its apologists, one can expect a fast and loose definition of "direct," "immediate" and "irreparable."

On the other hand, the Pentagon Papers case was only about prior restraint (i.e., censorship). It did not block criminal prosecutions after the information was published. Nor did it say anything about punishing leaks by government employees.

In this I wonder whether New York Times v. U.S. goes far enough. It seems to me that there should be at least some modest form of "whistleblower" protection for government employees (a/k/a "public servants") who leak information about illegal or constitutionally suspect activities.

We are not talking here about disloyal subversives who disclose classified information to aid the enemy (e.g., outing an undercover agent) or for mere financial reward (e.g., selling secrets to foreign powers). This leaker was, as far as we know, a patriotic American trying to expose, for our own sakes, a dubious government program.

Such a person is not a traitor — and probably should not be deemed a criminal either.

More thoughts at Concurring Opinions, Moderate Voice, Running Scared, De Novo.