National security information flow: from source to reporter's privilege.

• Author: Bejesky, Robert
• Position: I. Introduction and Analytical Framework through V. Unauthorized Leaks, p. 399-434

I INTRODUCTION AND ANALYTICAL FRAMEWORK II CLASSIFICATION III SELECTIVE DECLASSIFICATION IV AUTHORIZED LEAKS V UNAUTHORIZED LEAKS VI REPORTER'S PRIVILEGE AND RISKS VII RECENT HIGH-PROFILE PRECEDENT VIII CONCLUSION INTRODUCTION AND ANALYTICAL FRAMEWORK

While democracy presumes that government information and proceedings should be open to adequately inform the public on political issues, citizens have no general First Amendment right to access government information. (1) Moreover, because information is classified under national security--partially due to the presumption that the public should not possess some information for its own good--additional restrictions (2) and jurisprudential considerations occasion ataxia. That notwithstanding, when the Freedom of Information Act ("FOIA") was enacted in 1966, Congress espoused that "[a] democratic society requires an informed, intelligent electorate, and the intelligence of the electorate varies as the quantity and quality of its information varies. (3)

Since then, members of the judiciacy have alluded to, and even expanded upon this sentiment. In New York Times Co. v. United States, for example, Justice Douglas emphasized that "[s]ecrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. (4) Justice Stewart, underscored stasis with secrecy and openness when he explained that "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act. (5) Likewise, United States Circuit Court of Appeals Judge Damon Keith opined that "[d]emocracies die behind closed doors.... When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation. (6)

Each of the forgoing contentions, while of a different character, are of equal importance to the following framework, which examines twelve possibilities of national security information flowing to the public.

Correct False Misdeeds Classified 1 2 3 Declassified 4 5 6 Authorized Leak 7 8 9 Unauthorized Leak 10 11 12 First, for the vertical process variable, when data relevant to national security are gathered from confidential sources or methods, they are classified routinely, and other information can be classified by presidential authorization. (7) Second, for the horizontal substantive variable, classified data may be correct or amiss. By comparison, court processes endeavor to validate factual records through transparency, evidentiary rules and procedures, authentication standards, and perjury penalties. (8) Secret data lack these verification protections even though national security estimates, deriving from classified information, can have poignant and widespread societal impact when provided to policy makers and the public. (9) Information and estimates that are declassified and accurate, a movement from Quadrant one to four, may be a dissemination of high public value, while information and estimates that are declassified but false, a movement from Quadrant two to five, are likely to negatively impact public discourse. For the latter, the public is better off without the information, (10) since there is an overestimate or underestimate of threats that may skew informed public choice. (11)

Movements among Quadrants seven, eight, ten, and eleven represent the fact that accurate or inaccurate classified information can be leaked by someone with authority (an "authorized leak") or by someone without authority to declassify (an "unauthorized leak"). An authorized leak may be an anonymous government communication, which is generally disfavored in American jurisprudence because public officials can avoid responsibility for content. (12) An unauthorized leak may also be, and more frequently is, a whistleblower action that endeavors to unveil some government misdeed. (13) If a recipient-journalist or news outlet decides to publish the details of the leak, the journalist or outlet faces a low risk of prosecution; this implicates the reporter privilege question, which is discussed at length below. (14) The source, conversely, may have committed an illegal act, even if the information is accurate and of high public value. (15) Moreover in 2010 and 2011, bills were proposed (and are still pending) in Congress to expand the definition of espionage and, therefore, potentially increase the probability that journalists could be prosecuted. (16)

Sections II, III, IV, and V address the details of this analytical framework with reference to how the president chooses to classify, declassify, or leak government information, or whether an unauthorized leak is made against the president's will. These sections further illustrate that each type of dissemination has disparate value to public discourse. Section VI addresses the flow of classified information from a confidential source to the reporter, as well as the utilities, benefits, and risks inherent in the media outlet's decision to publish the information. Section VII poses and then assays practical questions emanating from the Plame, Miller, and Libby investigation, which recently brought reporter privilege questions to the forefront of public attention.

CLASSIFICATION

Failure to maintain secrecy could injure a country when classified national security information is crucial to present day foreign-policy decisions, (17) place diplomacy at a relative disadvantage, involve active military operations, derive from covert sources who were either promised anonymity or remain active, or sire an unwarranted and undesirable public repercussion. White House Executive Orders designate what should be a classified secret, but the president has considerable interpretive latitude and the ultimate decision over what, how, and to what extent information should be classified or declassified is generally unreviewable. (18) Legal standards for classification may appear objective and delimiting, (19) but the quantity of classified government material is massive today. (20) In practice, the president's "principal method of information control" is the "virtually unbridled power to control the flow of national security information .... [via] [t]he classification system." (21) The president can use intelligence to shepherd public opinion, frame issues, persuade Congress and citizens, prime the media, and even beguile to achieve assent for policies. (22)

Laws also parameterized who can access intelligence. (23) For government processes, when Congress or courts require evidence based on classified documents, competing obligations can emerge (24) and beget some balance between secrecy and heightened access. (25) For the general public, the FOIA provides mechanisms to attain government information, including using the judicial system against the executive's will. (26) However, FOIA results may be suboptimal due to expense, time required, information overload, (27) and return of redacted documents. Even if responsive documents exist, they may not be dispensed because classified records are expressly exempted from FOIA disclosure. (28)

Employees throughout the U.S. government accumulate and assess information for their official responsibilities, but officials inducted into the national security community are accorded privileged access; must adhere to designated procedures, rules, and practices; and are subject to contractual and criminal law penalties for unauthorized disclosure. (29) For example, if a Central Intelligence Agency ("CIA") officer publicly discloses classified reports without CIA approval, there could be a criminal law violation that precludes assessing the balance between the harm from disclosure and the public interest in receiving news derived from the disclosure. (30)

Snepp v. United States, which is governing precedent on questions of unauthorized disclosure, involved a former CIA operative who published Decent Interval, a book about CIA activities in South Vietnam. (31) The CIA was not required to prove that the book actually contained classified information, but that it was published without a CIA prepublication review. (32) The applicable secrecy clause stated that an agent promises not to discuss, divulge, or publish "any information or material relating to the Agency, its activities or intelligence activities generally, either during or after the term of [his] employment ... without specific prior approval by the Agency." (33) The Supreme Court upheld the government's injunction against Snepp, reasoning that agents have a fiduciary relationship to the CIA, which grants the CIA the right to censor publications involving the Agency and its operations because higher-level officials have a "broader understanding" of what could be harmful to the Agency. (34) Consequently, even with whistleblower...