National security leaks and constitutional duty.

Author:Kasner, Alexander J.

INTRODUCTION I. THE FIRST AMENDMENT CASE A. An Employee's Right to Speak and Publish B. A Public Right to Know II. LEAKING AS CONSTITUTIONAL DUTY A. The Case for Constitutional Duty 1. The Article VI oath of office 2. The Take Care Clause B. Constitutional Duty in the National Security Context III. THE CONTOURS OF CONSTITUTIONAL DUTY A. Who? Principals, "Officers, " and Employees B. How? The Meaning of Constitutional "Support" 1. Inherent meaning 2. Liquidation 3. The "great exception" C. What? "This Constitution " and Open Constitutional Questions D. Accordingly? Defenses, Obligations, and Policy Fixes 1. Defenses 2. Obligations 3. Policy CONCLUSION: TAMING THE LEAKY LEVIATHAN INTRODUCTION

In 2013, Edward Snowden leaked thousands of National Security Agency (NSA) documents to the press and public, detailing practices that he believed violated the Fourth and Fifth Amendments of the Constitution. (1) In response, the U.S. government charged him with multiple espionage-related violations, including theft of government property, unauthorized communication of national defense information, and willful communication of classified communications intelligence information to an unauthorized person. Faced with the prospect of a long imprisonment, Snowden fled the country and is now in exile. (3) Snowden's ideas about the Constitution are not altogether unreasonable: many judges, (4) academics, (5) and policymakers (6) have questioned the constitutionality of NS A surveillance programs, and the dialogue over the Constitution's treatment of privacy is at a fever pitch. And yet, despite some fervent calls for a presidential grant of clemency, (7) it appears that Snowden will have no legal defense--statutory or constitutional--for his actions.

The Snowden disclosures are merely the "latest outbreak of leak panic," (8) the most recent chapter in a long line of messy disclosures and exposed secrets. As David Pozen put it succinctly, "Ours is a polity saturated with, vexed by, and dependent upon leaks." (9) Concern over leaks has escalated in the past decade, (10) during which "[h]undreds of serious press leaks" of classified documents and information have made their way into the public eye. (11) At the center of the battlefield are executive officials who have taken to heart U.S. Ambassador Henry Cabot Lodge Jr.'s view that leaks are a professional "prerogative." (12) In the 1980s, for instance, it was found that forty-two percent of senior government officials "fe[lt] it appropriate to leak information to the press." (13) Sometimes such high-level leaks are even deployed purposely and strategically by presidential administrations, which then exercise their own prerogative to not prosecute the offenders ordered to carry out such leaks. (14)

Yet just as the number of strategic leaks for political gain has reached a high point, so has the number of prosecutions of executive employees who leak information due to private ethical concerns. The Obama Administration Department of Justice, for instance, has initiated six leak-related prosecutions--twice as many as all previous Presidents combined. (15) The stories of these leakers are sobering. Most leakers are prosecuted under the Espionage Act--the same piece of legislation used to convict Aldrich Ames, a rogue CIA agent who, in the 1980s, aided the Kremlin in assassinating American informants. (16) And though the typical sentence for such a breach after a guilty plea is between one and two years in federal prison, it may range upward to decades of incarceration. (17)

This asymmetrically severe treatment of some national security leakers becomes even more troubling if we gaze down upon it from a constitutional vantage point. The Constitution has been generally understood to endorse a bifurcated treatment of the actors involved in national security leaks: On one hand are publishers and journalists who spread the reach of the disclosed information and whose actions have been traditionally considered to be at the core of the First Amendment's protections. When done by the press, "bar[ing] the secrets of government" is both "courageous" and "serv[es] die purpose that the Founding Fathers" intended. (18) On the other hand are the government employees who actually disclose the information. It is almost uncontroverted that they are constitutionally helpless, if not viewed with disdain. Yet their role is no less indispensible in catalyzing the constitutional conversation.

The legal terrain of national security leaks is miry and muddled, but it is also fertile ground for a larger discussion about the role of lawbreakers and whistleblowers in our constitutional order. Should they be tolerated? Must they be tolerated? And if so, how do we answer affirmatively while still remaining faithful to the rule of law? Moreover, how do we separate the wheat from the chaff, the Prometheus from the conspiracy theorist with security clearance?

Legal scholars and lawyers engaged in these constitutional considerations generally take one of three routes. Some scholars debate, with little progress, whether First Amendment protections for press and publishers can be stretched to cover leakers as well. (19) Others fixate the conversation on the structural issues of the unitary executive and the President's power to keep secrets and withhold information, (20) as well as his power to exercise unfettered control over his officers and employees. (21) And a third group has begun to tease out, in a cursory manner, a contention that leaks may be best viewed as the product of some ethical obligation of government employees. (22)

This Note adds a new voice to the constitutional debate by refocusing the conversation onto its most fundamental questions. Why do we celebrate certain leakers? It is not because uninhibited speech is per se good, nor because government secrecy or the unitary executive is per se intolerable, but rather because of three simple notions: government whistleblowers are in a special position of public trust, bring to light potentially unlawful behavior, and are integral to ensuring public accountability for unlawful behavior. This reconception provides a powerful middle ground, endorsing the conscientious leaker while rejecting a broad endorsement of all national security leaks regardless of the disclosure's content and the other channels of review potentially available.

More critically, however, conceptualizing whistleblowers as standing as the vanguard against unlawfulness is faithful to the Constitution's very text. Specifically, it is in concert with the Article VI Oath Clause, which provides that "all executive ... Officers ... shall be bound by Oath or Affirmation, to support this Constitution." While this language is seemingly innocuous, when its constitutional context, history, and accepted understanding are closely scrutinized, it reveals a great deal of meaning and structural importance. This Note provides one of the first concentrated studies of these aspects of the Oath Clause. And it discovers a constitutional duty--emanating from the Article VI Oath Clause and buttressed by various constitutional provisions and structures--of executive officials to actively resist violations of the Constitution.

But this duty does not always necessitate an unfettered right to leak privileged information: supporting the Constitution can take many forms, and unbounded disclosures of broad swaths of information is likely indefensible. Accordingly, this Note explains the extent of the duty. It questions whether its protections are limited to executive "officers," suggests an interpretation of supporting the Constitution that is informed by congressional liquidation of constitutional meaning through whistleblower statutes, and discusses whether "this Constitution" being defended reaches only those questions previously settled by the judiciary.

Part I discusses the relevant First Amendment arguments that scholars have offered in favor of constitutional leaker protections. While they take many forms, the free speech defenses track two general categories: an employee's right to speak and a utility-driven defense of the public right to know. While threads of these arguments are valuable to our discussion, they run into overwhelming difficulties. Namely, they are inconsistent with current doctrine and are particularly ill suited to the special case of national security leaks.

This Note presents the alternative constitutional argument--a duty of executive officials to support the Constitution--in Part II. After identifying the textual, historical, and structural support for this principle in the Constitution, I turn to why the duty framework might be particularly justifiable in the present controversies regarding national security, secret keeping, and standing doctrine.

Part III explores the bounds of the constitutional duty. In particular, it resolves three issues: First, when the Constitution speaks of executive "officers," this should be understood to generally encompass the same group of actors as those considered in Article II for structural, if not textual or historical, reasons. Second, the constitutional requirement that these officers "support" the Constitution broadly encompasses both a negative duty to support, which includes conscientious objection and resignation, and a more limited positive duty to support--particularly, a duty to disclose such information to other government officials of all three branches covered under the Article VI Oath Clause and the Speech or Debate Clause. Third, "this Constitution" being protected is the Constitution's text in concert with principles of judicial supremacy; in respect of this relationship, I propose a tripartite model that limits but allows constitutional interpretation by executive officers.

This Note concludes with some thoughts on how we might grapple with the implications of an officer acting in accord with her constitutional duty. In its...

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