< Doing the Leak Investigation Dance


Friday, January 06, 2006

BROOKE GLADSTONE: On December 16th, after holding it for more than a year, the New York Times ran a story by James Risen and Eric Lichtblau that disclosed the President had authorized the National Security Agency to wiretap people in the U.S. without court warrants. Reportedly, the President met with the Times in a last-ditch effort to stop the story, but once it was published the President, his Vice-President, and his Press Secretary came out swinging. [START CLIP]

PRESIDENT GEORGE W. BUSH: This is a limited program designed to prevent attacks on the United States of America. And, I repeat, limited. I, I think most Americans [CHUCKLES] understand the need to find out what the enemy's thinking. [OVERTALK]

VICE PRESIDENT DICK CHENEY: Another vital step the President took in the days following 9/11 - [OVERTALK]


VICE PRESIDENT DICK CHENEY: - was to authorize the National Security Agency to intercept a certain category of terrorist-linked international communications. There are no communications more important to the safety of the United States than those related to al Qaeda that have one end in the United States. If we'd been able to do this before 9/11 - [BOTH AT ONCE]

PRESS SECRETARY SCOTT MCCLELLAN: This is a vital tool in our efforts to save lives and prevent attacks from happening. It is very limited in nature. We are a nation that is at war. The President is the Commander-in-Chief, and after the attacks of September 11th he made a very firm commitment to the American people. [END CLIP]

BROOKE GLADSTONE: Two weeks later, the Justice Department announced it would launch an investigation into who leaked the existence of the secret program to the press. It's a tricky case, because while defenders of the program deem the leaker a lawbreaker, others regard him or her as a constitutionally protected whistleblower. Here's reporter James Risen talking with Katie Couric this week. [START CLIP]

JAMES RISEN: In this case - I've been a reporter for about 25 years - this was the purest case of a whistle, of whistleblowers coming forward, people who truly believed that there was something wrong going on in the government, and they were motivated, I believe, by the purest reasons to come forward.

KATIE COURIC: But many critics have - [AUDIO FADES OUT]

BROOKE GLADSTONE: Whether James Risen's source was a traitor or a patriot makes all the difference for that reporter's role in the leak investigation. It could be a replay of the Valerie Plame case, where the judge didn't buy reporters' claims that they have a right to protect their sources. Or it could be a new game altogether. University of Chicago Law Professor Geoffrey Stone has joined us before to parse the reporter's privilege to protect sources, so I asked him what he thinks will happen next.

GEOFFREY STONE: They will pursue the leaker because it is their belief that this was a criminal offense - that is, the disclosure of the information was a criminal offense. Putting aside the reporter, let's assume they identify the leaker by an internal investigation. If they believe this is criminal, they will file an indictment and the lawyer for the defendants will then move to dismiss the indictment on the ground that they did not commit a criminal offense because they had a First Amendment right to disclose the information, and that's how that issue will be decided. If we're talking about the reporter privilege, it's more complicated. So the second variation is the Department of Justice doesn't know who the leaker was, and so they call James Risen to the grand jury and they say, "Tell us who your source was," and James Risen says, "No, I refuse to do that." In that context, James Risen is in trouble because there is no federal reporters' privilege. So the most likely outcome, in my view, is that the Department of Justice, if they don't identify the source without having to call Risen, they will call him, they will bring him to a grand jury, he will claim that he does not have to disclose the information and the judge will find him in contempt.

BROOKE GLADSTONE: The time was courts were reluctant to prosecute leak cases. Do you think that the Valerie Plame case and the jailing and ultimate release of New York Times reporter Judith Miller when she gave up her source has emboldened courts to act aggressively in this area and jail reporters?

GEOFFREY STONE: Once an event like that happens, it makes it more likely that it will happen again. And so in this situation, I think that the only way that Risen would not be held in contempt, if it gets to that point, is if the judge decides to look into the question as to whether the NSA program itself was unlawful or unconstitutional. I don't think there's any question at all that the public employees in this situation violated the law by disclosing the information. The only question here is whether they had a constitutional right to do so.

BROOKE GLADSTONE: Geoff, an editorial in the New York Times on Wednesday said, "Leak investigations are often designed to distract the public from the real issues by blaming the messenger." And it goes on, "Take the third leak inquiry into a Washington Post report on secret overseas CIA camps where prisoners are tortured or shipped to other countries for torture. The administration said the reporting had damaged America's image. Actually, the secret detentions and torture did that." What do you think? Do you agree that leak investigations are often designed as a distraction?

GEOFFREY STONE: There's no doubt that they can be used in that way, and I also have no doubt that in the current, for example, National Security Agency spying instance, the administration is using the investigation in order to focus public attention on the "disloyalty," in quotes, of the leakers and of the reporters. At the same time, that's not to suggest that having an investigation in that circumstance is in any way inappropriate. It is my view that the NSA spy program was unlawful and that what really has happened here is not a major danger to the national security but a major danger to the credibility of the administration. And therefore, I buy into the idea that the investigation of the leakers is intended, in effect, as a way of distracting attention from what is the serious issue, indeed, the most serious constitutional issue I think since Watergate.

BROOKE GLADSTONE: If, as you say, the government has every legal right to pursue these leakers if they believe that they're breaking the law, and if you believe that this may be the most serious constitutional breach since Watergate, do you then believe that there really needs to be a national shield law to protect reporters who are engaged in presenting the views of whistleblowers to the public to be protected from these sorts of investigations?

GEOFFREY STONE: I believe there needs to be both a whistleblower law and a shield law that protects and facilitates sources who are otherwise anxious about disclosing information that should be disclosed to the public. What makes that statement an ambiguous one is that there are circumstances where the leaker believes that he's doing a good thing, when, in fact, he's doing a bad thing. That's at the heart of this problem. Here the leaker may believe that the NSA program was unlawful and unconstitutional, that in fact, the - [OVERTALK]

BROOKE GLADSTONE: And you believe that yourself.

GEOFFREY STONE: I do believe that myself. Absolutely I believe that. But it's also possible that I'm wrong and they were wrong, and a court may later find that. And then the problem is, well, are these people heroes or are they villains?

BROOKE GLADSTONE: All right. Geoff, thank you very much.

GEOFFREY STONE: My pleasure. Any time, Brooke.

BROOKE GLADSTONE: Geoffrey Stone is the authority of Perilous Times: Free Speech in War Time. He spoke to us from the University of Chicago.