NOTE: I orginally posted this early morning, but took it down later because I wasn't happy with it. I'm reposting it with significant changes. My apologies to anyone who saw it the first time and wondered why it had disappeared.
Orin Kerr points to this USN&WR story:
In search of a terrorist nuclear bomb, the federal government [the FBI and the Nuclear Emergency Search Team, or NEST] since 9/11 has run a far-reaching, top secret program to monitor radiation levels at over a hundred Muslim sites in the Washington, D.C., area, including mosques, homes, businesses, and warehouses, plus similar sites in at least five other cities, U.S. News has learned. In numerous cases, the monitoring required investigators to go on to the property under surveillance, although no search warrants or court orders were ever obtained, according to those with knowledge of the program. Some participants were threatened with loss of their jobs when they questioned the legality of the operation, according to these accounts.
Two individuals, who declined to be named because the program is highly classified, spoke to U.S. News because of their concerns about the legality of the program. . . .
The program has also operated in at least five other cities when threat levels there have risen: Chicago, Detroit, Las Vegas, New York, and Seattle.
Kerr doesn't add much analysis, but he may be on ABC World News Tonight to talk about it.
Eugene Volokh, follows up with some substantive commentary:
The argument that the police can't aim radiation surveillance devices at homes (and likely businesses, mosques, and the like) without a warrant is a nontrivial one: It's basically Kyllo v. United States (no aiming heat sensors at homes without a warrant) meets Mincey v. Arizona (no special Fourth Amendment exceptions for investigations of very serious crimes). I discuss this in this Slate piece from 2002.
My ultimate conclusion is that such radiation surveillance from outside the buildings should be constitutional, because what's an "unreasonable search" when looking for drugs (or even for evidence of murder) becomes reasonable when looking for radiation weapons . . .
I want to caution people against assuming that going onto the property under surveillance without a warrant is per se unconstitutional under existing law. There are various reasons why entering the property wouldn't itself be treated as an unconstitutional search . . .
Some of these doctrines are quite complex and unsettled . . . I also want to stress that even if entering the property wasn't a search, doing some things on that property . . . may well be a search. But people should realize that whether "go[ing] on to the property under surveillance" is unconstitutional without a warrant is a difficult question.
Orin adds that using radiation detectors to search out nuclear materials may qualify as a special needs search. Indeed.
I won't try to add to the Fourth Amendment analysis, at least for the time being; "we have top men working on it now." (But I wonder: even if the monitoring complies with the Fourth Amendment, what about the fact that its targets seemingly have been overwhelmingly, if not exclusively, Muslims? Tips seem to be a legitimate, facially neutral justification, but I can't help wondering how much, if at all, the fact that a particular tip implicates a Muslim -- as opposed to, say, a Presbyterian -- influences the government's decision to act on or ignore it.) I'm more interested in the "two individuals" who revealed this program to USN&WR. It seems likely to me that they've put thousands, perhaps millions of Americans at greater risk by revealing what cities are -- and, by implication, aren't -- monitored for possible nuclear attacks. They've identified the surfaces and, in the process, shown the enemy the gaps. I'm sure Dallas, Charlotte, St. Louis, San Diego, Indianapolis, Sacramento, Minneapolis, Albuquerque, and Atlanta thank them. (Michelle Malkin is pissed, too; scroll down for links and commentary. Ditto for John Hinderaker.)
This situation, like the revelation of the NSA surveillance program before it, raises hard issues. There's an obvious tension between secrecy and government accountability in a free society. Many secrets are necessary but they also tend to degrade our system of checks and balances, which only works if each branch knows roughly what the others are up to.
That being the case, how should we handle putative whistleblowers who disclose secrets in the good-faith belief that they're exposing government wrongdoing? Can the government punish them? Under what circumstances should it attempt to do so? What protections, if any, do or should they have?
As I said, these (the latter two, anyway) are hard questions, to which I don't have ready answers. I've long been conscious of this problem but haven't give it much serious thought. I did, however, occasionally ask myself a closely analagous question when I was on active duty: I've sworn to support and defend the Constitution and to bear true faith and allegiance to the same. Congress has the constitutional authority to make, and has made, rules for the regulation of the land and naval forces (me). Those rules require me to obey my superiors' lawful orders, but in at least some cases I can't necessarily tell which of my superior's orders are lawful So what is my duty in the event I believe they conflict with the Constitution?
I came up with a tentative answer to that question. And since the very similar questions raised by the NSA and NEST/FBI programs have become more or less unavoidable at this point, I've given them some thought tonight as well. Unsurprisingly, the answer to the lawful orders question informs the answers to the whistle-blower questions. Here are my tentative thoughts.
How Can We Punish Putative Whistle-Blowers?
Punishing hypothetical whistle-blowers may not be as easy as you'd think: "[T]here is no single statute that provides criminal penalties for all types of unauthorized disclosures of classified information, [but] unauthorized disclosures of classified information fall within the scope of various current statutory criminal prohibitions. . . . It must be acknowledged that there is no comprehensive statute that provides criminal penalties for the unauthorized disclosure of classified information irrespective of the type of information or recipient involved." But depending on the details of a particular disclosure, one or more of several criminal statutes may apply:
* The Espionage Act of 1917, which prohibits any person from, among other things,
lawfully having possession of, access to, control over, or being entrusted with any . . .information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, [to] willfully communicate, deliver, [or] transmit . . . the same to any person not entitled to receive it . . . "
18 U.S.C. 793(d). Section 793(d) is the broadest prohibition by far, but it's rarely been used. There's controversy about whether the Espionage Act was intended to apply to disclosures to the press, such as have occurred in the two most recent cases, or may constitutionally do so. We don't have a Supreme Court case on that issue, and it appears that only one federal court of appeal has considered the question. United States v. Morison, 844 F.2d 1057 (4th Cir. 1988) (holding that section 793(d) was not unconstitutional as applied to a military intelligence employee who gave classified satellite photos to Jane's Defence Weekly).
* 18 U.S.C. 794 prohibits similar disclosures when they're for the purpose of aiding foreign governments.
* 50 U.S.C. 783 prohibits disclosures by various government employees who know or have reason to know that the person receiving the disclosure is an agent of a foreign power.
* 18 U.S.C. 798 applies only to disclosures of communications intelligence information, codes, cryptographic secrets, etc. (This might apply to the person or people who outed the NSA program but not, I think, to whoever revealed the nuclear monitoring program.)
* Finally, each person who is given access to classified information is supposed to sign a nondisclosure agreement (SF 312/SF 189/SF 189-A), which can serve as a basis for a civil action seeking equitable relief (an injunction against disclosure) or money damages.
That's by no means a comprehensive list. In other words, while not all government secrets are backed by criminal disclosure penalties, many are. And, barring screw-ups, those that aren't are protected by nondisclosure agreements. The Espionage Act provisions are by far the broadest and would certainly seem to apply
When Should We Seek to Punish Putative Whistle-Blowers?
(1) Some -- hopefully most, but probably not all -- secrets are secret for good reason. But given people's varying areas and degrees of expertise, even very smart people with access to a particular secret may not fully grasp the reasons for preserving it, or the potential costs of revealing it. In other words, they may gravely underestimate the costs of disclosing it.
(2) Even very good lawyers with near-perfect information frequently can't know with certainty whether the government is acting lawfully in a particular situation. Lawyers sometimes get the law wrong, even when it's pretty well settled. And on many issues the law isn't nearly as settled as most non-lawyers may think. (That's partly why lawyers brim with caveats and weasel-words.) In fact, as the blogospheric and MSM discussion of the NSA eavesdropping illustrates, sometimes no one really knows what the law is in a particular area, because there are good legal arguments on both sides and no court of last resort has picked a winner. All of this applies with even more force to non-lawyers.
(3) People have a moral if not a legal duty to report lawbreaking, perhaps especially by government.
(4): People with access to classified information have a moral, contractual and sometimes legal duty to preserve the secrecy of information, obtained in the performance of their duties, that could harm the United States. That's probably especially true of classified information, which the executive branch has, through a presumptively lawful process, explicitly adjudged to be potentially harmful to the United States. (Among other things, information may be classified only if: "the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security and the original classification authority is able to identify or describe the damage.")
If that's all true, it seems absurd to think that we should accept the conscience of a lone government employee or the like (or two) as the final arbiter of when apparent government lawbreaking justifies divulging secrets, and to whom. (3) and (4) present potentially countervailing duties; that's what makes this a hard question. But (1) and (2) suggest that blindly accepting individual judgments of conscience on when the duty to disclose is greater than the duty to preserve secrets would empower people to risk American lives and treasure on the basis of untrustworthy judgments about the need and likely costs of doing so. It seems to me that that would be reckless on the parts of both the individual presuming to make such a judgment and the government respecting that judgment.
The executive branch often must make determinations about the costs and legality of potential courses of action, and do so under great uncertainty. But the Constitution commits those sort of difficult judgments to elected officials. In the case of the executive branch, it commits them to the president and those to whom he delegates his authority. See Art. II (" The executive power shall be vested in a President of the United States of America. . . . he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.) It does not commit them to unelected, lower-level executive branch employees, who serve at the pleasure of the President. Their authority flows entirely from him, and can't exceed what he has given them.
In short, I think it's dangerously irresponsible to permit the development of a governmental culture in which the words "TOP SECRET - SCI" -- or even "CONFIDENTIAL" -- on a document no longer meant anything, as long as someone believed in good faith that the document contained evidence of government wrongdoing. And that's precisely the sort of culture we seem to have right now. (Again, it appears that the government has investigated and prosecuted only one unauthorized disclosure to the press in, well, a very long time.) That needs to change. Toward that end, the administration should doggedly pursue the identities of the people who revealed the NEST/FBI nuclear monitoring program and the NSA eavesdropping program, and aggressively prosecute them once they're identified.
"But wait," you say, "what about that stuff you wrote about checks and balances! If the executive branch gets to determine what's a secret, and can and does prosecute everyone who reveals any of those secrets, then it can do whatever it wants and keep Congress and the judiciary completely in the dark! There lies the road to dictatorship!" Well, maybe -- if the other two branches are asleep at the wheel.
Protections for Legitimate Whistleblowers.
Fortunately, I don't think we face a binary choice between anarchy and totalitarianism. Assuming that the judicial and legislative branches and We the People are doing our jobs, it seems to me that there are many potential protections for people who disclose classified information in the process of revealing genuine government wrongdoing -- and even, if the disclosure is handled correctly, those who disclose conduct that turns out to be legitimate.
* The seemingly little-known and less relied-upon 5 U.S.C. 7211 ("The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied."). In National Federation of Federal Employees v. United States, 695 F.Supp. 1196 (D.D.C. 1988), the District of D.C. suggested that section 7211 would prevent the enforcement of a disclosure agreement against a government employee who disclosed classified information to Congress. But see this memorandum opinion from the Clinton DOJ, arguing that section 7211 cannot constitutionally grant executive branch employees a "right" to disclose classified information to members of Congress. I'm sure the Bush DOJ takes the same view!
* The defense of necessity (in appropriate cases). Since this is a common law defense, the courts would have a little room to maneuver in applying it to whistleblower cases.
* Jury nullification -- though this only works if the courts stop refusing to permit even the mention of the term.
* Political pressure.
* Pardons, if not by the sitting president, then by a successor.
I think Congress could or additional protections, if it wished. It's one thing to say that the president may forbid excutive branch employees from disclosing secrets. But it's another to say that he may imprison them for doing so. The legislative power, including the power to define crimes and defenses, belongs to Congress. See Art. I, s 8 (powers to "provide for the common defense and general welfare of the United States," "define and punish piracies and felonies committed on the high seas, and offenses against the law of nations," "make rules concerning captures on land and water," "raise and support armies," "provide and maintain a navy," "make rules for the government and regulation of the land and naval forces," and to "provide for calling for the militia," belong to Congress.) See also the Ex Post Facto and Bill of Attainder clauses of Art. I, s 9, which imply that the power to make criminal laws generally belongs to Congress.
In case it's not clear from the earlier discussion, I think there should be a strict liability standard here: The good-faith but mistaken belief that it's necessary to reveal a secret in order to explose governmental wrongdoing should not be a defense. The law is so often ambiguous that something akin to a negligence standard would largely gut the secrecy statutes, which, again, I believe are necessary. And I think the president is entitled to a presumption that his orders are lawful, just as Congress is entitled to a presumption that its statutes are constitutional. In my view the standard should be that only exposure of secrets that are determined to be unlawful in fact should be privileged. I suspect this is an area in which overdeterrence is less dangerous than underdeterrence. When thousands, potentially millions of lives are at stake, you'd better be darned sure you're headed in the right direction before you start blazing your own trail. A little risk will encourage people to consider the potential gravity of disclosing secrets before they do so.
Finally, I think any "innocent whistleblower" defense should, like 5 U.S.C. 7211, privilege only disclosures to Congress, or committees or members of Congress. Even that poses a serious risk of broader disclosure of potentially dangerous information -- I'm not naive -- but it's less risky than running off at the mouth to USN&WR. It seems to me that Congress is in a far better position than Agent Joe Sixpack to decide what conduct is illegal, and what secrets are worth keeping.
Is the approach that I'm advocating harsh? Sure. It'd take guts to blow the whistle under these conditions. None of the foregoing guarantees that whistleblowers won't be put through the ringer, perhaps even convicted of crimes, for doing the right thing. But that just means that they'll have to have the courage of their convictions. And that's a good thing. G. Gordon Liddy aside, few people are willing to go to jail for the sake of partisan politics. So a little deterrence seems like a great way to sort the wheat from the chaff.
In the 1972 case Branzburg v. Hayes, the Supreme Court held that reporters have no First Amendment right to conceal the identifies of their government sources from state or federal grand juries. In dissent, Justices Stewart, Brennan and Marshall lamented that
A public-spirited person inside government, who is not implicated in any crime, will now be fearful of revealing corruption or other governmental wrongdoing, because he will now know he can subsequently be identified by use of compulsory process. The potential source must, therefore, choose between risking exposure by giving information or avoiding the risk by remaining silent.
Withn all due respect to the justices, I think that's as it should be. People with privileged access to government secrets should think twice before revealing them. They should be absolutely sure that they're justified in doing so, because their actions may well do great harm to innocent Americans even if they expose wrongdoing -- perhaps far greater harm than the wrongdoing itself. And if they are sure that they're justified they should have the courage of their convictions and do their duty, regardless of the consequences to themselves.