an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Rahul Sagar's new book Secrets and Leaks: The Dilemma of State Secrecy is both an important new work on the deep problem of political accountability in the context of U.S. government secrecy, and it is an excellent teaching resource. My seminar on War and Security in Law, Culture and Society found the book to be their favorite so far this semester. I'm posting the student's questions and mine to Sagar via Twitter. First up: the book is a fine and helpful treatment of secrecy in the founding period and after, but the discussion of the founding does not appear to make an originalist argument. So I've asked Sagar to weigh in on what role he thinks history plays. Others might draw upon the book either as part of an original public meaning analysis, or to make a "gloss of history"/historical practice argument about how the past informs the lawfulness of contemporary government practices.
Secrets and Leaks examines the complex relationships among
executive power, national security, and secrecy. State secrecy is vital
for national security, but it can also be used to conceal wrongdoing.
How then can we ensure that this power is used responsibly? Typically,
the onus is put on lawmakers and judges, who are expected to oversee the
executive. Yet because these actors lack access to the relevant
information and the ability to determine the harm likely to be caused by
its disclosure, they often defer to the executive's claims about the
need for secrecy. As a result, potential abuses are more often exposed
by unauthorized disclosures published in the press.
should such disclosures, which violate the law, be condoned? Drawing on
several cases, Rahul Sagar argues that though whistleblowing can be
morally justified, the fear of retaliation usually prompts officials to
act anonymously--that is, to "leak" information. As a result, it becomes
difficult for the public to discern when an unauthorized disclosure is
intended to further partisan interests. Because such disclosures are the
only credible means of checking the executive, Sagar writes, they must
be tolerated. However, the public should treat such disclosures
skeptically and subject irresponsible journalism to concerted criticism.
Rahul Sagar is assistant professor of politics at Princeton University.
1) Apply the Espionage Act to all persons involved in publishing the classified information to the public, including the press.
2) Make it an affirmative defense to prosecution and trial under the act that publication of the classified information was limited to descriptions of an act in violation of the Constitution or state/federal law.
3) Create procedures to try these cases while preserving the confidentiality of the information.
Leaks to the press over policy disagreement (as opposed to illegality) like those committed by Snowden, Manning and the press would come to a screeching halt
Snowden demonstrated that a senior intelligence official lied to Congress when Senator Wyden asked him about collecting data by dragnet. Is the illegality in the lie or in its exposure? Is exposing the lie the result of a mere policy disagreement?
Evidently, Mr. DePalma believes that if the government doesn't want you to know what it's doing, SIGINT, SIGLOVE and all, it's all right with him. Rather surprising for someone who so often decries big government.
As a side note, for a reductio ad absurdum of government secrecy, see the current This Modern World at http://www.dailykos.com/story/2014/03/24/1286432/-Cartoon-The-surveillance-society-a-look-back.
Larry: Snowden demonstrated that a senior intelligence official lied to Congress when Senator Wyden asked him about collecting data by dragnet. Is the illegality in the lie or in its exposure? Is exposing the lie the result of a mere policy disagreement?
Unless it rises to perjury, the lie is not a crime.
Disclosing a perfectly legal intelligence gathering program in order to make a perjury case makes no sense. Congress has other tools to protect itself from executive lying.
Determining whether a perfectly legal intelligence gathering program is proper policy is the job of the folks we elect as president and to the Congress, not Snowden, Manning or the NY Times.
I see no reason to expand my proposed affirmative defense to Espionage Act prosecution beyond disclosures of illegal or unconstitutional acts.