Don't Forget: Leakers of Classified Information Are Criminals

The Justice Department's subpoena of Associated Press reporters' phone records undoubtedly raises important First Amendment issues. But from the media's coverage of this incident, you would think that there were absolutely no countervailing interests, that the law was clearly on the media's side, and that what the Justice Department did was blatantly unethical and wrong. This just isn't the case.

The media's position on its powers to report on classified national security matters is extraordinary. Reporters believe that they have an absolute right to receive classified national security information even though they do not have security clearances or the means to protect this information from additional disclosures. Any other citizen that knowingly takes possession of classified information without promptly returning it to the government would be committing a crime. Ask former national security adviser Sandy Berger about the bite of those laws.

The media also claims a the right to publish as much classified information as they please without consulting with the government agencies who determined that public disclosure of the information would cause "serious" or "grave" harm to the national security. Responsible media outlets do interact extensively with the government when they have a national security story and allow the government to make its case as to why a story should not run at all, whether it needs to be delayed, or whether certain information should be withheld. But then the media outlet makes its own judgment on what it believes are valid national security interests and which are not -- essentially arrogating to itself the right to make these difficult judgment calls that have life or death consequences. Of course, in the modern world with bloggers, pseudo-journalists, and media voyeurs like Julian Assange -- the government has to deal with the non-responsible "media" as well -- who do not interact with the government at all and publish classified secrets regardless of the news value, but instead just to prove that they can.

But there is more. The media claims an unfettered right to communicate with "confidential sources" in the government who are providing them with classified information. The media calls them whistle blowers. But there is another word for these individuals -- criminals. These government officials have entered into a written agreement to protect the classified information to which they have access and not provide it to anyone that 1) does not have a security clearance and 2) does not have a "need to know" this information for a legitimate governmental purpose. When a government official discusses classified information over the phone with a reporter or provides the reporter with classified documents -- he is violating this oath and, in almost every circumstance, committing a crime. Ask Bradley Manning about the bite of these laws.

The hard line position the media takes with respect to this -- which is dominating the airwaves at the moment -- is that the government is barred from using normal criminal investigative practices like issuing subpoenas to investigate this criminal conduct by its own employees. Remember -- the Justice Department is not trying to prosecute the Associated Press -- rather it is trying to find out whom in the government is breaking the law by providing classified information to the Associated Press.

The media considers these confidential sources to be heroes willing to risk their careers to expose governmental wrongdoing and promote the common good. That may be true in some cases but certainly not all. Sources may have a variety of motives for leaking. They may not like the decisions that their superiors have made on a program or policy and want to influence the policy debate. Lower level government employees have no right to do that. They may have a personal grudge. They may want to inflict political harm on a president or administration that they oppose. They may want to leak just because it gives them power that they would not otherwise have.

Furthermore, there are many ways for genuine whistle blowers who want to uncover waste, fraud, and abuse to pursue this worthy objective other than picking up the phone to call the New York Times. Every agency in government has an inspector general charged with receiving whistle blower complaints, investigating it, and making sure that retribution is not taken against him by the agency. Whistle blowers are also protected if they bring the information to members of Congress. There are special programs in the defense and intelligence agencies for whistle blower claims that involved classified information. Could these programs be stronger? Sure. But any government employee has an obligation to try using them first if they want to ensure that wrongdoing is exposed -- not to leak to the media.

In discussing the AP matter, we ought to consider the actual motives and consequences of the (leaker, whiste blower, confidential source, perpetrator -- chose your label). This person is blatantly deciding for himself to second guess the judgments of others -- who have a higher rank and responsibility than them within the government -- that the public disclosure of a piece of information will not harm the national security. Or, they don't care about the consequences, and decide to disclose the information to reporters for some other purpose. This is the corrupt conduct that the media believes must be protected at all costs.

To be sure, there are serious interests at stake in the other direction. A functioning democracy relies on a vigorous media to keep the government accountable. This is especially true in important matters of national security. The massive secrecy apparatus of the government makes the media's job extraordinarily difficulty. And the government flagrantly over-classifies information to such an extent that it is virtually impossible for reporters to have any useful discussions with government officials (even those properly authorized to speak with the media) without running afoul of classification rules. The Freedom of Information Act does not function quickly or effectively enough for reporters to cover either breaking news or developing stories. The declassification barely works quickly enough for historians, let alone journalists.

So this is a complex issue with no easy answers. The drumbeat accusing the Justice Department of First Amendment violations and Nixonian tactics, however, is way off base. We need a free media and a national security apparatus that can protect its valid secrets. Perhaps this episode will start a deeper conversation about how we can better achieve the proper balance between the two.

David H. Schanzer is associate professor of the practice of public policy and director of the Triangle Center on Terrorism and Homeland Security.  This commentary was initially published in The Huffington Post.