By J. David Cox Sr. |
Imagine the Department of Homeland Security prepares a top secret report highlighting security vulnerabilities around the nation's nuclear power plants. In violation of his duty to protect classified information, an employee leaks it to a reporter, who publishes an article about this scandalous lack of security. Shortly thereafter, terrorists use the reported information to plan a devastating attack, which is narrowly averted at the last minute.
Most would agree it's appropriate to punish the person who leaked the classified report, damaged national security and put the American people at risk. If getting information from the reporter is off limits, however, then finding the responsible employee will be almost impossible.
If a whistleblower provides information to the press about the misconduct of others within a government agency or a corporation, there is rarely a need to seek information from the reporter. Prosecutors usually have no reason to go after the leak; they can subpoena documents and witnesses and directly investigate the reported misdeeds.
But a case in which the leak itself is the crime – such as a leak of classified information – is very different. There are usually only two witnesses: the leaker and the reporter. Even if the suspected leaker is identified, he has a Fifth Amendment right to remain silent. That leaves the reporter as the primary, and possibly only, source of information. If a privilege prohibits seeking that information, the crime likely will go unpunished.
Supporters of a reporter's privilege argue that, without it, confidential sources will be "chilled" from coming forward for fear of being exposed. As the Supreme Court has observed, history shows these arguments to be speculative at best. Watergate, the Pentagon Papers, Iran-Contra, secret CIA prisons, abuses at Abu Ghraib – all of these stories involved leaks that occurred without a reporter's privilege. Our robust free press has flourished for more than 200 years without such a privilege, with no sign that leakers feel a chill.
What's more, if fear of exposure means that criminal leaks are deterred, that is in the public interest. We generally think it's a good thing when people abide by the criminal law.
Some may believe the government classifies too much material, but most would agree there is at least some critical national security information that must be protected. It would be nonsensical to criminalize leaks of such classified information but then shield from prosecution only disclosures made to reporters – the very ones most likely to ensure that the information is widely disseminated.
Subpoenas to the press are, and should be, rare, but in some cases there may be no alternative. If the government keeps too many secrets, then we should reform the laws concerning classified information. Creating a reporter's privilege that would allow leakers to disclose with impunity any classified information, no matter how potentially damaging, is not the solution.
About Randall Eliason Professorial Lecturer in Law at George Washington University Law School
Michael Berry Media Lawyer and Partner at Levine Sullivan Koch & Schulz, LLP