Home Judge’s Opinions Once in a While, a Good Leak

Once in a While, a Good Leak

by Andrew P. Napolitano
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Last weekend, the FBI arrested an employee of a corporation in Augusta, Georgia, that had a contract with the National Security Agency and charged her with espionage. Espionage occurs when someone who has been entrusted to safeguard state secrets fails to do so. In this case, the government alleges that the person to whom state secrets had been entrusted is 25-year-old Reality Leigh Winner, who had a top-secret national security clearance.

The government claims that Winner downloaded and printed a top-secret NSA report, removed the printed version of the report from her employer's premises, and then mailed it to The Intercept, a highly regarded international media outlet that exposes government wrongdoing.

The government says it learned of this when folks from The Intercept called the NSA and told agents what they had received and what they planned to publish. After hearing agents describe the potential harm to their work if the full report were to be released, The Intercept agreed to redact certain portions, though it published the bulk of the report.

The report is startling, as it reveals that the NSA discovered that Russian hackers in late October and early November 2016 planted cookies (attractive, uniquely tailored links) into the websites of 122 American city and county clerks responsible for counting ballots in the presidential election. This means that if any employee of those clerks' offices clicked onto any cookie, the hackers had access to — and thus the ability to interfere with — the tabulation of votes. This NSA report is at sharp odds with the denials of Russian involvement in the 2016 presidential election made last year by President Barack Obama and made last week by Russian President Vladimir Putin, and it is profoundly more detailed and alarming than anything the federal government has thus far revealed.

Doesn't the American public have the right to know what the Russians did in the election? Is it necessarily criminal to make such things public? Isn't the NSA supposed to protect us from foreign hackers who are attempting to interfere with the core American electoral process — the election of the president — and not keep us in the dark if it fails to do so?

Here is the back story.

I have argued since 2013, when we first learned from the Edward Snowden revelations that the NSA has gathered too much data about too many innocent people since 2005, that it does so in violation of the Constitution and federal law and that it suffers from information overload — meaning it has more raw data than it has resources to examine in a timely and effective manner.

The result of all this is liberty lost — as innocents have their privacy invaded and, as we know, sometimes even revealed to the public for political purposes — and our safety compromised, since the NSA repeatedly discovers that it had all relevant communications of killers before the killings but does not connect the dots until too late, as in Boston, San Bernardino and Orlando; and the same can be said for our British partners in Manchester and London during the past two weeks.

The stated purpose of all this suspicionless bulk spying on all of us all the time is to keep us safe. Yet we know that the NSA has failed at that, and we know from a recent judicial condemnation of the NSA that it has failed to protect our liberties. Now we know that it has failed to protect our presidential election.

Is it a crime to reveal what the FBI says Winner revealed? In a word, yes. Yet I argue for understanding the full picture here. If she did as the FBI alleges, she committed a violation of federal law. However, it appears she did not do so for petty, political, financial or venal reasons; rather, she may have done so for the American people to know that the spies who have failed us would keep us ignorant and vulnerable.

Can The Intercept be prosecuted for revealing top-secret material to the public? In a word, no. The Supreme Court made clear in the Pentagon Papers case in 1971 that a media entity may freely publish matters that are material to the public interest, notwithstanding the source of the matters or the behavior of the source that delivered the matters to it. This is grounded in the essence of personal liberty in a free society. In matters of material interest to the public, the public's right to know what the government is doing or has failed to do constitutionally trumps the government's right to secrecy.

Where does all this leave us? Reality Winner may very well be a patriot who risked her career and freedom to warn the American public of what the government was afraid to acknowledge — that mass spying keeps us neither safe nor free. No doubt the government doesn't see it that way. This case has embarrassed the government, and she will most likely be prosecuted. I hope the judge in her case lets her lawyers argue that because we live in perilous times, the people are entitled to know what the government does and fails to do in our names to address the peril so we can change the government when it fails.

The remedy for the revelation of truth should consist in the truth's ability to flourish in the marketplace of ideas rather than in the punishment of the revealer. The core principle of democracy is that the people have consented to the government. When the government keeps vital secrets from us — particularly secrets that embarrass it, secrets that cause us to view it differently, secrets of failure — we end up with a government that we do not know or trust. And one that ultimately lacks our consent.

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