UPDATED

Cross posted from Pruning Shears.

Earlier this week I had a brief and unproductive Twitter exchange with Libby Spencer over leaks, whistleblowers and journalists. It was prompted by this from BooMan:

We need to get our heads around the distinction between a whistleblower, who observes criminal or unethical behavior by government officials, and a criminal who leaks highly sensitive classified intelligence that burns sources and endangers our national security. Sometimes these two things can overlap, as when we learned that the NSA was conducting warrantless wiretaps in violation of current law. Bradley Manning revealed official wrongdoing, too, but he also did so with no discrimination.

Libby supported this point of view, I disagreed, and it quickly became obvious we wouldn’t get anything productive done 140 characters at a time. So here is the post-length treatment. The summarized version of her position (correct me if I’m wrong Libby!) is to side with the government in cases where, as BooMan writes, a leaker provides information without discrimination, or when outlets engage in irresponsible journalism.

I think the distinction between a “whistleblower” and “a criminal who leaks highly sensitive classified intelligence that burns sources and endangers our national security” is specious (though he allows that “these two things can overlap”). My whistleblower may be your criminal who leaks etc. It largely depends on whether you support the leak in question.

BooMan’s post starts out looking at the recently revealed Justice Department (JD) investigation of James Rosen. Coming on the heels of the AP phone records seizure, it immediately became linked to that scandal. (That’s very fortunate timing! I wonder how the WaPo managed to unearth that “newly obtained court affidavit” at such a critical moment.)

There seem to be two big differences between them, though. The first is that Rosen was more narrowly targeted than the AP was, the second is that Rosen appeared to want to force a change in US policy as part of his reporting. So at least some the details on this particular case seem to support the JD’s actions.

The problem is that BooMan is not content to stay with the details of that one particular case. He moves on to some pretty troubling generalizations instead – his condemnation of indiscriminate leaking, for example.

Whistleblowers typically approach journalists in part because they want an organization with experience and resources to comb through the documents and figure out what to publish. Daniel Ellsberg indiscriminately leaked 7,000 pages to The New York Times. Do Libby and BooMan consider him a criminal?

We can debate whether WikiLeaks is a media outlet (I think it is, or at least it was at the time of its Afghan war diary coverage), but Manning’s smuggled documents were published simultaneously – and with the cooperation of – The Guardian, The New York Times and Der Spiegel. Did those outlets engage in irresponsible journalism?

This debate doesn’t happen in a vacuum. Those who have been on the receiving end of the surveillance state’s attention tend to look at a story like Rosen’s in the broader context of the government attacks on the First Amendment. If national security reporting is now fair game for government attack, there’s no reason to think it will remain confined to sketchy characters like Rosen. Scoops like those from Charlie Savage and the New York Times will also presumably receive more scrutiny as well.

The American government’s sordid history of deception with highly classified intelligence goes back a long way. It’s somewhat astonishing to read someone uncritically pass along government claims that something endangers what BooMan calls “our” precious bodily fluids national security given its track record. One of the most visible tools used to keep information from the public has been the state secrets privilege (SSP), which was literally founded on a lie:

Although the state secrets privilege has existed in some form since the early 19th century, its modern use, and the rules governing its invocation, derive from the landmark Supreme Court case United States v. Reynolds, 345 U.S. 1 (1953). In Reynolds, the widows of three civilians who died in the crash of a military plane in Georgia filed a wrongful death action against the government. In response to their request for the accident report, the government insisted that the report could not be disclosed because it contained information about secret military equipment that was being tested aboard the aircraft during the fatal flight. When the accident report was finally declassified in 2004, it contained no details whatsoever about secret equipment. The government’s true motivation in asserting the state secrets privilege was to cover up its own negligence.

Of course, we didn’t find that out until fifty years later. When the government engages in objectionable and secretive behavior we only find out haphazardly. There is no mechanism that allows this stuff to make its way to the public domain. For the instances we are fortunate enough to discover, taking national security claims at face value has not been a good bet. For instance, even the judicial review in Reynolds was crucially dependent not on evidence but on earnest assurances from the executive branch (emph. added):

In the majority opinion, the court, having not seen the documents in question, relied on the Air Force affidavit to conclude that certainly there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission.

The SSP has remained a popular way for presidents – previous and current included – to cloak dubious activities in secrecy. Given that decades-long pattern (and the aggressive post-9/11 buildout of the surveillance state), it requires a pretty ahistoircal outlook to swallow whole the charge that James Rosen is “an aider, abettor and/or co-conspirator.” We should expect more than government-furnished email excerpts, at least.

Those who defend the status quo deserve similar scrutiny. For instance, BooMan’s claim that “[t]he report relied on sources in the North Korean government” is sloppy. The story cites “sources inside North Korea,” not inside its government. I haven’t seen any reporting that the source was an actual government official, but those who are defending the JD’s actions (BooMan and see also the Mediaite story) have made that claim. Maybe that is a trivial distinction, but maybe it is something the JD is willing to have people infer.

The problem with all this cloak and dagger stuff is that ordinary citizens cannot reliably inform themselves on the issue. The quick way to choose whom to believe is to pick the side you like better. But after that first snap decision, it helps to look at the various parties’ credibility. This may be where Libby and I part company, because I have become so distrustful of government snooping and deception that I no longer believe its national security claims without some sort of independent corroboration. She still seems willing to. Maybe that makes me cynical or her gullible; who knows.

What I do know is that we are now in the twelfth year of a war that we are told encompasses the entire globe and that by definition will never end. And war corrupts democracy: It prevents citizens from becoming educated on one of the most important issues a nation can engage in. It turns political opponents into traitors and adversarial reporting into treason. Those who push back on a wartime president are endangering (our) national security. Those who question the wisdom of our policies are giving aid and comfort to the enemy. War does not, to put it mildly, promote a culture of free and open inquiry in the country that wages it. In an environment like that, I’ll err on the side of skepticism.

UPDATE: Libby responds here.