Navy v. Egan, not Just Branzburg v. Hayes, Needs Fixed

Today, 340 new journalists will join the 10 or so who have been covering the Bradley Manning prosecution closely for the last several years; his trial starts today at Fort Meade.

Expect to see a bunch of essays on secrecy to mark the beginning of the trial.

This one, in which Steven Coll calls for the Supreme Court to revisit the Branzburg v. Hayes decision that established a spirit but not a law protecting press sources, has already generated a lot of attention.

In the long run, to rebalance the national-security state and to otherwise revitalize American democracy, the United States requires a Supreme Court willing to deepen protections for investigative reporters, as the majority in Branzburg would not.

Among some other minor factual inaccuracies (including what the AP UndieBomb 2.0 leak was originally about), it includes this claim.

[Obama’s] longest-serving advisers are disciplined and insular to a fault; press leaks offend their aesthetic of power.

While I agree Obama’s advisors are insular to a fault, and agree they revel in an aesthetic of power, they do not despise all press leaks. Even aside from the typical policy debate leaks of classified information, the White House has long reveled in “leaking” classified information to selected members of the press, to get the information out there on its own terms. The tactic is not new — it is precisely the A1 cut-out approach the Bush Administration used to get us into the Iraq War. But the Obama Administration may have expanded its use (that is actually the reason Republicans in Congress were demanding investigations of the leaks that followed the AP story, the ones that, unlike the AP, exposed our mole).

Which is why Coll proposes an inadequate solution to what I agree is the key problem.

Obama inherited a bloated national-security state. It contains far too many official secrets and far too many secret-keepers—more than a million people now hold top-secret clearances. Under a thirty-year-old executive order issued by the White House, the intelligence agencies must inform the Justice Department whenever they believe that classified information has been disclosed illegally to the press. These referrals operate on a kind of automatic pilot, and the system is unbalanced. Prosecutors in Justice’s national-security division initially decide on whether to make a criminal case or to defer to the First Amendment. The record shows that in recent years the division has been bent on action.

I’m not opposed to establishing clearer laws about when a journalist’s sources may be protected. But that can be used — as Dick Cheney tried to use it — as a screen for his exposure of Valerie Plame. Protecting journalists’ sources will not only protect real whistleblowers, but it will also protect the system of official leaks that both Bush and Obama have used to accrue power and avoid accountability.

So not only is fixing Branzburg v. Hayes not enough to fix our “unbalanced … bloated national security state,” it doesn’t get at the underlying problem

As a threshold measure, journalists should be calling for the limitation or repeal of the Espionage Act, which is the real stick Obama is using to cut down on unsanctioned leaks. It’s bad enough for whistleblowers to risk losing their clearance, and with it, a well-compensated livelihood. But as soon as you start talking extended prison sentences, as soon as you start accusing whistleblowers of being worse than an enemy’s spy because they shared damning information with the public generally, that’s going to silence unsanctioned leaks.

Just as importantly, this entire structure of abuse of power rests on a different SCOTUS decision, Navy v. Egan, which gives the Executive absolute control over security clearances (and therefore the less powerful leverage usually wielded against whistleblowers, the ability to strip their clearance), but which has been interpreted by Bush and Obama to give the Executive unfettered authority to determine what is secret and what is not. This decision — which is precisely what David Addington told Scooter Libby he could rely on to justify outing Plame on Cheney’s order — is also what the Obama Administration cited when it refused to litigate al-Haramain and in so doing granted the Bush Administration impunity for illegal wiretapping. The Executive’s claim to have unlimited authority to decide what is secret and not is also what prevents the Senate Intelligence Committee from declassifying the torture report on its own authority. It is also the basis for the authority to stall releasing video of US helicopters gunning down a Reuters team to Reuters under FOIA, which led to Manning leaking it to WikiLeaks himself.

The Obama and Bush Administrations have claimed that no one — not Congress, not the Courts — has the authority to review their arbitrary use of secrecy to accrue more power. That claim is an expansive reading of Navy v. Egan, but thus far not one anyone has challenged before SCOTUS. And that is what has enabled them (with the limited exception of the Plame outing) to avoid all consequences for their asymmetric use of leaks.

So, yes, it would be useful if SCOTUS decided that journalists and others engaging in legitimate investigation can protect sources, especially when investigating national security. But until the underlying system — the Executive’s claim that it can abuse secrecy to protect itself — is changed, secrecy will remain a cancer rotting our democracy.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

9 replies
  1. Jeff Kaye says:

    The Executive’s claim to have unlimited authority to decide what is secret and not is also what prevents the Senate Intelligence Committee from declassifying the torture report on its own authority.

    I hadn’t realized that before… So does that mean the Bush administration authorized the release of the Senate Armed Services report on detainee abuse, or at least the amount that wasn’t redacted? Because there was a lot that wasn’t redacted and it’s hard for me to believe the Bush administration would have allowed its release.

    Or are you saying Senate Intel Committee can release, but not until CIA does its redactions… and that will take, well that will take… forever.

  2. emptywheel says:

    @Jeff Kaye: Right: The Original Classification Authority gets to decide what needs to be redacted. It is a testament to Levin and to DOD that he was able to declassify as much as he did (though of course the JSOC stuff is mostly all secret).

    But CIA is particularly good at cross referencing declass requests and with it stalling any release.

  3. TarheelDem says:

    I think that you need to go back and fix US v. Reynolds (1953) which formalized the notion of state secrets and probably revisit the classification laws passed at the time of the National Security Act of 1947 to really restore sanity to protecting the few secrets really necessary for national security.

    IMO, in a democracy, the public has a presumptive right to know what their government is doing.

    Accepting the premises of the current laws IMO hinders actual reform.

  4. lefty665 says:

    Thank you EW. Until directly confronted, “…secrecy will remain a cancer rotting our democracy”. Far too many have had their heads way too far down for far too long.

    As recently as the “secret” meetings last week Holder was reportedly claiming that the Rosen problem was the Privacy Act. Gutting that so they could tap phones without alleging journalistic criminality was his preferred cure.

    O’s embrace of the Espionage Act is huge. The Act languished for the better part of a hundred years for good cause. That anyone with sense understood it was unconstitutional, if challenged, was a common opinion in a prior generation of spooks. The radical application of Navy v. Egan seems a similar abuse.

    Holder has promised a review of “outdated” DOJ policies. But despite excesses and abuses in prior administrations, the change is not in the law, policies or procedures. The profound change is in this administration’s choice to use them in a wholesale assault on journalism, privacy and dissent. That assault is the metastasizing “cancer rotting our democracy”. “accusing whistleblowers of being worse than an enemy’s spy” says it all.

    Despite rumors of remorse and eloquent statements of regret, evil is as evil does. Forrest Gump knew it when he saw it, and Pogo had it right with “We have met the enemy and he is us.”

  5. Tom Maguire says:

    “This decision — which is precisely what David Addington told Scooter Libby he could rely on to justify outing Plame on Cheney’s order…”

    I recall Libby leaking about the Double Secret Declassified NIE to Judy Miller on Cheney’s say-so. And I recall Fitzgerald telling us that Libby learned of Ms. Plame’s classified status from a CIA briefer *after* the publication of the Novak article. I even recall Fitzgerald’s rhetoric about a cloud over the Vice Presidency and the umpire’s inability to make the call because Libby threw sand in his eyes.

    But I don’t recall any clear proof that Libby or Cheney were aware of Ms. Plame’s classified status prior to the leaks.

    As an additional point to ponder – back in the Plame days, Armitage semi-outed himself to the FBI about the leak to Novak shortly after the criminal referral was publicized (He overlooked his leak to Woodward, and probably others, IMHO). Libby kind of ‘fessed up to the FBI but muddied the waters by claiming he had heard it from Cheney, forgot it, then learned it anew from journalists (and people criticize his attempts at fiction…).

    By way of contrast, the DoJ claims to have interviewed several hundred people prior to secretly subpoenaing the AP records for the Obama 2012 Tough on Terror leaks. Yet no one has owned up?

  6. emptywheel says:

    @Tom Maguire: As to the AP leak, John Brennan doesn’t count? He has made it clear, under oath, that he was inadvertantly (same line Armitage used) responsible for outing our mole.

    A great, great deal of circumstantial evidence supports the claim that Cheney ordered Libby to out Plame’s CIA tie to Judy. There are even witnesses (ironically enough, John Kiriakou, whose great lawyer Lanny Breuer helped him avoid GJ testimony) who place Libby screaming about why didn’t people tell him Plame was covert on June 10.

    Ah well. In 20 years we’ll be able to FOIA Cheney’s secret Grand Jury transcript and find out whether he, alone among the WH, continued to refuse to clear the reporters he spoke to testify. Course by then both he and Novak will be dead and therefore unable to explain who Novak spoke to at the White House on July 7 that led him to ask Armitage that question.

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