When the Public Has a Right to Classified Information

By Conor Friedersdorf, The Atlantic

29 October 14

The anonymous whistleblower who leaked details about the terror watchlist served the national interest.

onths ago, The Intercept reported that "nearly half of the people on the U.S. government’s database of terrorist suspects are not connected to any known terrorist group." Citing classified documents, Jeremy Scahill and Ryan Devereaux went on to report that "Obama has boosted the number of people on the no fly list more than ten-fold, to an all-time high of 47,000—surpassing the number of people barred from flying under George W. Bush." Several experts were quoted questioning the effectiveness of a watch list so expansive, echoing concerns expressed by the Associated Press the previous month as well as the ACLU.

The Intercept article offered a long overdue look at one of the most troubling parts of the War on Terrorism. Being labeled a suspected terrorist can roil or destroy a person's life—yet Team Obama kept adding people to the list using opaque standards that were never subject to democratic debate. Americans were denied due process. Innocent people were also put on a no-fly list with no clear way to get off.

As the ACLU put it, "The uncontroversial contention that Osama bin Laden and a handful of other known terrorists should not be allowed on an aircraft is being used to create a monster that goes far beyond what ordinary Americans think of when they think about a 'terrorist watch list.' If the government is going to rely on these kinds of lists, they need checks and balances to ensure that innocent people are protected." The status quo made the War on Terror resemble a Franz Kafka novel.

On Tuesday, Michael Isikoff reported that the FBI has identified a federal contractor suspected of leaking the classified documents The Intercept cited in its story:

The FBI recently executed a search of the suspect's home, and federal prosecutors in Northern Virginia have opened up a criminal investigation into the matter, the sources said. But the case has also generated concerns among some within the U.S. intelligence community that top Justice Department officials—stung by criticism that they have been overzealous in pursuing leak cases—may now be more reluctant to bring criminal charges involving unauthorized disclosures to the news media, the sources said. One source, who asked not to be identified because of the sensitivity of the matter, said there was concern "there is no longer an appetite at Justice for these cases."

That quote is hard to parse. Was anonymity granted to government sources so that they could offer unauthorized leaks complaining about disinterest in prosecuting unauthorized leaks? Or was this an authorized leak from an intelligence community trying to pressure the Justice Department using the cover of anonymity? Either way, the concerns of these intelligence sources should be ignored. If the DOJ is reluctant to prosecute here, it's absolutely right to be.

The information revealed by The Intercept should never have been treated as a state secret. Federal authorities are trying to figure out who leaked a classified document, but they ought to be identifying whoever was responsible for wrongly classifying it in the first place. Its contents do not threaten national security. Suppressing them was an affront to democracy that undermined accountability in government.

The bad actors are the ones who kept it secret.

The opaque watch lists of the Bush and Obama administrations are flagrant examples of the over-classification long thought to be endemic in Washington, D.C. Exposing them as such served the public interest. As with Watergate, the Pentagon Papers, and FBI persecution of anti-Vietnam protestors, whistleblowers and journalists have once again proved better than government at judging how best to navigate the tension between state secrets and democracy.

Most self-described advocates of law and order who insists on the need to prosecute Edward Snowden and this second leaker ignore a key feature of their civil disobedience: These whistleblowers leaked in part to expose more serious lawbreaking.

It is perverse to target them while ignoring the lawbreakers they exposed.

The only reasonable argument for prosecuting the whistleblower who leaked this watch-list document is that, regardless of the salutary consequences, a duly enacted law was broken. Some people maintain that the rule of law is threatened if any lawbreaking goes unpunished, regardless of context. But that is not an argument that the intelligence community or its apologists can credibly make until they also begin advocating for the punishment of all perjurers, torturers, and civil-rights violators in their midst, as well as leakers who talk to reporters while advancing an establishment line. Does anyone take that internally consistent position? Anyone who surveys lawbreaking in the national-security bureaucracy and insists on legal consequences only for its whistleblowers makes a mockery of the rule of law.