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Protect, Don’t Prosecute, Patriotic Leakers—A Commentary by Bruce Ackerman '67

The following commentary was published in The New York Times on June 12, 2012.

Protect, Don’t Prosecute, Patriotic Leakers
By Bruce Ackerman '67

BY starting a criminal investigation of journalistic exposures of White House secrets, Attorney General Eric H. Holder Jr. is not merely threatening traditional press freedoms. He is trying to make it a crime to alert the public to secret presidential violations of the Constitution — greatly increasing the future risk of illegal executive action.

The government’s system of classified information is entirely the product of presidential orders. Congress has never passed a general statute making unauthorized leaks a crime. Instead, the Justice Department is relying on relatively narrow provisions of the Espionage Act of 1917, which punishes leakers only if they “knowingly and willfully” pass on information that hurts the country or helps a foreign power “to the detriment of the United States.”

The Espionage Act was at the center of the Pentagon Papers case, decided in 1971. While the Supreme Court famously struck down the government’s effort to enjoin The New York Times and The Washington Post from publishing military secrets, the justices upheld the constitutionality of post-publication prosecutions. Daniel Ellsberg, who leaked the papers, and an associate weretried under the statute, but the judge declared a mistrial, so the case never got to the jury.

But the Supreme Court never squarely confronted the frontier question now raised by Mr. Holder’s investigations: Is a willful leak “prejudicial to the safety or interest of the United States” if the leaker is revealing to Americans that the president is violating the Constitution?

To ask the question is to answer it: The preservation of the Constitution serves as the very foundation of the “safety or interest” of the nation. Telling Americans about secret presidential actions that threaten our fundamental law should never be considered violations of the Espionage Act.Such leaks don’t endanger our national security. They promote it, by preserving our constitutional integrity.

Consider the recent stories describing the secret meetings at which President Obama has personally selected targets for assassination by drones. These reports raise big constitutional issues, especially in cases where American citizens, like Anwar al-Awlaki and his son, are targeted and killed. Did Mr. Obama and his national security staff violate due process in serving as the Awlakis’ prosecutor, judge and jury?

I believe that the president has violated the Constitution in this case. The Justice Department disagrees, and has asked its Office of Legal Counsel to prepare an elaborate memorandum asserting that presidentially ordered assassinations comply with due process despite the absence of judicial review. Yet the department has refused, on national security grounds, to release that memo, leaving the public in the dark about the legal reasoning that led to this remarkable conclusion. We know of the memo’s existence only as a result of another leak.

But thanks to sustained investigative journalism, Americans have now learned how the president is exercising his asserted authority to kill his fellow citizens, alerting the country to the dangerous constitutional precedent he is creating. These news reports should provoke the Justice Department toreconsider its wrongheaded decision to conceal its memo from outside scrutiny. Instead, Mr. Holder is threatening to imprison leakers for the crime of alerting their fellow citizens to a life-or-death constitutional problem.

A more subtle issue is generated by the revelation that Mr. Obama authorized cyberattacks on Iran’s nuclear program. This raises the question of whether these cyberattacks amount to “hostilities,” which would require Congressional approval for the use of military force within the 90-day deadline established by the War Powers Resolution of 1973. Lurking in the background is the further question of whether and when future cyberattacks should count as acts of war, requiring the prior consent of Congress under the Constitution.

Generally speaking, we have construed war-power provisions to take account of evolving technological realities. Article One, for example, grants Congress only the power to “support Armies” and “maintain a Navy.” Since it was written in 1787, it didn’t explicitly mention the Air Force. Yet even the most stouthearted originalist supports a broad construction of the text to cover the Air Force now that we have conquered the skies. By the same token, we should be debating the kinds of cyberattacks that should require Congressional authorization under our fundamental law.

This is a complex question, but one thing is clear: it should be resolved through serious and sustained public debate, not through secret meetings involving handpicked presidential lawyers and advisers. Once again, investigative journalists deserve praise, not threats, for provoking this larger conversation.

We are in the midst of a tight presidential contest, and it’s easy to understand why Democrats and Republicans are competing for the tough-on-terrorism prize. But that’s not a sufficient excuse for staging an assault on the Constitution.

Bruce Ackerman, a professor of law and political science at Yale, is the author, most recently, of “The Decline and Fall of the American Republic.”