THE BLOG
01/24/2014 06:07 pm ET | Updated Mar 26, 2014

Leak-stopping -- or Leaker-saving?

This has been -- officially at least -- one of those quiet weeks for political reporters. The U.S. Congress comes back to work (silly word, I know) on Monday, January 27.

But members of both House and Senate are in this quiet time having to think hard -- though not necessarily talk to the press -- about the uncomfortably hot potato recently tossed into their laps by President Barack Obama.

Since our nation, in John Adams' words, is supposedly one "of laws, not of men," Obama late last week pointedly chose (for its apt media visuals) the U.S. Justice Department as his venue for announcing some intended reforms. These, you'll recall, concern the intelligence community's broad surveillance of the American public (oh, and its intimate snooping on foreign leaders, too).

'Announcing reforms' is overstating it, of course -- in every sense. As often, Obama was giving his impression of a constitutional law professor (rather convincingly, since that's just what he is) as he thinks out loud for the benefit of his class. Maybe they are not actually reforms in the sense of improvements... and "airing a possibility" might be a better phrase than 'announcing'.

One definite outcome, though, is that sometime soon members of Congress will have to make a decision -- since it evidently won't be the Chief Executive who acts as "the Decider," not this one -- on whether and how the so-called metadata that record how millions of citizen's communicate with each other will be stored from now on. Obama suggested the U.S. government should get out of the business of keeping Americans' phone records -- though he's insisting it's still necessary to do the dragnet collection of those records, for the sake of counter-terrorism effectiveness.

While Senators and Representatives ponder that conundrum, they'll also be sensing the need to decide soon how they'll vote on a second question -- how to establish some kind of public representation within the secret FISA court that rules on spy chiefs' applications to delve as deeply as they want into those gathered records. Ideally this person, or persons -- a "panel of advocates", in Obama's phrase -- would operate as a counterweight to the arguments of spies themselves.

It could be helpful to devote some contemplative time to an issue that lies behind these apparent fixes coming up for legislative consideration. Why, anyway, is the whole matter now before us and our elected representatives? How come we've even had a president's own five-person commission of inquiry that recommended some 46 fixes, some of which he endorsed last week, some of which he didn't?

"The answer is definitely Edward Snowden," says David Cole in response to such questions. He's Professor of Law at Georgetown University Law Center, a powerful legal authority on legal parameters that (ought to) control intelligence activity, and he's taken to his favorite soap-box, the New York Review of Books.

Cole believes that former intelligence contractor Snowden's leaking of National Security Agency documents -- first to blogger/journalist Glenn Greenwald (then with The Guardian newspaper) and subsequently to Barton Gellman at the Washington Post and independent documentary-maker Laura Poitras -- "performed a considerable public service," whatever his motives or methods. "He showed us that the government's ability to track us went far beyond what most people thought possible ... I think it's probably the most significant civil liberties question of the next decade. And Edward Snowden put it on the map."

Cole's closely-argued NYRB article also embraces the cases of Chelsea Manning and of Julian Assange, and is headlined plainspokenly "The Three Leakers and What to Do About Them." These three individuals, he says, are responsible for "the most significant" leaks "since Daniel Ellsberg made the Pentagon Papers available to The New York Times and the Washington Post." (An assessment which the now 82-year old Ellsberg enthusiastically endorses, by the way, as he stumps across public meetings and anywhere in the media landscape he can get to in support of his modern-day successors).

What to do with the leakers, indeed? Manning is serving time (35 years) in a military prison, Assange is living in the close confines of the Ecuadorean embassy in London, and Snowden has found asylum, though not long-term by all accounts, in Moscow.

Journalists know that we are hugely dependent on leakers, and will pretty well always want them to enjoy immunity from penalties for their often undeniably illegal actions. Lawyers of Cole's outlook feel that leakers need protection for society's greater protection.

The Snowden case, the main focus of Cole's attention, leads him to conclude -- since "there is a strong case that many of Snowden's leaks to date have been justified" -- that "it would in everyone's interest to reach a resolution that falls well short of the harsh punishments that most intelligence officers have thus far demanded."

I would add just this. The Obama presidency has been, distressingly for many of its supporters, even more assiduous than many previous administrations in pursuing suspected leakers among its operatives. And let's not forget that even as some degree of change might be imminent to establish better constraints upon potential excesses by intelligence agencies, the Obama Justice Department is still prepared to extend its leak-hunts to the prosecution of journalists. That's despite the longstanding convention that among the various collaborating participants who need to collaborate in getting a government secret published, it's normally the journalist who is regarded as non-culpable.

As well as for politicians, this is a time for marking time, legally, for Pulitzer prizewinner James Risen of the New York Times. The government has tried to compel him, under threat of prison, to give evidence in the espionage (yes, espionage) trial of former CIA Officer Jeffrey Sterling- - who's accused of leaking information to Risen about an allegedly botched operation.

Risen has appealed to the US Supreme Court against his summons, and the trial is now on hold until the high court decides on whether to hear his petition. He'll hear something -- let's hope it's positive -- in February.

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Read more of David Tereshchuk's media industry insights at his regular column, The Media Beat, with accompanying video and audio. Listen also to The Media Beat podcasts on demand from Connecticut's NPR station WHDD, and at iTunes.