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Bush's NSA Surveillance Program: What Happens Now?

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The recent disclosure of President Bush's secret decision to authorize the National Security Agency to spy on American citizens poses at least four central questions: (1) Is the program lawful? (2) Can the government officials who disclosed the program's existence to reporters at the New York Times be criminally punished for this act? (3) Can the reporters be compelled to disclose the identities of their sources to a federal grand jury? (4) What can we expect from the Senate Judiciary Committee hearings, private lawsuits, and Vice-President Gore's call for the appointment of a special counsel?

Much has already been written on the first of these questions. My own view is that the President's authorization of this program was unlawful and probably unconstitutional. The administration and its defenders, of course, argue the opposite. I want to focus here not on that question, but on the three others. Let's begin with the assumption that the NSA program is lawful. The Department of Justice has already initiated an investigation of the leak. In the course of this investigation, the DOJ will very likely subpoena the reporters and demand that they reveal their sources. As we have seen in the Valerie Plame/Judith Miller situation, because there is (unfortunately) no federal journalist-source privilege, and because the First Amendment provides only modest protection to the confidentiality of journalist-source relationships, the reporters will be ordered to disclose the information. If they refuse to do so, they will be held in contempt of court and locked away until they cooperate.

Once the DOJ identifies the leakers, it will prosecute them for unlawfully disclosing classified information. On the assumption that the NSA program is lawful, the government will prevail and the leakers will be sentenced to serious prison terms. The government's argument will be straightforward: The United States is entitled to keep secret practices, policies and information related to the national security. Government employees have no authority or constitutional right to override the government's judgment by deciding on their own to disclose such secrets to the public. The government will analogize the NSA situation to one in which the government breaks the enemy's secret code and a government employee then leaks this information to the public and, hence, the enemy. It is, in the familiar phrase, a "slam-dunk." (Because of the First Amendment, by the way, the New York Times almost certainly cannot be punished for publishing the information, even if the leak was unlawful.)

The alternative assumption is that the President's authorization of the NSA spy program was in whole or in part unlawful. In this, more likely, situation, the terminology changes: The sources are no longer "leakers" but "whistleblowers." In this scenario, the whistleblowers are on much stronger ground. Except, perhaps, in the most extraordinary of circumstances, the government cannot constitutionally punish its employees for publicly disclosing the government's own wrongdoing. The government is, after all, accountable to the public. If a court finds that the President's authorization of the NSA program was unconstitutional or otherwise unlawful, it will dismiss the charges against the whistleblowers. Moreover, the reporters will not have to disclose the identities of their sources. This is so, not because of any journalist-source privilege, but because there is no crime to investigate. (Whether the journalists can persuade the judge presiding over the grand jury to decide that question at that stage of the investigation will be an intriguing challenge for their lawyers.)

There is another wrinkle worth noting. Suppose the sources honestly and reasonably believed that the NSA program was unlawful, but the court finds otherwise. Can the leaker/whistleblowers be punished for the disclosure? The government will argue that in dealing with classified information government employees must err on the side of protecting the national security. "When in doubt, do not leak." The government will therefore assert that these employees must be punished, regardless of their good motives, in order to deter others in the future from similarly endangering the national security. The leaker/whistleblowers will respond that because they honestly and reasonably believed that the program was unlawful it was their responsibility to bring the matter to the public's attention. They will argue that, in a self-governing society, the government cannot punish employees for calling to public view secret practices that may reasonably be deemed unlawful. As Justice Brandies once observed, "sunlight is the best disinfectant."

The government is likely to prevail on this issue, particularly if it can demonstrate that the NSA program is important to the national security, the disclosure seriously undermined the program's effectiveness, there were reasonable procedures in place through which the government employees could have questioned the legality of the program without going public, and the sources failed to use those procedures. From a constitutional standpoint, this is largely unexplored terrain.

What will come of the Senate Judiciary Committee (and other congressional committee) hearings? In many respects, the situation is similar to the early 1970s, when Congress learned that the Nixon administration had improperly and unlawfully enlisted the FBI, CIA, Army Intelligence, IRS, and NSA to spy on American citizens. Those disclosures led to important legislation, including, ironically, the Foreign Intelligence Surveillance Act of 1978, which is at the heart of the current controversy.

In all likelihood, the Bush administration will resist disclosing the details of its policies and practices even to Congress, which may itself precipitate a constitutional crisis. Ultimately, however, we can expect the hearings to result in new legislation. Some of this legislation will legalize some of the surveillance techniques used by the NSA at the President's direction. As the administration has argued, changes in technology over the past quarter-century have made some of the restrictions of FISA obsolete. (But the proper and constitutional way for the President to address this issue was not for him to implement these techniques surreptitiously and without legal authority, but to have urged Congress to amend FISA in the first place.) Some of the new legislation, on the other hand, will expressly declare unlawful some of the practices the President has authorized, particularly the complete evisceration and circumvention of the warrant requirement.

Finally, if I am right that the President's authorization of the NSA surveillance of American citizens was unlawful and/or unconstitutional, will there be criminal and/or impeachment proceedings and what will come of the lawsuits filed by the American Civil Liberties Union and other organizations? In all probability, the private lawsuits challenging the legality of the NSA program will be dismissed on the catch-22 ground that because the program is secret the plaintiffs cannot prove that they were targets of the unlawful surveillance and therefore have no standing to sue. On this rather wooden and narrowly legalistic basis, it may be impossible for anyone to challenge the legality of the program in court.

Al Gore's call for Attorney General Gonzalez to appoint a special counsel to investigate Mr. Bush's authorization of the spy program will certainly fall on deaf ears. In the absence of a massive public outcry, this is truly a case of the fox guarding the hen house. Moreover, unless it could be proved that the government officials who approved these practices (including the President) knew that they were unlawful and intended to violate the law, they would almost certainly not be convicted or impeached. But, if that is so, then what about the leaker/whistleblowers? If they honestly and reasonably believed they were acting lawfully and responsibly in disclosing this information, shouldn't they be accorded the same protection against prosecution as the President and his agents?