Quoth D-squared:
I hereby question the “left” credentials, and indeed the commitment to democracy, of anyone who takes the government side against Katharine Gun. Saddam’s gone and nothing can bring him back. Whatever happens in Iraq, happens. The war was fought and cannot be unfought. All that turns on this case, is whether someone who is aware that the government is trying to do something in private which they would not dare to do in public, has the right to blow the whistle. If you think that Ms Gun deserves to go to jail, then all I can say, mes amis is examine your conscience.
(The link is to Bob Herbert’s column this morning.) The Crooked Timber commentators generally seem to find this an odd thing to think.
Add me to the slightly baffled chorus here. (I had the same baffled reaction when reading the NYT column this morning.) I’ve heard of lots of cases of Official Secrecy Act-abuse, lots of instances of people being prosecuted under OSA who I think shouldn’t be under a defensible free speech/ free press theory. As I understand it OSA would also have allowed prior restraint against the newspapers that published the memo Gun leaked, and I think that’s wrong. But to punish the security-cleared government employee who revealed information that she had access to– well, if that’s a violation of freedom of speech, then there’s no legitimate way to have security services at all. I confess that I used to think that there couldn’t be a legitimate security/ intelligence service, in my harder-core libertarian days. I can still understand the argument to that effect, even though I no longer agree with it. (And even then, I wouldn’t have identified the free-speech rights of employees as the central moral problem with such agencies– the employees have contracted away their right to speak about what they learn on the job as a condition of employment.) But is endorsing the conclusion that liberal democracies cannot have intelligence/ security agencies really a prerequisite for a commitment to democracy? That’s a pretty radical position for a minimum entry requirement.
The comparison to Daniel Ellsberg is interesting but more complicated than Herbert lets on. Ellsberg was never found to have a First Amendment right ot have leaked the Pentagon Papers, though the NYT was found to have a First Amendment right to publish them. Ellsberg was subjected to all sorts of Nixonian illegal and secret harassment. Gun is being prosecuted, above-board and according to law. The criminal case against Ellsberg was thrown out due to government misconduct; Herbert and D-Squared seem to be claiming that the act of prosecuting Gun is itself misconduct.
Whistle-blower cases are complicated to get good general principles for. Whistle-blower cases that involve people with access to classified information are even more complicated, unless one wants to do away with the business o fhaving classified infromation altogether. And, yes, part of having a procedural rule like “People may not reveal classified information” is that people cease to be able to lawfully decide for themselves when the information really ought to be publicly known. (Here cf Raz on authority and law; for that matter, cf Hobbes.) It’s true that the government could not have publicly avowed its intention to do what Gun exposed their intention to do. But neither could she have avowed an intention to reveal classified information when her conscience demanded it and still received her clearance.
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