Are the wiretap leakers breaking the law?

Answers to your questions about the news.
Jan. 4 2006 6:31 PM

When Can a Government Employee Blow the Whistle?

Are the wiretap leakers breaking the law?

Download the MP3 audio version of this story hereThe Explainer now has its own free daily podcast; click here to learn more.

The Department of Justice revealed on Friday that it is investigating the leak of classified information about the National Security Agency's domestic surveillance program. Three weeks ago, a New York Times article by James Risen and Eric Lichtblau described a secret executive order to allow some domestic wiretaps without a warrant. According to the article, "[n]early a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters … because of their concerns about the operation's legality and oversight." Are you allowed to leak government secrets to expose an illegal act?

No. According to federal whistle-blower protection law, members of the intelligence community are not protected if they divulge classified information to anyone without the proper security clearance, even if they think they have evidence of a crime. They can, however, pass along what they know to higher-ups and internal auditors within the bureaucracy without fear of retaliation. Provided they go through the proper channels, they can also spill the beans to a member of Congress who has the appropriate clearance. (The Intelligence Community Whistle-Blower Protection Act of 1998 covers this scenario.)

Daniel Engber Daniel Engber

Daniel Engber is a columnist for Slate

Advertisement

If identified, the Times' leakers might argue that the information they divulged was improperly classified. Executive Order 13292, which covers secret national-security information, says that nothing can be classified so as to "conceal violations of law, inefficiency, or administrative error." With this in mind, they might claim that the domestic wiretap information wasn't actually secret, since it had been classified incorrectly.

Executive Order 13292 also says that if you're authorized to have classified information and that you, "in good faith, believe its classification status is improper," you are "encouraged and expected to challenge the classification status." That means that you should pass along your concern to higher-ups or an appeals panel, without fear of retribution. Federal employees also have a general obligation to pass along evidence of official misconduct through official channels. (See, for example, this presidential memo on "Official Conduct.") This obligation wouldn't apply to leaks to the press unless the information had been improperly classified.

National security whistle-blowers are rarely brought up on criminal charges, since it's very hard for the government to prove that a leaker intended to break the law. (Only one * official has ever been convicted of leaking classified information to the press.) The whistle-blowers are more likely to face administrative sanctions—they might lose their security clearance, for example, or get fired.

Got a question about today's news? Ask the Explainer.

Explainer thanks Tom Devine of the Government Accountability Project and Mark Zaid of Krieger & Zaid.

Correction, Jan. 5, 2006: This piece originally and incorrectly stated that two men have been convicted of leaking classified material to the press. Jonathan Randel, who sold unclassified DEA information to a British publication, was convicted under a law that prohibits stealing or improperly selling government property. ( Return to corrected sentence.)

TODAY IN SLATE

Politics

The Irritating Confidante

John Dickerson on Ben Bradlee’s fascinating relationship with John F. Kennedy.

My Father Invented Social Networking at a Girls’ Reform School in the 1930s

Renée Zellweger’s New Face Is Too Real

Sleater-Kinney Was Once America’s Best Rock Band

Can it be again?

The All The President’s Men Scene That Captured Ben Bradlee

Medical Examiner

Is It Better to Be a Hero Like Batman?

Or an altruist like Bruce Wayne?

Technology

Driving in Circles

The autonomous Google car may never actually happen.

The World’s Human Rights Violators Are Signatories to the World’s Human Rights Treaties

How Punctual Are Germans?

  News & Politics
Politics
Oct. 22 2014 12:44 AM We Need More Ben Bradlees His relationship with John F. Kennedy shows what’s missing from today’s Washington journalism.
  Business
Moneybox
Oct. 21 2014 5:57 PM Soda and Fries Have Lost Their Charm for Both Consumers and Investors
  Life
The Vault
Oct. 21 2014 2:23 PM A Data-Packed Map of American Immigration in 1903
  Double X
The XX Factor
Oct. 21 2014 3:03 PM Renée Zellweger’s New Face Is Too Real
  Slate Plus
Working
Oct. 22 2014 6:00 AM Why It’s OK to Ask People What They Do David Plotz talks to two junior staffers about the lessons of Working.
  Arts
Brow Beat
Oct. 21 2014 9:42 PM The All The President’s Men Scene That Perfectly Captured Ben Bradlee’s Genius
  Technology
Technology
Oct. 22 2014 8:13 AM Good Teaching Is Not About Playing It Safe Classroom technology can make learning more dangerous, and that’s a good thing.
  Health & Science
Bad Astronomy
Oct. 22 2014 7:30 AM An Illusion That Makes Me Happy and Sad
  Sports
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.