Once in a while, a good leak

The pub­lic has a right to know the de­tails of Rus­sia’s hack at­tack

The Washington Times Daily - - OPINION - By An­drew P. Napoli­tano An­drew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jersey, is a con­trib­u­tor to The Wash­ing­ton Times. He is the au­thor of seven books on the U.S. Con­sti­tu­tion.

Last week­end, the FBI ar­rested an em­ployee of a cor­po­ra­tion in Augusta, Ga., that had a con­tract with the Na­tional Se­cu­rity Agency (NSA) and charged her with es­pi­onage. Es­pi­onage oc­curs when some­one who has been en­trusted to safe­guard state se­crets fails to do so. In this case, the gov­ern­ment al­leges that the per­son to whom state se­crets had been en­trusted is 25-year-old Re­al­ity Leigh Win­ner, who had a top-se­cret na­tional se­cu­rity clear­ance.

The gov­ern­ment claims that Ms. Win­ner down­loaded and printed a top-se­cret NSA re­port, re­moved the printed ver­sion of the re­port from her em­ployer’s premises, and then mailed it to The In­ter­cept, a highly re­garded in­ter­na­tional me­dia out­let that exposes gov­ern­ment wrong­do­ing.

The gov­ern­ment says it learned of this when folks from The In­ter­cept called the NSA and told agents what they had re­ceived and what they planned to pub­lish. Af­ter hear­ing agents de­scribe the po­ten­tial harm to their work if the full re­port were to be re­leased, The In­ter­cept agreed to redact cer­tain por­tions, though it pub­lished the bulk of the re­port.

The re­port is star­tling, as it re­veals that the NSA dis­cov­ered that Rus­sian hack­ers in late Oc­to­ber and early Novem­ber 2016 planted cook­ies (at­trac­tive, uniquely tai­lored links) into the web­sites of 122 Amer­i­can city and county clerks re­spon­si­ble for count­ing bal­lots in the pres­i­den­tial elec­tion. This means that if any em­ployee of those clerks’ of­fices clicked onto any cookie, the hack­ers had ac­cess to — and thus the abil­ity to in­ter­fere with — the tab­u­la­tion of votes. This NSA re­port is at sharp odds with the de­nials of Rus­sian in­volve­ment in the 2016 pres­i­den­tial elec­tion made last year by Pres­i­dent Obama and made last week by Rus­sian Pres­i­dent Vladimir Putin, and it is pro­foundly more de­tailed and alarm­ing than any­thing the fed­eral gov­ern­ment has thus far re­vealed.

Doesn’t the Amer­i­can pub­lic have the right to know what the Rus­sians did in the elec­tion? Is it nec­es­sar­ily crim­i­nal to make such things pub­lic? Isn’t the NSA sup­posed to pro­tect us from for­eign hack­ers who are at­tempt­ing to in­ter­fere with the core Amer­i­can elec­toral process — the elec­tion of the pres­i­dent — and not keep us in the dark if it fails to do so?

Here is the back story.

I have ar­gued since 2013, when we first learned from the Ed­ward Snow­den rev­e­la­tions that the NSA has gath­ered too much data about too many in­no­cent peo­ple since 2005, that it does so in vi­o­la­tion of the Con­sti­tu­tion and fed­eral law and that it suf­fers from in­for­ma­tion over­load — mean­ing it has more raw data than it has re­sources to ex­am­ine in a timely and ef­fec­tive man­ner.

The re­sult of all this is lib­erty lost — as in­no­cents have their pri­vacy in­vaded and, as we know, some­times even re­vealed to the pub­lic for po­lit­i­cal pur­poses — and our safety com­pro­mised, since the

NSA re­peat­edly dis­cov­ers that it had all rel­e­vant com­mu­ni­ca­tions of killers be­fore the killings but does not con­nect the dots un­til too late, as in Bos­ton, San Bernardino and Or­lando. The same can be said for our Bri­tish part­ners in Manch­ester and Lon­don dur­ing the past two weeks.

The stated pur­pose of all this sus­pi­cion­less bulk spy­ing on all of us all the time is to keep us safe. Yet we know that the NSA has failed at that, and we know from a re­cent ju­di­cial con­dem­na­tion of the NSA that it has failed to pro­tect our lib­er­ties. Now we know that it has failed to pro­tect our pres­i­den­tial elec­tion.

Is it a crime to re­veal what the FBI says Ms. Win­ner re­vealed? In a word, yes. Yet I ar­gue for un­der­stand­ing the full pic­ture here. If she did as the FBI al­leges, she com­mit­ted a vi­o­la­tion of fed­eral law. How­ever, it ap­pears she did not do so for petty, po­lit­i­cal, fi­nan­cial or ve­nal rea­sons; rather, she may have done so for the Amer­i­can peo­ple to know that the spies who have failed us would keep us ig­no­rant and vul­ner­a­ble.

Can The In­ter­cept be pros­e­cuted for re­veal­ing top-se­cret ma­te­rial to the pub­lic? In a word, no. The Supreme Court made clear in the Pen­tagon Pa­pers case in 1971 that a me­dia en­tity may freely pub­lish mat­ters that are ma­te­rial to the pub­lic in­ter­est, not­with­stand­ing the source of the mat­ters or the be­hav­ior of the source that de­liv­ered the mat­ters to it. This is grounded in the essence of per­sonal lib­erty in a free so­ci­ety. In mat­ters of ma­te­rial in­ter­est to the pub­lic, the pub­lic’s right to know what the gov­ern­ment is do­ing or has failed to do con­sti­tu­tion­ally trumps the gov­ern­ment’s right to se­crecy.

Where does all this leave us? Re­al­ity Win­ner may very well be a pa­triot who risked her ca­reer and free­dom to warn the Amer­i­can pub­lic of what the gov­ern­ment was afraid to ac­knowl­edge — that mass spy­ing keeps us nei­ther safe nor free. No doubt the gov­ern­ment doesn’t see it that way. This case has em­bar­rassed the gov­ern­ment, and she will most likely be pros­e­cuted. I hope the judge in her case lets her lawyers ar­gue that be­cause we live in per­ilous times, the peo­ple are en­ti­tled to know what the gov­ern­ment does and fails to do in our names to ad­dress the peril so we can change the gov­ern­ment when it fails.

The rem­edy for the rev­e­la­tion of truth should con­sist in the truth’s abil­ity to flour­ish in the mar­ket­place of ideas rather than in the pun­ish­ment of the re­vealer. The core prin­ci­ple of democ­racy is that the peo­ple have con­sented to the gov­ern­ment. When the gov­ern­ment keeps vi­tal se­crets from us — par­tic­u­larly se­crets that em­bar­rass it, se­crets that cause us to view it dif­fer­ently, se­crets of fail­ure — we end up with a gov­ern­ment that we do not know or trust. And one that ul­ti­mately lacks our con­sent.

Is it a crime to re­veal what the FBI says Ms. Win­ner re­vealed? In a word, yes.


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