Yesterday U.S. District Judge Reggie Walton ruled that five reporters must reveal their sources for stories they wrote about anthrax "person of interest" Steven J. Hatfill. As both a "leaker," and as the object of smear campaigns leaked to the press (and in which the press was complicit), I am very conflicted over this issue. The Reporters Committee for Freedom of the Press, which has been a huge ally to me over the years, said that the Hatfill ruling will have "horrifying" repercussions for reporters. So below is my attempt do distinguish between "leaking" (disclosures to the media designed solely to smear, e.g., Army scientist Steven Hatfill, nuclear scientist Wen Ho Lee, Army Captain James Yee, myself . . .) and "whistleblowing" (disclosures to the media that are in the public interest, e.g., Joe Wilson, Coleen Rowley, Ann Wright, myself . . .)
The terms "leaking" and "whistleblowing" are unfortunately used synonymously to describe the public disclosure of information that is otherwise secret. The two concepts are often confused because they have the same effect of damaging the subject of the leak. This is problematic because there are good leaks and bad. The difference turns on the substance of the information that is disclosed. The Whistleblower Protection Act recognizes disclosure of information that a government employee reasonably believes evidences illegality, gross waste, flagrant mismanagement, abuse of authority or a substantial and specific danger to public health or safety. The disclosure can be made to Congress, the press, or an interest group. The U.S. Court of Appeals for the Federal Circuit has specifically held that disclosures to the press are a valid way of blowing the whistle.
On the other hand, disclosures to the media that are of no public interest value are a different story. Leaking can be purely vengeful -- meant to punish, embarrass, intimidate, harass or silence. But motives are legally irrelevant. The germane factor is not that the White House had the basest of motives in leaking, for example, the identity of covert CIA operative Valerie Plame, but that there was no public interest significance as defined by the Whistleblower Protection Act. Moreover, it was a likely a crime under the Intelligence Identities Protection Act, Privacy Protection Act (Hatfill, me).
Stephen Hayes of The Weekly Standard suggested that "it’s perfectly defensible for [the Bush administration] to have tried to counter Joe Wilson’s claims . . . [I]f you’re in the White House at the time, why would you not say, ‘Gosh, who is this guy? Why is he saying these things that we know aren’t true? And how do we fix this?’"
But that is not what the White House did. It did undertake a searching examination of whether there was an Iraq-uranium connection; in fact, it buried evidence to the contrary. It did not aggressively seek to declassify the CIA summary of what Wilson reported following his trip. It did not examine whether Wilson had misspoken about Niger uranium intelligence being based on forged documents.
As reflected in Bob Novak’s column, the White House instead launched a smear campaign against Wilson by implying that his Niger mission was a boondoggle arranged by his wife. The Whistleblower Protection Act is the only conceivable justification for the leak, but when Rove revealed Plame’s identity, he was not trying to allege that he was disclosing evidence of fraud, waste or abuse. It was not in the public’s interest for him to leak; in fact, quite the opposite. He put at risk national security to undermine a critic. He was trying to harm Joe Wilson and the outing of Valerie Plame was collateral damage. The disclosure was retaliation, not whistleblowing.
"Deep Throat," the original whisleblower revealed as former FBI deputy director W. Mark Felt, disclosed high-level government misconduct to the Washington Post, which led to the resignation of President Richard Nixon. Another famous whistleblower, Daniel Ellsberg, leaked the Pentagon Papers to the New York Times, which helped to end the Vietnam War. While I do not pretend to be as well-known as Deep Throat and Ellsberg, the contents of our disclosures were the same: lawful, worthy and in the public’s interest. I gave internal Justice Department e-mails to Newsweek in the case of "American Taliban" John Walker Lindh when the advice I rendered not to interrogate him without counsel was ignored, withheld from the court, and then "disappeared." This unraveled a case that was rife with government misconduct, including torture.
Ironically, Joe Wilson was the true whistleblower in the Plame story – a fact that has blurred the difference between leaks and whistleblowing because both Wilson and his detractors used the press to accomplish their task. Do not confuse the medium with the message. Wilson went public in the Washington Post on July 6, 2003, about the Bush team "misrepresenting the facts" on Iraqi nuclear intentions. But for Rove, going to the press was a transparent attempt to destroy Joe Wilson, the same way senior officials tried to prosecute and "incapacitate" Ellsberg, and the same way they have tried to destroy me personally and professionally by getting me fired from my private sector job, placing me under criminal investigation, referring me to the state bars in which I am licensed as an attorney, and putting me on the "no-fly" list. Ditto with Steven Hatfill, whose life has been ruined while the anthrax attacker(s) remain at large.
Whistleblowers who commit the truth should not be put in the same category as Rove or Libby. The difference between us and those who unmasked Valerie Plame is that we were blowing the whistle on what we had a more-than-reasonable belief evidenced illegal activity and an abuse of power at the highest levels of the Executive. The Plame leak appears to be, at best, meant to discredit Wilson by implying that he got the CIA mission to Niger only because his wife worked there, and at worst, meant to punish him for undercutting the President’s motive for going to war with Iraq.
Abuse of power should not be confused with speaking truth to power, and the politics of personal destruction should not be confused with the performance of personal conscience.