Free Speech and National Security Bootstraps

It is troubling that courts treat administrative designations—specifically, both FTO determinations and information classification—as bootstraps by which to yank speech restrictions from the clutches of probing judicial scrutiny. This Article builds on existing scholarly critiques to identify and examine the common thread of national security bootstrapping that runs through both sets of cases. The hope is that in so doing, some greater light may be shed both on the cases themselves and, more broadly, on the costs and benefits of judicial deference to executive national security claims where civil rights and civil liberties are at stake

The Special Value of Public Employee Speech

In this article, I use the 2014 decision of Lane v. Franks as a jumping off point to revisit the rule of Garcetti v. Ceballos, that speech conducted pursuant to one’s public employment is unprotected by the First Amendment. I explain that Garcetti is emblematic of the Supreme Court’s failure to dig beneath the surface of its own long-standing acknowledgment that public employee speech holds special value. If one tunnels into that subterrane, one finds that the value of public employee speech is a function not just of content, but of form. Public employees play a special role under the First Amendment by virtue of their privileged access both to information and to communication channels for conveying it. The special communication channels to which employees have access – including internal channels – can be uniquely effective in supporting accountability and the rule of law, and thus in fulfilling core free speech values. I consider how a fuller conception of special value – as well as a more sharply defined government interest in limiting employee speech – ought to impact the doctrine of public employee speech. I propose that, where work product speech can confidently be identified, courts should consider whether employees were disciplined based on a genuine, not pretextual assessment of work product quality. Crucially, in cases where employees were hired to render independent professional judgments, disappointment with those judgments, not because they reflect low quality, but because they are politically or personally inconvenient for employers, should not be deemed quality-based assessments. Only disciplinary actions based on quality-based assessments should be exempt from further scrutiny. As a second-best, but perhaps more realistic near-term alternative, I also consider means to limit Garcetti’s reach

Congressional Oversight of National Security Activities: Improving Information Funnels

This article, which was prepared for a spring 2007 conference at Cardozo Law School on The Domestic Commander in Chief, considers constitutional and policy questions regarding congressional oversight of national security activities. The article focuses on what I call an information funnel approach. Such an approach involves funneling information only to discrete groups of people. For example, statutory provisions require that intelligence programs be shared with the congressional intelligence committees. Other statutory provisions permit certain narrowly defined covert actions to be reported only to the congressional leadership. The intended benefits of funneling are intuitive. Funneling plainly is directed toward balancing the respective advantages of secrecy and openness. It demands some inter-branch knowledge sharing without requiring full public or even full congressional access. This article agrees that funneling is a theoretically and practically important means of reconciling secrecy and openness needs but contends that funneling has not, in fact, been taken seriously enough. The purpose and utility of funneling have been under-explored, and funneling\u27s propriety and implications thus are poorly understood. Questions remain, for example, over whether funneling requirements infringe on the separation of powers and thus need not always be obeyed. And it is uncertain what if anything should follow from information funneling - whether, for example, those with whom information is shared should be able to take some action in response to what they learn. This article uses the recent controversy about warrantless surveillance by the National Security Agency as a jumping-off point to explore these questions. Specifically, the article focuses on information exchanges between Congress and the executive branch about the program. Part I examines these exchanges as well as inter-branch discussions about the same. It concludes that two major problems that these incidents reflect are widespread uncertainty as to whether Congress constitutionally may force the President to disclose information and a lack of careful consideration as to how any information funneling requirements should work. Part II lays a theoretical foundation for improving governing statutes and congressional rules. Part II(A) explains that Congress has the constitutional authority to set information-sharing requirements between the executive branch and itself. Part II(B) discusses the complicated relationships between the respective benefits of secrecy and openness, an understanding of which should guide information sharing rules. Building on Part II\u27s theoretical foundations, Part III suggests some answers to the questions raised in Part I as to how information funneling requirements should work

Classified Information Leaks and Free Speech

Much attention has been paid of late to unauthorized disseminations of classified information. A grand jury proceeding has been initiated to investigate the leak and publication of information about the National Security Agency\u27s warrantless electronic surveillance program. And in a case currently pending in the Eastern District of Virginia, the U.S. government for the first time is prosecuting private citizens for exchanging classified information in the course of concededly non-espionage activities - specifically, political lobbying. These events illuminate the underdeveloped and deeply under-theorized state of the law on classified information leaks and publications. The central chasm in existing theory and doctrine on the topic - apart from how little of it exists - is that it fails adequately to integrate the separation of powers and free speech issues that the topic raises. This Article integrates these two sets of issues, considering both the free speech values at stake and the discretion and capacity constitutionally accorded the political branches to protect national security information. This Article concludes that the national security related powers of the political branches - particularly the executive branch\u27s vast secret-keeping capacity - do not diminish the free speech protections that should apply in the realm of classified information. To the contrary, these powers make speech and transparency related checks particularly crucial in this realm. Significant first amendment protection for classified information leaks and publications, in short, is warranted. The President\u27s Article II capacities enable him to oversee a vast classification system. This can be inferred from constitutional structure and history, and also has been borne out over time as the classification system and the administrative infrastructure to implement it have grown dramatically. But with such capacity for, and realization of, a secrecy system, come substantial implications for an informed populace and hence for the First Amendment and the very structure of self-government. And the particular form of Presidential secrecy that is classification is so broad and so scattered in its manifestations that it cannot effectively be matched through discrete information requests from Congress or other government players. Instead, the First Amendment demands some breathing room for disclosure by those within the vast secret-keeping infrastructure as well as by the press and the public to whom information might be leaked. This analysis explains the intuition that the press and the public should be highly protected from prosecution for classified information publication. This intuition is largely correct, although it does not preclude punishment that would meet stringent First Amendment standards. This Article\u27s analysis also sheds light on the constitutional balance that must be struck in prosecuting government employees for information leaks. On the one hand, government employees serve as functionaries of Article II, subject to Presidential judgments with respect to national security secrets. In this sense, they bear an Article II responsibility that the press and the general public lack. On the other hand, they have special First Amendment value given their access to information within a vast and powerful secret-keeping system. Government employees thus merit a more moderate level of protection than do the press and the public, but a level substantially greater than that reflected by the automatic or presumptive criminalization of classified information leaks

Whistleblowers, Leaks, and the Media: The First Amendment and National Security

In 2000, President Bill Clinton vetoed a bill that would have criminalized all unauthorized leaks of classified information.1 In his veto message, Clinton agreed that “unauthorized disclosures can be extraordinarily harmful to United States national security interests and that far too many disclosures occur.” But the bill failed, in his view, to balance national security interests with “the rights of citizens to receive the information necessary for democracy to work.” The bill threatened to chill even “appropriate public discussion [or] press briefings” by Government officials. Similarly, it could have “restrain[ed] the ability of former government officials to teach, write, or engage in any activity aimed at building public understanding of complex issues.” Clinton called these risks “unnecessary and inappropriate in a society built on freedom of expression and the consent of the governed,” and “particularly inadvisable in a context in which the range of classified materials is so extensive.”

Secrecy and Separated Powers: Executive Privilege Revisited

This Article considers the constitutional validity of executive privilege claims made by the President against statutorily authorized information requests. The Article concludes that such claims are constitutionally illegitimate and that courts, when turned to, should order compliance with statutorily authorized demands for information in the face of executive privilege claims. This conclusion is reached in two steps. First, perusal of Article I\u27s list of legislative powers and Article II\u27s list of presidential powers does not clearly resolve the issue. Rather, such perusal alone offers fair ground to deem control of executive branch information both within Congress\u27 sweeping clause power and within the President\u27s execution power. Second, a broader analysis of constitutional text, structure and history demonstrates that information control has special constitutional significance. Specifically, such analysis suggests that secrecy within the political branches must, to be legitimate, remain a politically controllable tool of the people. To keep such secrecy within the ultimate control of the people, mechanisms must exist to keep the secrecy shallow and politically checkable. In other words, mechanisms must exist to ensure that the very fact of such secrecy is subject to public debate, reconsideration and reprisal. This is particularly crucial with respect to executive branch activities, given that branch\u27s special capacity for secrecy. The natural mechanisms to keep government secrecy shallow and politically checkable are statutory authorizations to Congress, to the public and to agencies to demand information. Furthermore, the statutory process itself is sufficiently protective of any interests in secrecy

Congressional Oversight of National Security Activities: Improving Information Funnels

This article, which was prepared for a spring 2007 conference at Cardozo Law School on The Domestic Commander in Chief, considers constitutional and policy questions regarding congressional oversight of national security activities. The article focuses on what I call an information funnel approach. Such an approach involves funneling information only to discrete groups of people. For example, statutory provisions require that intelligence programs be shared with the congressional intelligence committees. Other statutory provisions permit certain narrowly defined covert actions to be reported only to the congressional leadership. The intended benefits of funneling are intuitive. Funneling plainly is directed toward balancing the respective advantages of secrecy and openness. It demands some inter-branch knowledge sharing without requiring full public or even full congressional access. This article agrees that funneling is a theoretically and practically important means of reconciling secrecy and openness needs but contends that funneling has not, in fact, been taken seriously enough. The purpose and utility of funneling have been under-explored, and funneling\u27s propriety and implications thus are poorly understood. Questions remain, for example, over whether funneling requirements infringe on the separation of powers and thus need not always be obeyed. And it is uncertain what if anything should follow from information funneling - whether, for example, those with whom information is shared should be able to take some action in response to what they learn. This article uses the recent controversy about warrantless surveillance by the National Security Agency as a jumping-off point to explore these questions. Specifically, the article focuses on information exchanges between Congress and the executive branch about the program. Part I examines these exchanges as well as inter-branch discussions about the same. It concludes that two major problems that these incidents reflect are widespread uncertainty as to whether Congress constitutionally may force the President to disclose information and a lack of careful consideration as to how any information funneling requirements should work. Part II lays a theoretical foundation for improving governing statutes and congressional rules. Part II(A) explains that Congress has the constitutional authority to set information-sharing requirements between the executive branch and itself. Part II(B) discusses the complicated relationships between the respective benefits of secrecy and openness, an understanding of which should guide information sharing rules. Building on Part II\u27s theoretical foundations, Part III suggests some answers to the questions raised in Part I as to how information funneling requirements should work