Don't let the Nutjobs obfuscate the subject.
The wiretap leak is not similar to the Valerie Plame leak.
Valerie Plame's identity was leaked to punish/discredit a political adversary.
The wiretap information was leaked (presumably) because the leaker believed the program was illegal.
In the Valerie Plame case, neither the leaker nor the reporter should have any legal protection. There is no compelling public interest in allowing politicians to leak classified information to punish their adversaries with impunity. I do not buy the theory that the media would not be able to do its job if it did not protect all confidential sources. Sources should have no reason to expect confidentiality in such cases and media should not grant such confidentiality.
In the case of the wiretap information, I believe there potentially is a compelling public interest in protecting the leaker. Government should not be allowed to classify evidence of its own misconduct. In fact, such classifications are currently illegal. Government employees should be immune from prosecution if they leak information regarding government misconduct. I would fully support putting off criminal proceedings (including forcing reporters to testify) until the courts rule on the legality of the wiretapping. If the wiretapping is found to be illegal, then all criminal proceedings should be dropped.
It is the case where the wiretapping is found to be legal that this issue becomes problematic. Under most circumstances, I would argue that if the government conduct is legal, then it remains illegal to leak the information. However, might there be a gray area where the conduct is legal, but it would still make sense to protect the leaker? Should the courts have the prerogative to essentially rule that the conduct was questionable enough that the leaker was acting with the best of intentions even if, at the end of the day, the government conduct was found legal?
This might be a similar legal argument to certain self-defense arguments. To argue self-defense, it is enough to show that you believed you were in danger, even if later evidence shows you really were not (e.g. it was a toy gun but you did not know it at the time). Similarly, Government employees would be given immunity from prosecution as long as they could show they believed they were leaking evidence of misconduct, even if the courts eventually ruled the conduct legal.
The idea would be that such immunity would allow questionable conduct to be ruled on by the courts, without the leaker having to worry about what would happen if the conduct was found to be legal. Unfortunately, this is too simplistic an argument. It leaves out the compelling need to keep secrets. If the wiretapping is found to be legal, for example, then it will be unfortunate that it is no longer secret.
Therefore, I have a solution. Like the secret FISA courts, there should be a secret court that allows government employees to question government conduct. If the conduct is found to be illegal, the court would overturn the classification and the information would become public. If the conduct is found to be legal, then everything stays secret. The Supreme Court would be allowed to review and rule on such cases (at its discretion) without them becoming public. Employees would be allowed to refer cases to this court without fear of reprisals by superiors.
We need to find a way to allow government employees to object to classified government actions and have those objections reviewed by an independent tribunal without requiring the public release of the classified information. Imagine the dilemma of a government employee involved in the wiretapping. Imagine the employee that questions the justice department's ruling of legality, but has no independent court or even legal scholar to check with — because doing so would be illegal. Imagine that employee thinking something like "I'm really worried about the legality of this, but if it turns out to be legal, then it should remain secret". What does that employee do? Where can he go to assuage his fears?
Comments