The release of formerly classified documents and government cables by the whistle-blower website WikiLeaks in 2010 poses a dilemma. The government often has exclusive possession of information about its policies, programs, processes, and activities that would be of great value to informed public debate. But government officials often insist that such information be kept secret, even from those to whom they are accountable –the American people. How should we resolve this dilemma? The issue is complex and has many dimensions.
Following release of the documents, the Securing Human Intelligence and Enforcing Lawful Dissemination (SHIELD) Act was introduced in Congress. The proposed legislation would amend the Espionage Act of 1917 to make it a crime for any person knowingly and willfully to disseminate, in any manner prejudicial to the safety or interest of the United States, “any classified information . . . concerning the human intelligence activities of the United States or . . . concerning the identity of a classified source or informant” working with the intelligence community of the United States.
One of the major themes of the Cyberspace Policy Review (the Review) is that a national strategy on cybersecurity must be consistent with the protection of privacy rights and civil liberties guaranteed by the Constitution and the law. Indeed, President Obama underscored that point in announcing the Review when he said that his Administration “will preserve and protect the personal privacy and civil liberties that we cherish as Americans,” reiterating the theme from his inaugural address that choosing between our safety and our ideals is a false choice. The authors of the Review are to be commended for encouraging a national dialogue on how this can be achieved while promoting national and economic security. Intelligence agencies, particularly the National Security Agency (NSA), are at the intersection of these vital interests, and intelligence lawyers face daunting but tremendously exciting and important opportunities to help ensure that their agencies operate in ways that effectively balance demands for both privacy and civil liberties and for the security of cyberspace.
By any measure, the period between September 11, 2001, and the 2008 presidential election witnessed an unprecedented tangle of controversies at the intersection of national security law and policy. The Bush administration responded to the September 11 attacks and the threat of further terrorism by asserting expansive executive authority across a wide range of national security domains. The President fashioned new rules for detaining those captured in what was called the “global war on terror” …
