"Popular government without popular information or the means of acquiring it is but a prologue to a farce, or tragedy, or perhaps both."
– James Madison
As a principal architect of the Constitution, James Madison foresaw clearly the dangers of a secretive government striving to keep the people in the dark about its activities. These perils are vividly illustrated by two recent criminal investigations launched by the Justice Department into unauthorized news leaks involving clandestine Bush administration initiatives.
In both cases, the probes are intended to stanch the flow of vital information to the public – to the detriment of open government and the democratic process.
The first investigation is an effort to uncover the sources of The New York Times' disclosure of spying without warrants on Americans by the National Security Agency. Advocates on opposite sides can argue whether the leak compromised national security, as President Bush claims, but there is no contesting the public's compelling interest in knowing about such constitutionally dubious endeavors.
The Justice Department does not contest the accuracy of The New York Times report, yet appears eager to pursue criminal charges against those who supplied the truthful information. According to the newspaper, it relied on "nearly a dozen current and former officials" of the Bush administration.
The second government probe is directed against those who told The Washington Post about covert CIA prison camps established abroad to detain and interrogate terror suspects. The Post reported, by all accounts truthfully, that at various times the secret prison camps were located in eight countries, including Afghanistan, Thailand and emerging democracies in Eastern Europe.
A likely line of attack in both anti-leak investigations will be to require the journalists who brought the information to light to reveal their confidential sources. Whether the Justice Department succeeds in this effort or not, it will have a chilling effect on any official who is tempted in the future to reveal the facts about government wrongdoing. And, in the end, the big loser will be the American people, who will be deprived of essential information about their government's activities.
As special prosecutor Patrick Fitzgerald demonstrated in the Valerie Plame case, aggressively going after reporters' confidential informants can be a productive way to plug leaks of unauthorized information. Because there is no federal law shielding journalists from divulging their sources – as there are laws in California and most other states – the Justice Department can use the threat of imprisonment to compel reporters to turn over their notes and reveal their sources.
If the Bush administration succeeds in constricting the flow of critical information to the people, self-government will become, as Madison aptly warned, a prologue to a farce, or tragedy, or perhaps both.
