Editor’s note: This essay is adapted from the author’s coda to the forthcoming volume “Whistleblowing Nation: Disclosing U.S. National Security and the Challenge of Dissent,” edited by Kaeten Mistry and Hannah Gurman, Columbia University Press.
David Pozen is a Professor of Law at Columbia Law School, where he teaches and writes about constitutional law, national security law, and information law, among other topics. For the 2017-2018 academic year, Pozen is the inaugural visiting scholar at the Knight First Amendment Institute at Columbia University.
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Talk of constitutional hardball is in the air.
“The Internet,” Ira Magaziner opined in a 1998 speech, is “a force for the promotion of democracy” as well as “individual freedom and individual empowerment.” At the time he gave this speech, Magaziner was the Clinton administration’s internet guru. He began his remarks in a tentative register, observing that “humility is an important quality for anyone working to develop policies for the Internet,” given the “uncharted” nature of the terrain.
President Trump’s firing of FBI Director James Comey is startling and deeply unsettling. Of the many reasons why it is so troubling, we want to highlight one that has received less attention. The process by which Comey was fired appears to raise a version of the same professional concerns that the firing supposedly responds to: a breach of longstanding norms that have developed to protect the integrity, independence, and rule of law values of the Justice Department.
The United States is pressing hard to get hold of National Security Agency leaker Edward Snowden. But if and when Snowden is apprehended, what then? This question deserves attention, too, because the denouement to this drama may be unpleasant not just for Snowden, but for his captors as well.
The downside for Snowden is straightforward. He faces prison time in this country. Even if his disclosures were well-intentioned or exposed any misconduct, no court has allowed a classified information leaker to escape liability on those grounds.