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The ship of state will always leak

April 5, 2013, at 10:22 AM

When Britain struggled to protect its military secrets after the first World War, the worst abusers were not rank and file intelligence officers in the low ranks of what would later be known as the Secret Intelligence Service, of MI-6. Actually, two prime ministers, Winston Churchill and David Lloyd George, gave the cabinet office the greatest headaches, wanting to disclose oodles of sensitive information in their self-serving memoirs.History repeats. In the United States, for all the official whining about compromised government secrecy, the evidence that political appointees and senior military officials truly want to stem the outflow of classified information is scant. Indeed, it seems like the government goes out of its way to create a zone of freedom, within which policy-makers of a certain echelon can carefully traffic in sensitive information without any ramifications.

What’s the disconnect?

David Pozen, a law professor at Columbia, has analyzed every government leak prosecution since 1917, when the Espionage Act was signed into law. Out of thousands of leaks, only a dozen-odd prosecutions have made it to trial phase. (The current administration is responsible for half of those, almost all directed against low-level bureaucrats or whistleblowers.)

There are several nominal reasons for the lack of prosecutions. It may be hard to narrow the base of potential sources of leaks, although often it is not. Often, fewer than 100 officials are privy to the given details of an operation; even fewer might know its classified code word or associated nickname. Also, while prosecutorial resources are indeed limited, Pozen found that many government agencies simply fail to report leaks of classified information to the Justice Department, preferring to handle the matter internally, if at all. Some think the Espionage Act itself is not very strong, but its language is broad enough to cover most "crimes" committed under its aegis. However, journalists, even if their sources are under assault, are given extraordinary privileges. If a source of mine gives me a classified document, he or she has added one person to the roster of people who know about a secret. If I publish that document, I’ve added millions. And yet, the chances that I’d go to jail for that crime – and it is a crime – unless the government or a judge decides to jail me for refusing to acknowledge the identity of a source. The chances that my source could go to jail for a serious crime or lose his life or livelihood, are quite considerable if his identity is known. And yet, it was I who told everyone the secret.

In theory, this might reduce my incentive to rely on low-level sources for leaks; it increases my incentive to cultivate sources among those who feel immune from the pressures and obligations of secrecy.

In a forthcoming article for the Harvard Law Review, Pozen believes that the "puzzle of permissive neglect" is not explained by the difficulty of prosecuting leakers or entirely by a lack of political will. Instead, he suggests that the executive branch and Congress have real reasons to keep the aperture open, at least to the degree that they can control it.

It’s not just that government officials plant information to serve their self-interests or to foster an internal critique of a policy. In many ways, leaks of classified information allow them to avoid debate on controversial policies while sending subtle messages to the various actors involved: the public, Congress, bad guys, cooperative countries and those who would do harm to the U.S. The outward of flow of classified information, when directed, often allows policy-makers more latitude to make decisions.

Obama himself has insisted he never authorized any leaks of classified information. Let’s give him the benefit of the doubt. He might not have to. Executive branch officials seem to acquire a view that they can operate under the penumbra of authority to explain policy to journalists. The authority, in other words, is implied by habit and history.

Since the public is conditioned to accept leaks, and since they expect that journalists will eventually get to the bottom of whatever the executive branch is doing, a leaky administration can send a strong signal to the public that it is a more honest, more transparent one. We are rightly suspicious of a government that keeps its cards close; if a few of them flutter out, we are bound to be less so.

Since disclosing classified information is illegal and violates the oath that many take, the government must find ways to appear to crack down on ancillary sources of leaks in order to make themselves feel like they’re being attentive to the problem. Second, in order for the disclosure of classified information to have an effect, it has to have a cachet of being something worth obtaining. If the government didn’t actively crack down on leakers in some way, then it devalues the leak itself. Prof. Pozen borrows a term from economics: this is manufactured scarcity.

And when the government tries to cut down on leaks, it focuses on those who don’t usually leak: the 99 percent of government employees who actually do the classified work. They’re subject to more intense polygraphs, or witch-hunts, or worse. To the powerless, the secrecy machine is very scary.

No one is thrilled with the leakiness we have: in an ideal world, there would be no over-classification and therefore much less need for anonymous disclosure.. But against the backdrop of a massive secrecy state, leakiness delivers a range of net benefits, for those inside as well as outside government. Being so dependent on leaks may not be ideal, but it allows everyone to get by. 

When you engage in a discussion with government officials about the negative ramifications of leaks, and you point out that spy disclosures have actually hurt national security in the past while leaks, at most, have made executive branch policy decisions less efficient. In other words, has there ever been an instance where classified information when disclosed significantly degraded national security? Some might have hurt, but have any really harmed?

The official might respond that she cannot say; that historical conclusion might necessarily be classified.

That’s what they say, anyway. Their behavior suggests otherwise. That no formal penalty is incurred for high-level leaking, and that reporters continue to print what we know is classified information on a daily basis suggests that collectively, we’ve come to perceive a net benefit in a political culture where secrecy disclosures are part of the currency.

 

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