When are leaks legitimate?

Thoughtful review by Jack Shafer of Rahul Sagar’s Secrets and Leaks: The Dilemma of State Secrecy (Princeton University Press, 2013, 304 pp. $35.00).

Sagar asks, when is it legitimate for an official to disclose secrets? His answer is both conventional and brave — because he must know how many readers will find examples that call his reasoning into question. Unauthorized disclosures of classified material should remain illegal, he writes, because no one official can know with any certainty which disclosures will ultimately serve the public interest. Having made the case for keeping the laws against leaking secrets intact, Sagar then sets five conditions a disclosure must meet before officials can disregard the laws: the disclosure must reveal real wrongdoing or the abuse of public authority, it must be based on evidence rather than hearsay, it must not threaten public safety disproportionately, it must be limited in scale and scope as much as possible, and the leaker must unmask himself and take his lumps to prove that he made the disclosure in good faith and not to gain advantage for himself or his allies.

The Snowden affair happened too late for Sagar to include it in Secrets and Leaks beyond a throwaway footnote, but it makes for an obvious and interesting test of Sagar’s framework. Snowden’s unilateral disclosures do not come close to clearing Sagar’s standard for legalization: as an NSA worker bee, Snowden was in no position to balance the public-interest repercussions of his acts. Nor do they clear Sagar’s first condition for justifiability: although the mass surveillance Snowden revealed may have come as a disconcerting shock to many of his fellow citizens, it might not have been illegal.

Shafer goes on to apply Sagar’s other tests to Snowden and makes some interesting points. He finds that some of them aren’t really relevant or useful. So we’re back to the intractable problem of how to deal with excessive secrecy in a democratic society.

Sagar devotes a chapter to why the regulation of secrecy can’t be turned over to the courts — they lack the expertise and the training to parse secrets, and they are supposed to be open institutions, doing their business in public. Nor can Americans expect Congress to do much better than the executive branch, he argues in another entire chapter. Congress can serve as a watchdog, but there is no reason to think it “will behave any more responsibly than the president,” especially when it knows that outsiders will not be able to second-guess its decisions. That leaves whistleblowers and the press to hold the president accountable for his handling of secrets. Sagar shuns this option. Although he approves of leaks that prevent abuses of power, he believes (along with many others in and around government) that journalists lack the necessary understanding of the big picture to responsibly pass unauthorized disclosures on to the public.

I disagree (but then, as a journalist, I would), because from where I sit, it seems the press has actually been quite conscientious in this regard — for example, in its reporting on the files stolen by the army private now known as Chelsea Manning. In January 2011, my Reuters colleague Mark Hosenball, a national security reporter, cited internal U.S. government reviews that assert that the massive leaks of diplomatic cables by Manning “caused only limited damage to U.S. interests abroad” and “made public few if any real intelligence secrets.” As with the publication of the Pentagon Papers, the leaks created more embarrassment than damage.

As for the Snowden leaks, it’s too early for journalists and others to discount the damage they may have done to U.S. national security. But rare is the leaker whose output unites almost half the House of Representatives, as well as the top Internet companies — Google, Microsoft, Facebook, Apple, Twitter, LinkedIn, Yahoo, and AOL — which issued a joint statement in early December protesting the government spying revealed by journalists working with Snowden.

This is a very good review which makes uncomfortable reading because it suggests that the ‘democratic dilemma’ of how to balance secrecy with accountability and openness might actually be insoluble. Some of the most vociferous establishment attacks on the Guardian‘s Editor, Alan Rusbridger, focus on the proposition that he is not in a position to judge whether a particular disclosure will endanger national security. But the weakness of that position is its assertion that only those who are within the secret circle are capable of making the judgement call. And, because of the necessity for secrecy, they can never explain their reasoning to us: in the end, that proposition boils down to “trust us”. But we have no idea if they are worthy of that trust, and sometimes they have clearly shown that they are not.