Leaks of classified information have probably never been as prominent and as influential in public discourse as they are today. So Rahul Sagar’s book Secrets and Leaks is exquisitely timed to help readers to think through the conundrums of government secrecy in a democracy and to consider the role of unauthorized disclosures.
This is of course not a new topic. The literature on government secrecy, and even the subset on leaks, is quite voluminous and is perennially renewed. Much of it, truth be told, is tendentious and predictable.
But Sagar makes a fresh, original and provocative contribution to the field. Our problems with secrecy, he says, are not simply attributable to official venality or mismanagement (or to the Espionage Act or the Manhattan Project) but instead are rooted in our constitutional structure. And leaks of classified information are not necessarily a lamentable deviation from good government but are — within certain limits — an essential safeguard that should be defended and encouraged.
There are important “silences” in the Constitution, Sagar says, about the authority of the executive branch to withhold secret information, and about the conditions under which Congress and the public may gain access to such information.
The Framers authorized the president to employ secrecy in the public interest, but did not fully explain how citizens and lawmakers could know whether the president is in fact exercising this power responsibly.
By withholding guidance on how to resolve conflicts over the proper boundaries of official secrecy, these constitutional silences generated growing tensions that by the twentieth century demanded some type of solution. But, Sagar says, none of the resulting solutions — involving various forms of congressional or judicial oversight — have provided a fully satisfactory solution to the challenges of executive branch secrecy.
Contemporary efforts have arrived at an impasse. The regulatory mechanisms that have been championed in recent decades — the Freedom of Information Act and the establishment of congressional oversight committees in particular — have proven ineffective at exposing wrongdoing.
Only leaks, he argues, have the potential to overcome the otherwise unresolved tensions over disclosure of national security information that are the legacy of our constitutional design.
This is not an obvious conclusion. Even some confirmed critics of government secrecy have resisted it. Senator Daniel P. Moynihan, for example, said “There must be zero tolerance for permitting such information to be released through unauthorized channels.”
Naturally, not all leaks are helpful or defensible; some may be quite dangerous. But the heart of Sagar’s book is an attempt to define the circumstances in which leaking may be a constructive and a desirable act.
In the end, following a detailed and critically nuanced discussion, Sagar concludes that leakers can be morally justified in making an unauthorized disclosure of classified information in violation of the law if the disclosure meets the following five conditions:
It “(a) reveals an abuse of public authority; (b) is based on clear and convincing evidence; (c) does not pose a disproportionate threat to public safety; (d) is limited in scope and scale as far as is possible; and (e) is made publicly.”
The final condition can be relaxed in some circumstances, not for the sake of the leaker but for the sake of the leak: “Anonymous disclosures are justified when they reveal gross wrongdoing.”
Sagar argues painstakingly that this is the proper conclusion, but he terms it “bitter medicine” and does not celebrate it.
“When we rely on unauthorized disclosures to combat the abuse of state secrecy, we inevitably degrade the quality of public deliberation, because the public can never be entirely certain as to which disclosures are reliable. The end result is intrigue, conspiracy, and indeed paranoia, as we see public opinion being shaped via a battle of leaks and counterleaks.”
Nevertheless, he writes, “even if we could somehow clamp down on unauthorized disclosures, this is not something we ought to do, because such disclosures are the principal means by which citizens and lawmakers can be alerted to concealed wrongdoing.”
“It would be preferable of course if we could ensure that only ‘deserving’ leaks are in fact made public. But this degree of control, we have seen, is out of our reach.”
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A reader who is new to the field will quickly learn a lot from Sagar’s book about many of the major issues and persistent debates concerning secrecy, oversight and press freedom. Readers with some background will be fruitfully challenged to examine their own presumptions and to articulate their own inevitable disagreements.
To someone who is concerned with reform of existing secrecy practices, as I am, Sagar seems too quick to dismiss the feasibility of such efforts.
He is skeptical, for example, about the utility of adopting internal executive branch reviews as a way of checking and correcting classification decisions. Even if those officials who perform the review have different incentives than the original classifiers, he says, “this does not mean that the former will have an incentive to promote transparency.”
But his skepticism is open to empirical challenge. Between 1996 and 2012, an executive branch body called the Interagency Security Classification Appeals Panel (ISCAP) completely overturned the classification decisions of an executive branch agency in 27% of the cases it reviewed, and partially overturned classification in an additional 41% of cases. This is an unexpected outcome, unnoted by Sagar, that would seem to offer real encouragement about the possibility of conscious, deliberate secrecy reform.
Likewise, Sagar argues sensibly enough that executive branch officials have no incentive to disclose wrongdoing by their own administration or even by their predecessors. Yet the curious fact is that sometimes they do. In the 1990s, for example, Secretary of Energy Hazel O’Leary up-ended decades of secrecy surrounding the nation’s nuclear weapons complex with consequences that continue to reverberate up to the present. What were the conditions that made such disclosures possible? How might they be replicated? The answers will not be found here, particularly since the questions are not asked.
And while it is surely true, as Sagar writes, that “Congress tends to defer to the president in the domain of national security,” Congress is also capable of instigating significant changes (for good or ill) to secrecy policy. By legislating the JFK Assassination Records Collection Act of 1992, for example, Congress fostered the independent review of classified assassination records and the expedited declassification of millions of pages of them, in many cases over the objections of agency classifiers. Congress has also overturned long-standing barriers to intelligence budget disclosure, among other mandated changes in secrecy policy.
(On the other hand, although Sagar asserts that “lawmakers have long been divided over whether and how to address the practice of leaking,” Congress has been rather consistently hostile to leaks. In 2000, both houses of Congress passed legislation that would have made any unauthorized disclosure of classified information a felony. If not for a rare veto by President Clinton, the measure would have become law.)
As for judicial review, Sagar has reason to argue that “judges are not well positioned to promote transparency.” Nevertheless, right now there are at least two cases I am aware of in which judges have ordered agencies to produce classified records for in camera review and de novo determination of the need for classification. (Electronic Frontier Foundation v. Department of Justice, DC District Court 12-cv-1441 ABJ, and Shaffer v. Defense Intelligence Agency, DC District Court 10-cv-2119 RMC). There is some likelihood that these proceedings and others like them will yield a new degree of transparency.
None of these promising departures from the norm are mentioned by Sagar, but they complicate the premises of his argument in significant ways. The point here is not that openness is blooming or that somehow “the glass is half full.” It’s not. But there are traces of moisture at the bottom of the glass that are not accounted for by Sagar’s abstract reasoning or by his categorical pronouncements about the irreconcilable conflicts created by national security secrecy in the executive branch.
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The first disclosures of classified information by Edward Snowden were published shortly before Secrets and Leaks went to press, and Snowden himself is mentioned just once in a footnote. But the Snowden case will likely be present in the minds of most readers throughout the book, and particularly during the author’s consideration of whether and when leaks can be justified.
Remarkably, Snowden appears to have satisfied most if not all of the criteria proposed by Sagar (and noted above) to establish a legitimate, and indeed desirable, leak of classified information.
Thus, the bulk collection of telephony metadata disclosed by Snowden is widely considered to be “an abuse of public authority,” such that this practice is now being modified or abandoned. The disclosure was “based on clear and convincing evidence” in the form of official documents. Whether it poses “a disproportionate threat to public safety,” however, is contested by some intelligence agency officials and may be ultimately unknowable. Whether it was “limited in scope and scale as far as is possible” is also disputed, particularly since the full scope of the disclosures is not yet publicly known and has in any case exceeded documentation of the practice of bulk collection. Finally, the disclosure was made publicly, in a manner that allows the public to reach an independent judgment as to Snowden’s motivations and intent.
However, Sagar did not anticipate what may be the most unsettling feature of Snowden’s disclosure— his flight from prosecution and his refusal to defend his actions in a court of law. This is arguably a breach of faith that is more profound than Snowden’s violation of his non-disclosure agreement.
In a 2009 hearing in the so-called “AIPAC” leak case, Judge T.S. Ellis III memorably presented his view that there is an indispensable requirement for whistleblowers who unlawfully disclose classified information to answer in court for their actions.
“I don’t have a problem with people doing that [leaking classified information] if they are held accountable for it,” Judge Ellis said at the time. “One might hope that, for example, someone might have the courage to do something that would break the law if it meant they’re the savior of the country. But then one has to take the consequences, because the rule of law is so important…. Disclosing it was okay if the person is willing to stand up and say, ‘I did it. Give me the consequences’.”
Sagar does not directly address the question of whether a leaker ought to submit to the judicial process, but he appears to hold a different view since he allows for the possibility of anonymous disclosures in cases of gross misconduct such as the abuse of prisoners at Abu Ghraib prison.
“Requiring a whistleblower to be willing to disclose her identity makes it less likely that even those officials who have good intentions will blow the whistle,” Sagar writes. And since he says that society has an overriding interest in disclosures of gross misconduct that cannot be addressed any other way, Sagar concludes that legal accountability for the leaker can be dispensed with in such cases.
Throughout the book, Sagar demonstrates a healthy contrarian streak. He defends executive privilege, he argues dubiously that Congress is more prone to unauthorized disclosures than the executive branch, and he seriously considers the possibility of legislating penalties against news organizations for inappropriate use of anonymous sources.
Refreshingly, he is about as critical of his own arguments as he is towards those of others, and readers will be the wiser for it.
(Steven Aftergood directs the Project on Government Secrecy at the Federation of American Scientists.)