Secrecy: Leaks Prosecutions

Schoenfeld on the Selective Prosecution of Leakers

By Jack Goldsmith
Wednesday, May 28, 2014, 12:23 PM

Gabriel Schoenfeld, author of the indispensable Necessary Secrets, has a new essay in Hoover’s Emerging Threats series entitled “Secrecy, Leaks, and Selective Prosecution.”  He offers this description of the essay:

Does it matter that low-level government officials are prosecuted and sent to prison when they leak classified information, yet high-ranking officials in the White House and the cabinet departments leak with abandon and are never brought to justice?

It doesn’t matter to the courts. Allegations of selective prosecution have gone nowhere when leveled by defendants in many of the recent leak cases brought by the Bush and Obama Justice Departments. But the charge of selective prosecution certainly matters in the court of public opinion. The investigative reporter Michael Isikoff of NBC News is not alone in wondering how the Obama administration can “credibly prosecute mid-level bureaucrats and junior military officers for leaking classified information to the press when so many high-level officials have dished far more sensitive secrets to [Bob] Woodward?"

Isikoff is asking a question that does not admit of an easy answer. The fact is that our laws governing secrecy are enforced in a way that invites charges of double standards and caprice. Indeed, in a system in which millions of people hold security clearances, the hypocrisy on display has the effect of breeding disrespect for the classification system. The nation is now paying a price for that disrespect in the appearance of mega-leakers like Bradley Manning and Edward Snowden, who justify their disclosures in part by pointing to the massive and unpunished leaking from the top of our political establishment.

Should the inequity be addressed, and if so, how? Back in January, the Task Force on National Security and Law at the Hoover Institution at Stanford University invited me to present a paper about this problem. My remarks came in for some sharp objections to which I did not have ready answers. I am grateful to Hoover for now affording me the opportunity to put forward my views in a revised and extended form and with the benefit of the criticism my ideas received.