Government leaks, prosecutions and the news media: Recent research

 
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December 12, 2013

The ability to obtain confidential or classified information through leaks remains crucial to news media practice. Although specific cases may raise vexing questions, countless stories using such information channels have furthered democratic debate and served as a useful check on power, abuse and corruption. Even a cursory glance at the Pulitzer Prize winners over the years affirms this basic truth.

Still, recent revelations produced through Wikileaks and Edward Snowden have pushed the debate over the proper boundaries of access; and the Obama administration’s aggressive pursuit of leakers has raised questions about the limits of government intrusion into press rights under the First Amendment. Of course, the seizure of reporter’s materials and data by government, as was done in 2013 with Associated Press journalists’ phone records, dramatically raises the stakes — and points to the need, many media members say, for a federal shield law. But broader attempts by the government to prosecute employees who leak to the media, even using the Espionage Act to do so, raise wider questions about a possible choking-off of this vital stream of information.

Between 2005 and 2009, the U.S. government identified 153 instances where employees had leaked information; in 14 cases they had identified the persons they thought responsible, but in no cases was anyone prosecuted. This led to a renewed effort under the current administration to examine what some government officials perceived to be a problem. A 2013 report produced by the Committee to Protect Journalists, “The Obama Administration and the Press,” authored by former executive editor of the Washington Post Leonard Downie Jr., highlights the extent to which these new leak investigations have had a chilling effect across a wide range of agencies and hurt reporters’ ability to gather news. The report includes input from both journalists and administration officials.

The idea that leaks play a useful role in the functioning of democracy suggests a fundamental error at some level of law- and policy-making. If the information is helpful to the public, shouldn’t it have been open in the first place? To explain this situation, it may be useful to see a complex and hidden system of power relations at work. A 2013 article in the Harvard Law Review, “The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information,” provides one of the most comprehensive assessments to date on the role leaks play in American democracy. The author, David E. Pozen of Columbia Law School, combines theoretical perspective with knowledge obtained through interviews with journalists and public officials, as well as through the Freedom of Information Act (FOIA).

Key points in the paper include:

  • The record suggests that the government has historically been largely unsuccessful, or simply unwilling, to prosecute national security leaks: “Excluding cases of true espionage, all those thousands upon thousands of national security-related leaks to the media have yielded a total of roughly a dozen criminal prosecutions in U.S. history.” Only one espionage case in recent history has been brought against “anyone other than the initial source,” and no journalists in the past half-century have been prosecuted for publishing leaked information.
  • Overall, the rate at which such leaks are criminally prosecuted approaches zero. This “stunning” lack of enforcement highlights a little-recognized pattern: “We have, in other words, de minimis criminal enforcement of the laws against leaking. In formal terms this legal regime looks forbidding, draconian. In practical terms, as a frustrated intelligence professional once put it, the system amounts to ‘permissive neglect.’”
  • There is little data on internal reprimands of employees that do not rise to the level of criminal prosecutions, though the available evidence suggests administrative enforcement is also “extremely rare.” The evidence also suggests that practical constraints on these cases — it often seems difficult to track down the source of leaks — does not fully explain the lack of enforcement.
  • While the recent “uptick” of prosecutions under the Obama administration should not be minimized, the overall historical trends speak to other dynamics at work: The “planting” of leaks is a “critical policy-making and communications tool.” It allows administrations to play “two-level games,” sending messages to various audiences without having to take on the full burden of justification for policies and openness.
  • There is a delicate equilibrium in the “mutuality of interests” between officials and journalists, and the balancing of authorized and unauthorized leaks is a “nuanced system of informal social controls” that exists for a strong underlying reason: “It can be seen as a strategic response facilitated by Presidents and their appointees to a set of profound challenges confronting the modern administrative state. Even if we bracket all of the standard arguments about leaks’ value for transparency, public debate and the like, the counterintuitive yet inescapable conclusion is that some substantial amount of leaking is deeply valuable for the executive itself.”

“The great secret about the U.S. government’s notorious leakiness is that it is a highly adaptive mechanism of information control, which has been refined through a nuanced system of social norms,” Pozen concludes. “The great secret about the laws against leaking is that they have never been used in a manner designed to stop leaking — and that their implementation threatens not just gauzy democratic ideals but practical bureaucratic imperatives, not just individual whistleblowers but the institution of the presidency.”

Related research: For more on this argument, see Cornell law professor Josh Chafetz’s response, titled “Whose Secrets?” He argues that the proper remedy is more Congressional involvement with information policies in this area. Also see an effort by the Federation of American Scientists’ Project on Government Secrecy to make public a government report on authorized disclosures to the media of classified information.

 

Keywords: news, Pentagon Papers, Watergate, Wikileaks, Manning, Snowden

 

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Citation: Pozen, David E. “The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information," forthcoming in Harvard Law Review.