Unauthorized disclosures of classified information – or leaks – have the potential to compromise the intelligence community’s sources and methods, cooperation with allies and foreign diplomats, and the safety of the nation’s armed forces. Despite these threats, no member of the U.S. media has ever been indicted or convicted for publishing leaked information, and the U.S. government has only successfully prosecuted two government officials under the 1917 Espionage Act, one of whom was later pardoned.
There are instances when leaks of national security information benefit the public and need to be debated, such as the Pentagon Papers’ exposure of wrongdoing in Vietnam. However, there are other instances where leaks may not have genuinely furthered public knowledge and needed debate – such as the public revelation in 2012 that the U.S. was waging cyber warfare against countries such as China. Whether positively or negatively perceived, leaks continue to occur. This is clear and compelling evidence that innovative approaches are necessary to deter those who engage in the unauthorized disclosure of classified information when it genuinely harms national security.
In a piece in The New York Times, Alan Dershowitz emphasizes the fact that there will never be a concrete solution that will eliminate the tension between the government’s right to secrecy and the media’s right to a free press. “Constant tension between the government and the press is an essential requisite of our system of checks and balances,” Dershowitz states. A similar sentiment is echoed by David Sanger, the chief Washington correspondent for the same publication. When asked specifically about the press disclosures made possible from the WikiLeaks documents, Sanger said: “It is the responsibility of American journalism, back to the founding of this country, to get out and try to grapple with the hardest issues of the day and to do it independently of the government.”
More frequently than not, the subject of academic debate surrounding leaks in the media center upon the right of the press to publish leaked information. Debate surrounds the ability (or historical inability) of the government to prosecute members of the media and (with minimal, but greater, success) the leakers themselves for publishing classified information. However, Jamil Jaffer , former associate counsel to President George W. Bush on State Department, Defense Department and intelligence community matters, believes there’s more people to blame than the leakers and the media themselves when it comes to leaking classified information. His take is that prior administrations and President Obama’s administration should be added to the list of culprits responsible for any harm done to the nation’s security as a result of leaks.
Most of the debate over leaks in the mainstream media involve instances such as WikiLeaks – when properly classified information is publicly released without being declassified. But Jaffer examines two other scenarios where national security interests can be compromised and where the White House administration could be at fault: when (1) when information is improperly classified and (2) when properly classified information is declassified for political reasons without due regard for the impact on national security (Jaffer).
How could these two cases be more dangerous than instances like WikiLeaks? For starters, Jaffer believes it’s these two categories that allow leakers to claim that the benefits of their actions (allowing the public to debate the disclosed issues) outweigh the harm to national security. Secondly, when information is improperly classified, it can encourage the improper release of that information. When media outlets then publish that information, it potentially allows leakers to justify their actions and gives them a false sense of protection from government prosecution because they feel as if they have public support and backing (Jaffer).
It’s clear from the historical relationship between the media and the government that tensions will always exist when it comes to disclosing classified information. This perpetual certainty is evidenced in the comments from Dershowitz and Sanger. But Jaffers’ unique approach to the issue – placing blame not only on the leakers and the media, but the administration itself – begs the question: if the administration is equally as responsible for leaks, then what can the administration do to stop them?
Based on solutions put forth by a number of academics and government officials, a combination of the following recommendations could potentially allow for the transparency and availability of information to the media, while still protecting the legitimate national security interests of the government.
1. Enact an updated, comprehensive federal statute based on the 1917 Espionage Act that is more specifically written to address unauthorized disclosures of classified information.
In a 2010 hearing before the House Committee on the Judiciary regarding WikiLeaks and the Espionage Act, Committee Member Rep. Louie Gohmert astutely pointed out that the drafters of the Espionage Act could not have foreseen its application in a digital age, and the possibility that “nearly 100 years later, sensitive information could have been transmitted to a global audience instantaneously” (Espionage Act, 2010). Thus, there is a clear and present need to update the Espionage Act, particularly to specifically address leaks of classified information. The most effective update to increase successful prosecutions would be to provide for action to be taken against both the government official who discloses classified information, as well as against the media outlet that publishes that information with the knowledge that it is classified (Bruce).
However, this is probably the most controversial approach that has been proposed, and is unlikely to be successful at any point in the near future, given that our constitutionally enshrined freedom of the press is a unique and sacred right in the U.S. For example, the intense questioning of a media outlet regarding its right to publish leaked information – like that which occurred last week when members of Britain’s Home Affairs Select Committee questioned The Guardian editor Alan Rusbridger – would not stand in the U.S. This is even more evident, as The New York Times editorial board spoke out against Rusbridger’s questioning, stating that the newspaper’s decision to share leaked information with other media outlets was “none of Parliament’s business” and that “the price for printing uncomfortable truths should not be parliamentary and criminal inquisition.”
Consequently, the following two recommendations are more likely to be within the government’s power to enact to reduce instances of intelligence leaks without infringing on the freedoms of the press:
2. Initiate a government-wide effort to administratively address the problem of intelligence leaks.
Since leaks must originate from those within government agencies and departments who have access to classified information, a more realistic approach to stemming leaks would be to undertake a government-wide initiative to deter those who disclose classified information through administrative means. Departments should continue to conduct immediate investigations of unauthorized disclosures likely stemming from their employees. With the likelihood that the Espionage Act will not be changed to enable the government to prosecute leakers more easily, agencies and departments can also deter leaks by bringing a civil lawsuit against those employees who violate their employment contract by leaking classified information (Ashcroft).
3. Reduce over-classification.
Lastly, federal departments and agencies could move to guarantee the proper and timely classification and declassification of intelligence. In a hearing before the House Committee on the Judiciary on the Espionage Act and specifically concerning WikiLeaks, Committee Chairman Rep. John Conyers stated that “sometimes secrecy is necessary” but that “the real problem today is not too little secrecy, but too much secrecy” (Espionage Act, 2010). By reducing over-classification, the government could combat one of the most widely-cited justifications for leaking information, according to Jaffer. By only classifying appropriate material, the government would be taking steps towards ensuring that at least one “quasi-‘moral’ justification” for unauthorized disclosures of classified information is no longer available to leakers (Jaffer). Additionally, if best practices are followed and confidence is restored that information has been properly classified for legitimate reasons, it could prove valuable and persuasive when leaked information reaches the hands of journalists, who might be more willing to edit or hold their stories.
Ashcroft, J. (2002, October 15). Letter from the Office of the Attorney General to the Speaker of the House of Representatives. Retrieved from http://www.justice.gov/ag/readingroom/letter_house.pdf.
Bruce, J. “The Consequences of Permissive Neglect.” Studies in Intelligence 47 (2003).
Dershowitz, A. (2010, May 28). “Who Needs to Know?” The New York Times. Retrieved from http://www.nytimes.com/2010/05/30/books/review/Dershowitz-t.html?pagewanted=2.
Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks: Hearing Before the Committee on the Judiciary House of Representatives. 111th Cong. 1 (2010).
Jaffer, J. (2010, December 1). “More Than Assange Are to Blame for WikiLeaks Damage.” US News. Retrieved from http://www.usnews.com/opinion/articles/2010/12/01/more-than-assange-are-to-blame-for-wikileaks-damage?page=2.
n.a. (2010, December 8). “NYT Reporter Defends Publishing WikiLeaks Cables.” NPR. Retrieved from http://www.npr.org/2010/12/08/131884250/nyt-reporter-defends-publishing-wikileaks-cables.