Washington is awash in leaks. Should these leaks be praised or should they be condemned, as the president argues? President Trump’s supporters may argue that his critics—Democrats in particular—praise or condemn leaks as it suits them. Consider the hypocrisy, they will say:
First, since Democrats criticized Wikileaks’ publication of John Podesta’s emails, shouldn’t they also criticize NSA and FBI employees who have disclosed information about contacts between Trump Administration officials and Russian officials? Second, if it was wrong for Edward Snowden to have disclosed communications intelligence, as many Democrats argued at the time, then shouldn’t they also think it is wrong for NSA and FBI employees to disclose communications intelligence about Russian contacts with the Trump Administration?
These questions aren’t trivial. So how to respond?
The answer to the first question hinges on what kind of leaks are in question—those that expose wrongful or unlawful activities as opposed to those that reveal private behavior or information. The former variety further the public interest because they bring to light information that citizens and overseers require in order to hold representatives to account. Leaks about contacts between Trump Administration officials and Russian officials clearly fall into this category. The latter variety may have only a faint connection to the public interest. It may be of some interest to have an unvarnished account of the private conduct of public officials, but this interest hardly seems weighty enough to justify the violation of a person’s privacy (especially when the violation is wholesale). Leaks about Podesta’s pizza orders and office politicking fall into the latter category.
The answer to the second question hinges on knowing when unauthorized disclosures are justified. The president’s supporters may argue that intelligence leaks are never justified because they are illegal. To this the press and First Amendment aficionados may respond that leaks are never unlawful. In their view, the Espionage Act, often used to prosecute leakers, was never meant to be used in this fashion. This response is untenable, but even supposing it were true, it is irrelevant. The Communications Intelligence Act (18 USC §798) plainly makes it unlawful—without exception—for persons to communicate or publish classified information “concerning” or “obtained by” the “processes of communication intelligence.”
So the president is right to say that government employees who have disclosed intercepts pertaining to Russian actions, and even the reporters and newspapers that have published these leaks, have broken the law. But must the law always be followed? Suppose you witness a hit-and-run. There are clear signs saying that you are not to stop or park along the road. You would of course nonetheless stop on the reasonable calculation that disobedience is justified since a weighty interest is involved, and when there aren’t other means of aiding the victim. This is the position that intelligence officers sometimes find themselves in—only they can assist the victim, because only they are aware of the harm that has been done. Indeed when the harm they are witnessing is sufficiently acute, government employees may not only be justified in breaking the law, they may even be obliged to do so.
This is not the end of the story, however. Much depends on how a government employee breaks the law. Let us return to the analogy. As you rush the victim to the hospital are you morally obliged to stop at every red light along the way? It depends, surely, on how crowded the roads are, and how badly the victim is injured. If the roads are busy, jumping a light will likely endanger more lives than it will save. But if the roads are clear, and the victim is hemorrhaging, then it is ethical to run a red light. This is the standard that government employees and the press ought to hold themselves to. If they act rashly they will end up doing more harm than good. Arguably, this is why Snowden does not deserve a pardon—he disclosed classified information without much regard for consequences, seemingly driven by his own pet peeves. Did we really need to learn precisely how the United States spies on foreign powers, for instance. Far better then to act temperately—disclosing only as much information as is necessary to kick start the processes of oversight and accountability. This may be where we are today. But it is not easy to be certain. Since ordinary citizens are not privy to the contents of the intercepts, we must hope that the government employees responsible have faithfully calculated that the cost of disclosing such intelligence is worth bearing because the danger confronting the nation is so great.
There are costs, to be clear. The recent disclosures are likely to have exposed sources and methods since Russian agents have presumably learnt that their communication channels are not secure. There are also political costs for the intelligence community, since the leaks can be—indeed are being—portrayed as an effort to subvert the president.
It now remains for Congress to credibly investigate the worrying claims that have been aired. Should the claims prove true, then we will be indebted to the individuals that have made these disclosures at great risk to themselves. Should the disclosures prove unfounded, however, then President Trump’s supporters will have reason to think that politically motivated insiders have engaged in sabotage, and recriminations may well follow. It is also worth pointing out that should Congress fail to conduct a credible investigation, then further disclosures may be justified. This would be not unlike how the driver in our analogy may drive the victim to a different hospital should the first one prove unwilling to attend to the emergency.
It cannot be said enough that with great power comes great responsibility. This aphorism applies as much to presidents as it does to the press. There are “good” and “bad” leaks. To make the distinction, officials, reporters, and citizens must think carefully about the what, when, and how of unauthorized disclosures.
Rahul Sagar is Global Network Associate Professor of Political Science at New York University in Abu Dhabi and Washington Square Fellow at New York University in New York. He is the author of Secrets and Leaks: The Dilemma of State Secrecy.