Were Snowden’s leaks justified? Rahul Sagar’s Secrets and Leaks sheds important light on the question. In carefully argued and lucid prose, Sagar, a professor of politics at Princeton, argues that secrets are inevitable, as are leaks—and that leaks have an important if precarious part in checking secrecy abuse. The power to declare information secret, like many other authorities, is both essential and susceptible to misuse. In theory, formal legal checks on executive power to determine what should and should not be secret would be preferable to leaving abuse-checking to leakers who take it upon themselves to break the law. But, Sagar contends, the two principal alternative candidates for implementing formal oversight—the courts and Congress—are each unlikely to perform the function effectively.
Courts, Sagar argues, are not well positioned to second-guess executive assessments that particular information must remain secret, save in the most egregious circumstances. Judicial practice bears him out; courts generally defer when the executive contends that national security requires secrecy. For its part, Congress is simply too large, porous, and partisan to be entrusted with the job. And whichever branch of government undertakes this checking function will have to do its work in secret, and thus will face some of the same temptations and credibility problems that the executive does.
Moreover, the question of when a leak is justified is not generally susceptible to resolution by clear rules set out in advance. The disclosure of a flagrant criminal act might seem to be an easy case, but most leaks don’t involve flagrant criminality. Nothing disclosed by Snowden or Manning, for example, rises to that level. And it is conceivable that even in the case of a clear crime, the damage to national security from disclosure might outweigh the benefits—as where revealing a minor crime would blow the cover of important clandestine agents.
Sagar is not a naive defender of leakers, however. He recognizes that there are real risks when unelected individuals transgress judgments of elected leaders on matters of the nation’s security. They may act for personal or partisan reasons and expose information in one-sided and misleading ways that are difficult for the government to counter without spilling still more secrets. They often do not have the information or perspective to assess accurately the potential damage from their disclosures. And as self-appointed guardians, they lack democratic legitimacy.
Nonetheless, Sagar argues that disclosure of secrets by private leakers is morally justified when it (1) is based on clear and convincing evidence of abuse of public authority, (2) does not pose a disproportionate threat to public safety, and (3) is as limited in scope and scale as possible. Sagar has helpfully identified the right questions. But as he himself is the first to concede, the application of these principles in individual cases is extraordinarily difficult.
By Sagar’s standards, Manning’s and Assange’s disclosures were for the most part not justified. While some specific war logs and cables may have revealed illegal conduct without disproportionate harm to public safety, Manning’s dump of several hundred thousand documents was in no way narrowly tailored. The leaked State Department cables in particular “outed” many individuals who put themselves at considerable risk by confiding in embassy officials in countries with repressive regimes or internal strife.
Manning’s disclosures forced the US to devote vast resources and time attempting to identify persons at risk and help secure their safety. Manning’s defenders object that the government has not named anyone who was actually killed as a result of the disclosures, but that may well be a combination of quick responses and sheer luck. And even if no one was killed, the disclosures reduced the reliability of US diplomats’ promises of confidentiality, and thereby almost certainly deterred others from coming forward. Much like journalism, diplomacy depends for its lifeblood on promises of confidentiality. In any event, there is no evidence that Manning made the kind of fine-tuned assessment that would have justified disclosures—or that he had the knowledge to do so.
The ethical and legal questions for Assange, as for journalists generally, are different. Manning was afforded access to classified information on the specific condition that he not disclose it. Assange, an Australian freelance journalist and publisher, was under no such obligation. Because of the protection given to journalists by the First Amendment, no member of the press has ever been prosecuted under the Espionage Act for publishing classified information. Thus, while Manning serves thirty-five years and Snowden faces even more serious penalties, the journalists who published their leaks are generally free from prosecution.
Still, while journalists who obtain classified information generally have no legal duty to keep it secret, they have an ethical obligation to consider the risks that their reporting may create. Contrary to some reports, WikiLeaks did initially take measures to “redact,” or black out, the names of individuals who might be put at risk from its publication of Manning’s documents. But it also made the unredacted documents available to some journalists, subject to a not very carefully controlled password, and when a Guardian journalist published the password, WikiLeaks in turn published the cables in their unredacted entirety. The result is that thousands of cables were published that disclosed no violations of law, many of which put innocent individuals at risk of retaliation.
Snowden’s is a more complicated case. Did he have “clear and convincing evidence” of an “abuse of public authority,” as Sagar would demand?
The most significant abuse of authority that Snowden has revealed is not the illegality of any particular NSA action, but the fact that such an extensive spying program was authorized entirely in secret, without public input, assent, or even knowledge. While there must be room in a democracy for limited covert actions, surveillance of this scope—affecting every American and large swaths of the world’s citizenry—should not be instituted without public acceptance and accountability. And in an increasingly globally interconnected world, the legitimacy of the NSA’s actions cannot be determined solely by the American people. If the NSA is indeed collecting comprehensive data on the lives of millions of innocent foreign nationals, they, too, should have a voice in how they are being treated.
Snowden’s disclosure put an end, in the most dramatic way possible, to the secrecy that was, for him and many others, the central abuse of the program. For that reason, he recently told The Washington Post that he considers his mission accomplished.4 Thanks to Snowden, we can now have the debate that we should have had long ago, and that we will need to continue to have as advances in technology give the government greater power to track at low cost the most intimate details of all of our lives. That is a substantial benefit.
As for costs, disclosing the details of the NSA programs may give terrorists a better chance to evade detection. It’s not clear, however, how much of a cost that really is: terrorists already had to assume that they could be under surveillance. Even under the government’s long publicly acknowledged surveillance power, it could tap the phones and obtain business, phone, and Internet records about persons it suspected of involvement in international terrorism. A terrorist cannot know how much the government suspects about him, and therefore must assume he is being monitored.
Perhaps most important, it remains to be seen whether Snowden’s disclosures were narrowly tailored to abuses. We don’t yet know how many documents he has shared with the media. If in fact he took and disclosed 1.7 million documents, one would be hard-pressed to call his actions narrowly tailored. On the other hand, the various stories that have thus far been published seem to have been carefully circumscribed; they are very different from the Manning-Assange undifferentiated dump.
The New York Times has called on the government to grant Snowden “a plea bargain or some form of clemency” in light of the substantial good his disclosures have done. Rick Ledgett, the NSA official in charge of assessing Snowden’s disclosures, has also suggested a deal in exchange for Snowden returning the remainder of the documents. There is a strong case that many of Snowden’s leaks to date have been justified. Future disclosures, however, may do more harm than good, so it would be in everyone’s interest to reach a resolution that falls well short of the harsh punishment that most intelligence officials have thus far demanded. Snowden has committed serious crimes, but he has also performed a considerable public service.
The question of the legitimacy of leaks is not new, of course. Ellsberg’s disclosure of the Pentagon Papers more than forty years ago prompted similar questions. James Goodale, who as general counsel for The New York Times courageously advised publication of the Pentagon Papers, has recently published a fascinating inside story of the Times’s legal battles against censorship. In a coda, Goodale portrays Manning and WikiLeaks as modern-day manifestations of Ellsberg and the Times, and insists that freedom of the press has as much to fear from Obama as it did from Nixon. Some of Goodale’s parallels are apt, but the differences between the cases are more telling.
First, unlike Nixon, Obama did not attempt to prohibit the publication of any of Snowden’s or Manning’s leaks. The Pentagon Papers case, thanks in part to Goodale’s own arguments before the courts, established an extraordinarily high legal bar for enjoining publication, and that bar holds today. For many of the justices in the Pentagon Papers case, however, that bar applied only to “prior restraints”—requests to prohibit publication altogether—and would not apply to after-the-fact criminal prosecutions of leakers. While the Times was not prosecuted, Ellsberg was, and his case was dismissed not on First Amendment grounds, but on the basis of prosecutorial misconduct.
Second, the digital age has profoundly altered the dynamics and stakes of leaks. Computers make stealing documents much more efficient. Ellsberg had to spend months manually photocopying the Pentagon Papers. Manning used his computer to download over 700,000 documents, and Snowden apparently stole even more. The Internet makes disclosures across national borders much easier. Manning uploaded his documents directly to WikiLeaks’ website, hosted in Sweden, far beyond US reach. Snowden gave access to his documents to journalists in Germany, Brazil, and the US, and they have in turn published them in newspapers throughout the world.
Third, computers and the Internet have at the same time made it easier to identify and prosecute leakers. When someone leaked the fact that the US had placed an agent inside an active al-Qaeda cell in May 2012, an entirely unjustifiable disclosure, the Justice Department spent eight months investigating the old-fashioned way, interviewing over 550 people without success. But when the prosecutors subpoenaed phone records of the Associated Press offices and reporters involved in publishing the story, they promptly identified the leaker, an FBI agent, and obtained a guilty plea.
Free press advocates complain that the Obama administration has brought more prosecutions under the Espionage Act for leaks (seven) than all previous administrations combined (three). But the most telling fact is not that Obama has been more active, but that these numbers are so low, in view of the almost daily leaks of classified information published by the press. The increased prosecutions under Obama more likely reflect the fact that it is much easier to pinpoint the source of a leak than that President Obama cares little for press freedom.
One thing has not changed from the days of the Pentagon Papers. There is still no good systematic way to regulate government secrecy. As a result, secret abuses are an ever-present risk—as are leakers themselves. But precisely for that reason, leakers perform a critical, if troubled, function in deterring secrecy’s misuse. Executive officials must act with the knowledge that even their most secret conduct may someday be made public. President Obama’s expert panel recommended a “front-page rule,” by which the government would undertake in secret only those programs that it could defend if they appeared on the front pages of the nation’s newspapers. They may well have no choice in the matter. If a low-level enlisted man and a private contractor can steal and disclose millions of secrets, no government official can be confident that he will be able to shield his actions from public scrutiny. And while irresponsible disclosures unquestionably undermine national security, responsible leaks are an important check on secrecy’s abuse.
Snowden and Manning are only the most recent and dramatic examples. Virtually all of the most disturbing and illegal actions of the United States in its “war on terror” were authorized and carried out in secret, and only came to public attention because of leaks. Those actions included torture and cruel treatment of detainees, rendition to torture, the CIA’s “black sites,” and the NSA’s warrantless wiretapping. All of these programs were curtailed in significant part because of public pressure prompted by their disclosure. And in most instances, the leakers have not been identified or prosecuted.
In the end, the leaker puts both himself and society in a difficult position. By disclosing secrets, he may well burn his career, lose his liberty, and alter his life forever. As Snowden has said, he could have simply gone on living in Hawaii, enjoying a handsome salary in an island paradise. Instead, with considerable courage, he chose to act on his conscience, leave his country, and become an international fugitive with a future that is at best uncertain. Manning, who acted on similar motives but with less sophistication and possibly less justification, is serving a thirty-five-year sentence. Assange, who devoted himself and his website to promoting accountability through transparency, remains isolated and confined in a foreign embassy, unable to walk the streets of London (albeit, at least for the moment, for fear of facing charges of sex crimes, not prosecution for leaks).
And while we as members of the public have learned from each of these men about what our government has done behind closed doors in our name, they have also taken it upon themselves to reveal hundreds of thousands of secret documents, only some of which may have been justifiably disclosed. No one elected Snowden, Manning, or Assange to act as our conscience. But if they didn’t so act, who would?
4 See Barton Gellman, “Edward Snowden, After Months of NSA Revelations, Says His Mission’s Accomplished,” The Washington Post, December 23, 2013. ↩
See Barton Gellman, “Edward Snowden, After Months of NSA Revelations, Says His Mission’s Accomplished,” The Washington Post, December 23, 2013. ↩