Austin Carson is a postdoctoral research fellow at the Niehaus Center at Princeton University.
The aftermath of WikiLeaks raises a very difficult question. What should government do after leaks? Can government officials acknowledge the facts that leaks expose? Or must they pretend that the information remains secret? New government guidelines appear to explicitly force officials to play “let’s pretend.” Late last week, Steven Aftergood and Charlie Savage of the New York Times reported on new rules from the Office of the Director of National Intelligence (ODNI). The guidelines explicitly forbid government officials with classified access from publicly citing information that has been leaked or made public through anonymous sources. Intelligence and transparency analysts were alarmed by this and other apparent changes. Even after ODNI sought to clarify the guidelines, a follow-up story confirms an explicit ban on citing leaked information, which did not exist in prior versions.
Banning officials from using leaked-but-still-classified information targets post-leak debates rather than the leaks themselves. It’s a back-up plan for what to do when leak prevention fails. If you can’t stop leaks in the first place, then at least you can stop officials from citing the leak’s content. Doing so can prevent leaked information from being officially corroborated, preserve an often wafer-thin veneer of official denial, and discourage subsequent public debate.
But targeting debates raises tough questions that go far beyond arguments for or against leaks in the first place. First of all, does blocking or vetting current, and especially former officials, who want to use information that is de facto public, violate their constitutional free speech protections?
Second, even if constitutional freedoms aren’t involved, do we really want to stifle post-leak public debates? Leaks drop policy information into an awkward middle ground between secrecy and publicity, which may actually be a good thing. After a leak, information becomes a kind of open secret. This can in turn lead to a nascent kind of public, democratic deliberation. Legislators, opinion leaders and former government officials can openly argue over the value and risks of specific policies, as when disclosures prompted debates about U.S. torture practices and drone strikes. Such debates can clarify the depth of potential public concern to those inside government. It can also build support within government for modest course corrections rather than draconian fixes. Nascent deliberation after leaks can also help address problems with over-classification by encouraging formal declassification of program components that are actually safe to make public.
Avner Cohen, a professor at the Monterey Institute of International Studies, tells a cautionary tale about what happens when people eliminate such debates. He analyzes Israel’s long-running experiment with keeping a leaky secret about its nuclear weapons out of public discussion. Cohen argues that Israel’s well-known but officially unacknowledged nuclear capability has a serious democratic downside. Because the program remains officially unacknowledged, government officials have to use ritualistic denials and circumlocutions rather than contribute frankly and honestly to debates. This bolsters an informal political taboo on talk of Israel’s arsenal and degrades the quality of any remaining discussion. Israel’s attempt to put the genie of public discussion back in the bottle therefore has important social and political costs.
Israel’s decades-long denials have important lessons for the U.S. ODNI’s rules and the larger effort by the Obama administration to contain damage from the WikiLeaks and Snowden disclosures are understandable. Yet some responses carry serious tradeoffs and deserve careful scrutiny. Preventing officials from sourcing such leaked information, and scrutinizing their public comments in other ways, may well make democratically healthy and pragmatically useful responses to future leaks less likely.