It’s sometimes okay for democracies to pretend that leaks do not happen

May 14, 2014

Former National Security Agency official Thomas Drake speaks at the National Press Club in Washington. Drake, who admitted to giving inside information to The Baltimore Sun about a major government electronic espionage program, was given a year’s probation and community service in July 2011. (AP Photo/Jacquelyn Martin, File)

In recent days a storm has been brewing over the Office of Director of National Intelligence’s (ODNI’s) update to the regulations (more formally, the ‘pre-publication review standard’) its employees must follow prior to disclosing intelligence-related information.

Critics argue that the updated pre-publication review standard will “impoverish” public discourse on intelligence policy in at least two ways.

The first criticism comes from the redoubtable Steven Aftergood, who notes that the updated rules instruct that pre-publication review procedures “must” be followed. This inflexible language will “inhibit informal contacts” between intelligence officials and the public, he argues, because fear of administrative and civil penalties will lead officials to shy away from unpredictable and unplanned media interactions.

This fear may be overstated though, for two reasons.

First, the public discourse on intelligence policy is often driven by what David Pozen has termed ‘pleaks’ or leaks from officials seeking to further policy. Since these disclosures are ‘authorized’ (or ‘semi-authorized’), they are not likely to be affected by the new regulation.

Second, some of the most useful contributions to public discourse on intelligence policy come from unauthorized disclosures or leaks. Presumably officials who are willing to violate criminal law in order to leak classified information will not be daunted by internal regulations.

A second criticism comes from Austin Carson, who notes that the ODNI’s updated rules declare that intelligence officials should not cite leaked information. This particular rule “hurts democratic debate,” he argues, because it makes it harder for officials to engage in public debate “over the value and risks of specific policies” that have been leaked.

There are reasons to question this conclusion.

First, the new rule does not change the fact that intelligence officials can use counter-leaks to shape and respond to public debate that has been initiated by leaks. This outcome may appear less wholesome than open public debate, but officials can sometimes say more when granted anonymity.

Second, public debates on leaked materials can often put officials in the position of a boxer with one hand tied behind his back, as they cannot fully share what they know. In such cases, engaging in public discussion can be counter productive as critics may come away wrongly convinced that they have the stronger argument.

Third, public deliberation is an important value, but it is not the only value a democracy holds dear. Safety is another. We should not, therefore, discount the ODNI’s warning that the citation of unauthorized disclosures “can confirm the validity of an unauthorized disclosure and cause further harm to national security.”

Finally, note that in some recent cases, e.g. Hepting v. AT & T Corp and ACLU v. NSA, judges have employed public officials’ discussion of leaked intelligence programs as a justification to turn down state secrets privilege claims. As a result, it becomes possible to argue that in some instances democracy may be better served when officials refrain from discussing leaks, as this preserves the Justice Department’s legal options.

These counterarguments point to the need for a broader rethinking of state secrecy. As I argue in my book “Secrets and Leaks,” there is an unfortunate tendency in contemporary political science to equate democracy with transparency, and to therefore view secrecy as a blanket threat to democracy. This view fails to recognize that democracies may want and need public officials to exercise secrecy on their behalf. This is not to say that secrecy is unproblematic. There is certainly the danger that officials may abuse secrecy. But to respond to this problem by demanding transparency is unsatisfactory, since the public remains at the mercy of whoever has the authority to determine what should or should not be made public. Nor should we succumb to the vague utopian fantasies of an Edward Snowden who demands complete transparency — a stance that endangers democracy more than the secrecy it undermines. Arguably, the way forward is to become more discerning about the officials, representatives, and reporters that traffic in classified information, and more astute in how we process the snippets of information that become public (for example see this excellent piece by Ryan Goodman and Sarah Knuckey).

My arguments should not be interpreted as an endorsement of the updated ODNI pre-publication review standard. I have only argued that it is not obvious that the updated standard undermines democratic deliberation. This does not mean it is wise. The current standard is overbroad because, as Aftergood notes, it does not distinguish between the release of classified and unclassified information. It is also unwise because, as Jack Goldsmith observes, it is “practically unenforceable.” For these reasons there is merit in Aftergood’s statement that

A superior approach would be to simply say that all ODNI employees are obliged to fulfill the terms of the non-disclosure agreements that they signed, and to leave it at that.

Rahul Sagar is Associate Professor of Political Science at Yale-NUS. His Twitter account is @rahulsagar. He is the author of Secrets and Leaks: The Dilemma of State Secrecy.

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