Good leaks, bad leaks?

Did Karl Rove reveal Valerie Plame's identity as a covert CIA agent to Matthew Cooper of Time magazine? Did fired CIA official Mary O. McCarthy leak information about covert agency programs to the Washington Post (a charge she denies)?

Is Rove a villain? McCarthy a heroine? Or is it the other way around?

If Rove did "out" Plame, was it because he was trying to set the record straight about former Ambassador Joseph Wilson's trip to Niger to explore reports of Iraqi attempts to acquire uranium for its nuclear program? Or was Rove trying to retaliate, angry over Wilson's claim that the Bush Adminstration ignored his belief that Iraq had not sought yellowcake uranium?

If McCarthy did talk to the Post about covert CIA prisons, was it because she felt these anti-terrorism efforts had crossed the line into illegality? Was Senator John Kerry right in arguing that: "If you're leaking to tell the truth, Americans are going to look at that, at least mitigate or think about what are the consequences that you … put on that person."? Or was McCarthy, a contributor to Kerry's presidential campaign, simply acting out of partisan spite, looking to damage the Republican Administration even if the price was revealing national security secrets?

Scott Shane's Sunday New York Times article "There Are Leaks, And Then There Are Leaks" highlights the long American tradition of intelligence leaks (dating back to Thomas Paine in 1779) and notes our ambivalence about them.

There's more than enough hypocrisy to go around when the topic is Washington leaks. There's little straight talk on this subject: not from the White House, the media, or from prosecutors (who are not above selective leaking themselves). Democrats have now questioned whether a double standard exists, where the White House has provided reporters with secretly declassified information for political purposes just as the CIA moves to fire or prosecute leakers.

Why the hypocrisy? Because information represents power in Washington; leaks are just another way of wielding power, whether by individuals or institutions. The problem is that in such a culture all information–whether classified secret or not–is used in this highly partisan political game.

The motives of leakers are often mixed; they may leak for personal or political advantage, to gain revenge, to shift blame onto others, to block reform or change. Sometimes leakers disclose to reveal injustice or from a sense of patriotism. Sometimes their motives border on the pathological–a childish delight at revealing forbidden knowledge, the secrets of "adults."

When leaking is done by the relatively powerless, or outsiders, by Watergate's Deep Throat or by whoever tipped the Washington Post's Dana Priest on the covert CIA prisons, it is often seen in more positive terms by the media and some of the public. Whistle-blowers are viewed as "serving a higher purpose," striving to insure the public good.

It isn't that simple, however, as former CIA general counsel Anthony A. Lapham told the Times. Lapham has welcomed the public debate over CIA and NSA practices in fighting terrorism, and concedes that leaks have provoked the debate, one which will take center stage when the Senate Intelligence Committee reviews the nomination of John Rizzo as the CIA new general counsel. Lapham nonetheless questions the "higher purpose" argument:

"There's a premise that it's O.K. for someone to leak because they're serving a higher purpose, a higher loyalty," he said. "Well, the next thing you know, you have a whole building full of people with a higher loyalty, each to a different principle. And pretty soon you don't have a functioning intelligence agency."

Lapham's argument has validity. What intelligence agency can be effective if it can not guard its own secrets? CIA head Porter Goss told Time magazine last year: "virtually every day I can pick up a paper and find somebody who is an anonymous source. That is willful. And it seems to me there ought to be a penalty for that."

CIA officials point out that everyone who works at the CIA signs a secrecy agreement. Further, there are a number of channels for registering complaints or charges of illegality (including, and up to, alerting members of the Congressional intelligence oversight committees).

Yet this argument is dramatically undercut when senior members of the Administration decide they will practice selective disclosure of sensitive or classified information themselves (provoking the double standard charge). When leaking is practiced by the powerful, it is immediately, and rightfully suspect. It often represents an attempt at "hidden hand" manipulation of public opinion, or a move to undercut or damage critics of the government, or a way to curry favor with selected reporters or columnists.

Bastions of the mainstream media (including New York Times, Washington Post, etc.) can stand charged with some hypocrisy as well. The Times, for example, called for an independent prosecutor to look in the Plame-Libby leaks–since it is illegal to reveal the identity of a covert CIA agent–but recoiled when that investigation targeted the newspaper's own reporter (Judith Miller) who had received that information.

Reporters for the Times and the Post received Pulitizer Prizes for their stories on CIA and NSA covert intelligence programs, with their reportage based on leaks and classified information. I would hazard the guess that numerous federal laws were broken by whoever revealed this information to the newspapers, and yet there has been no call from the Times or Post editorial boards for an independent prosecutor to look into the leaks. (I would argue that it's not the place of newspapers to encourage leak investigations; in the Plame matter, to their discredit, members of the Times editorial board apparently couldn't resist the lure of a probe that might embarrass top Adminstration officials. Victoria Toensing argues in the Wall Street Journal's Opinion Journal that the Times, along with many other papers that called for a special prosecutor in the Plame affair are now reaping the whirlwind. Be careful what you ask for?)

The Bush Administration eagerness to go after reporters when classified information is published is a consequent, and troubling, development. Adam Liptak of the Times explained the new approach, which might include prosecutions under the espionage laws, in Sunday's paper:

Such an approach would signal a thorough revision of the informal rules of engagement that have governed the relationship between the media and the government for many decades.

Leaking in Washington is commonplace and typically entails tolerable risks for government officials and, at worst, the possibility of subpoenas to journalists by prosecutors seeking the identities of sources.

But the Bush administration is putting pressure on the media as never before, and it is operating in a judicial climate that seems increasingly receptive to constraints on journalists.

You can oppose the leaking of government secrets and yet see this as a very dangerous precedent, one which raises questions about the motives of the Bush Administration. Is finding the leaker the idea, or intimidating the reporters receiving the information? It is one thing to prosecute government officials who disclose classified information to the press; it is another thing to try to compel journalists to reveal their sources, or to prosecute reporters through the draconian criminal provisions of the espionage statutes.

Prosecutors have more than enough power to get to the bottom of leaking without dragging reporters into court. There are also important constitutional questions raised when the press is (arguably) seeking to expose wrongdoing by the government; some legal scholars argue the First Amendment protects the right to publish that classified information.

There is always going to be conflict between the government and the Fourth Estate over this question. There may be a need to amend some existing legislation (the 1917 Espionage Act) to make it clear the difference between spying and reporting; a federal shield law protecting reporters' sources would be another positive development. Whether either of these reforms are possible in today's partisan atmosphere is doubtful, and that is not reassuring for anyone concerned about press freedom in the United States.

Copyright © 2006 Jefferson Flanders
All rights reserved

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