Should Government Leaks Always Be Illegal?

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Why you should care

Because leaking information directly to the American public is an age-old tradition. 

OZY’s next TV show, Third Rail With OZY, is launching on PBS this fall! To kick things off, we’re shelving the PC and launching debates. Nothing is off-limits, and we’ll go where most fear to tread. Each Wednesday, we’ll post a provocative question, with a focus on topics that might make it onto the show.

Our question this week: Should government leaks always be illegal? We want to hear from you. Email thirdrail@ozy.com with your thoughts or a personal story, and we might feature your answer next week. Below, Cassandra Burke Robertson, a law professor at Case Western Reserve University, weighs in. She answers the related question, “Are leakers inside the government unpatriotic?”:

The Trump administration has declared war on leakers.

Anthony Scaramucci, during his brief tenure as White House communications director, complained that leakers were “everywhere” in the Trump administration. He called leaking “outrageous” and “unpatriotic.” He was half right: Most observers agree that Trump staffers are leaking at an unprecedented rate. But calling the leakers “unpatriotic”? That’s a harder charge.

Leakers face significant personal risk. If caught, they may lose their job and, depending on the kind of information revealed, may even face criminal charges. Attorney General Jeff Sessions has committed to vigorously prosecute leakers.

So why take the risk? Historically, most employees who leak do so out of a sense of ethical obligation. They see governmental officials taking actions that seem to contradict basic American values. They may suspect that higher-ups are breaking the law. They don’t think that reporting the actions up the chain of command will fix the problem, and they believe that the threat to the country outweighs the personal risk they face from leaking.

Leakers believe that if the American public knew what was going on, people would demand change.

Instead they take the information directly to the public — often by reaching out to the press. Far from being unpatriotic, this type of leak actually reflects the most fundamental of American values: respect for democracy and a belief in public rule. Leakers believe that if the American public knew what was going on, people would demand change. This is the essence of a democracy: Voters with access to information about what the government is doing can shape public policy.

The United States was founded on the respect for a free press and an informed electorate. The First Amendment explicitly protects the freedom of the press and forbids Congress from passing laws that interfere with a free press. And the country’s founders were no strangers to controversial leaks. One such leak — originally revealed by Benjamin Franklin — helped spur the fight for American independence. In 1773, three years before the Declaration of Independence was signed, Franklin leaked private letters written by Massachusetts Governor Thomas Hutchinson.

The letters revealed that Hutchinson had advised the British Crown to crack down on American colonists, arguing that residents of the American colonies should not be allowed the same liberties afforded to English citizens. Franklin gave copies of the letters to specific individuals and asked for them not to be shared widely or published. Nonetheless, the letters were ultimately delivered to a Boston newspaper and republished widely. Colonists were outraged at the content of the letters and angry about the potential restrictions on their liberty. British officials were outraged by the leak, and demanded an inquiry into how the letters had gone public.

Franklin admitted to his role in sharing the letters, and was accused of dishonor and reprimanded by the British Parliament. He was fired from his job as postmaster general in 1774 — though he got the job title back just over a year later, when the Second Continental Congress established the United States Post Office.

Over the following two and a half centuries, many other government leaks shaped the public discussion of important public policy matters. Information about the conduct of the war in Vietnam, President Nixon’s attempt to bug the Democratic National Committee headquarters, the questionable justification for the war in Iraq, the use of offshore tax shelters by public officials and others and the broad surveillance of online activity all came to light through government leaks. These revelations all led to robust public debate about the legal and policy implications of the government’s actions. Such debate is essential to a functioning democracy.

Even a patriotically motivated leak, however, can cause harm. There are some times, after all, when the government truly needs to operate in secrecy, when sensitive national security matters put lives at risk and when leaks could jeopardize national intelligence efforts. But governmental secrecy can also be abused to cover up wrongdoing and to avoid public scrutiny of key policy choices.

It isn’t always easy for an individual employee to tell the difference. The best leak prevention strategy is to offer a confidential outlet to potential whistleblowers — one that takes their concerns seriously and engages in a timely investigation of potential misconduct.

When such an outlet is unavailable, leakers will likely continue to follow the American tradition that is as old as the country itself: Leak information directly to the American public.

OZYOpinion

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