The Secret Sharers: Leaking and Whistle-Blowing in the Trump Era

Peter Feaver. Foreign Affairs. Volume 97, Issue 6, November/December 2018.

Is leaking sensitive national security information ever justified? Yes, under rare and exacting circumstances. Does the kind of leaking that has become the new normal during the Trump administration meet those conditions? Almost certainly not, even if it hasn’t imperiled the republic-at least so far.

Sorting through the complex moral calculus of leaking is precisely in Michael Walzer’s wheelhouse, and there is much to admire about his measured assessment (“Just and Unjust Leaks,” March/April 2018). Walzer is right not to blindly celebrate leaking as some sort of First Amendment sacrament. Yet he does not go far enough in parsing the different types of leaks.

Walzer distinguishes between a “leaker,” who “anonymously reveals information that might embarrass officials or open up the government’s internal workings to unwanted public scrutiny,” and a “whistleblower,” who “reveals what she believes to be immoral or illegal official conduct to her bureaucratic superiors or to the public.” From the point of view of national security professionals, however, there is a world of difference between whistle-blowing to one’s bureaucratic superiors and whistle-blowing to the public. The former is permitted and even encouraged in a healthy bureaucracy. Whistle-blowing to the public, on the other hand, is a punishable violation of professional standards or even criminal law. It should not be differentiated from leaking.

To be sure, officially sanctioned whistle-blowing still entails risks. If one blows the whistle on legitimate behavior, the whistleblower could lose credibility or even her job. And whistle-blowing might not accomplish anything if the chain of command itself is corrupt. Appealing through proper channels is no guarantee that the outcome will be optimal, but it is preferable to the alternative, which sets up the individual as a law unto herself.

A second problem with Walzer’s typology is that his definition of leaking excludes many of the day-to-day exchanges that take place between the government and the media. For Walzer, an anonymous quote does not count as a leak unless it was intended to embarrass officials or engender unwanted public scrutiny. But most interactions belong to another category, which could be called “benign leaking.” Communications offices in the government depend on anonymous or unattributed sourcing to provide context and detail about their initiatives in a way that keeps the focus on the project rather than the individuals involved. Briefing journalists is part of any well-executed policy rollout. In some cases, governments will also authorize leaks to gauge an idea’s political viability without committing the administration’s prestige and credibility to the project.

Perhaps these sanctioned forms of contact with the media should not be considered leaking at all. Yet in terms of sheer volume, benign leaking accounts for more of the anonymous quotes in the media than malign leaking, regardless of the administration. Most of the time, benign leaking serves a noble First Amendment purpose: fostering a better-informed, more balanced media marketplace. Still, it can be overdone. Over the past several decades, there has been a marked expansion of the practice. In previous eras, administrations relied on clubby relationships with well-sourced reporters to shape public narratives; today, they use anonymous quotes. This tactic has metastasized into an overused and possibly self-defeating communications strategy. The unintended consequence has been an increase in leaking of all sorts. And although every modern president has occasionally resorted to unattributed quotes to provide context or float an idea, reporters claim that Donald Trump does this more than any of his predecessors. Likewise, although all administrations simultaneously leak and criticize leakers, this kind of hypocrisy has become particularly acute under Trump.

It is the other kind of leaking, malign leaking, that drives the most sensationalistic stories and all too often wins those involved fame and fortune, not to mention coveted journalism awards. Malign leaking is the focus of Walzer’s attention, and he claims that it can serve the broader public good. It can, but this probably happens less often than people think. And at their current level, unauthorized leaks are creating a climate that undermines effective and accountable governance.

Malign leaking is the moral equivalent of disobeying an order. Is that ever the right thing to do? Consider the U.S. military: those who serve are supposed to obey all legal orders but disobey all illegal ones. Some officers believe that this means they have an obligation to refuse orders that are unethical or unwise, but the Uniform Code of Military Justice provides no such exception. This does not mean that members of the military are powerless; they can express concerns within their chain of command or the regular civil-military advisory process. In fact, they have a professional obligation to speak up, but not to speak out. When those in the military circumvent the internal process in order to generate political pressure on their civilian bosses, they undermine the norm of civilian control.

Those serving in the military should assume that orders coming down through the regular chain of command are legal. Indeed, commanders have access to lawyers whose job it is to make sure that this is the case. An individual who decides to exercise her own judgment and refuse an order on the grounds of illegality should expect to be arrested and face a court-martial. If she is right, the system should vindicate her. If not, she should be punished.

The same logic applies to malign leaking. Malign leaking is fundamentally antidemocratic because the individual leaker places her own judgment over the authority of the system established by the Constitution. Walzer leans heavily on the counterargument that leaking provides a vital public service by rescuing the country from disastrous policies that leaders are able to impose only by hiding things. It is certainly possible to conjure up hypothetical that fit this tidy morality tale: for example, a mentally unhinged president seeking to launch an unjustified nuclear strike. Clearly, the crime of leaking is preferable to a needless nuclear war, but these hypothetical tend to collapse under closer scrutiny. For starters, the system already provides avenues to push back within the chain of command. Lower-ranking officials do not need to rely on leaks to save the globe. Moreover, actual cases are rarely so tidy. As Walzer himself observes, even those who believe that the former National Security Agency contractor Edward Snowden was justified in leaking information about controversial surveillance programs must grapple with the inconvenient truth that he leaked much more than was needed to prompt a public debate about the civil liberties of U.S. citizens-including, as Walzer notes, “information about U.S. intelligence operations against nonAmerican targets in mainland China.” Snowden also leaked information about programs that were authorized by established executive-branch protocols and had been properly briefed to congressional overseers. Snowden does not deserve the moral protection of whistleblower status. If he disagrees, he should come back and face the legal system. If he has truly done a public service, the courts can take that into consideration.

The Snowden case is a reminder that the U.S. Constitution already provides a legitimate way to prevent abuses of power and official misconduct: rigorous congressional oversight. Congress has the capacity to compel testimony from the executive branch. Revealing information to an open session of Congress- or discussing classified information in a closed hearing-does not count as malign leaking. Most leaks to the media bypass this kind of oversight: they catalyze investigations rather than result from them.

Some of the most celebrated leaks in the Trump era fit this pattern. When the contents of December 2016 conversations between Sergey Kislyak, the Russian ambassador to the United States, and Michael Flynn, whom Trump had tapped to serve as national security adviser, were leaked to The Washington Post, they set in motion a media frenzy that eventually led to extensive congressional investigations into the Trump campaign’s possible collusion with Russia. Similarly, former FBI Director James Comey admitted that he asked a friend to leak the contents of his confidential memos in order to trigger a special counsel investigation. It would have been better if that information had initially gone to the relevant congressional committees, which are already empowered to explore such issues. (And better still if Trump had authorized an independent commission to fully investigate the entire affair.)

The same goes for the New York Times op-ed published anonymously in September and purportedly written by a senior Trump administration official who claimed to be part of a “quiet resistance” to Trump, whom the author described as amoral, ill informed, impetuous, and petty. Writing the op-ed was legal but probably counterproductive. It did nothing to empower constitutional checks and balances, and it has likely driven Trump to do more of the very things that the author complained about. It would have been better for the official to resign and then testify before Congress.

Of course, congressional oversight leaves much to be desired. And Congress itself is generally considered to be a fountain of malign leaks. Still, congressional investigations into the Iraq war; the assault on U.S. facilities in Benghazi, Libya; and now Russian interference in the U.S. election show that this oversight can bring information into the public eye that the administration might prefer to keep private.

Walzer’s argument that the ends justify the means treats leaking like speeding. But if you need to rush someone to the hospital, you should call an ambulance before deciding to disregard the speed limit yourself. If that is not feasible, then speed, but be prepared to face the consequences. Yet the vast majority of speeding does not take place under such extreme circumstances. Likewise, the vast majority of malign leaking advances the selfish interests of the leaker rather than the public interest. Reckless leaking may be irresistible to watch, but it will likely end in a crash. It is possible to overreact on the other side, as well. Ruthlessly tracking down every malign leaker would be no wiser than an analogous effort to catch every speeder. This means that there will always be leeway for the rare instances when a leaker really does need to do the dirty deed.

The prevalence of leaking today is likely a symptom, not a disease. The underlying cause has many components, including a government that does not value transparency, a national security establishment that overclassifies information, a hyperpartisan and dysfunctional oversight system, and a media marketplace that is dominated by shrill advocacy. Until those factors are addressed, the leaking, and the complaints about leaking, will continue.