The Corner

A Code of Conduct for Handling Leaks

Kevin puts his finger on a problem that is going to get a lot worse in the years ahead if it doesn’t get fixed fast: namely, the president’s ability to leak for political purposes and then prosecute leaks for political purposes. Journalists have accused the Obama administration of prosecuting more leaks than all other administrations put together. Part of the problem is that the administration leaks more than all others put together — but there is a far larger problem: The whole system of classified information is fracturing. 

The ease with which large amounts of data may be stored and transmitted, combined with a systematic overuse of classification authority and the large number of people who can access it, is a recipe for disasters such as the Wikileaks diplomatic-cables dump by Bradley Manning and the recent NSA leak by Edward Snowden. These leakers are guilty of serious crimes and must be given the stiffest penalties, otherwise other potential leakers will only feel emboldened. But in retrospect, it really must be admitted that providing naive young men with such vital national secrets was rather like arming chimpanzees with cruise missiles. Add to that the near-carte blanche we give journalists to solicit the commission of serious leaks (to make no mention of aiding and abetting them), and what you have is a system in which almost every part needs urgent fixing.

The political manipulation of the power to leak — and to prosecute leakers — is part and parcel of the larger problem, and it can’t get fixed on its own. But when the time comes to fix the entire system (and that time can’t be too far off now), a possible solution is congressional scrutiny. Ultimately, the administration must have the authority to leak classified information for the purposes that it sees fit. No rule could effectively distinguish between leaks that serve a purely political purpose and those that serve a proper strategic purpose in addition to a political one. But the American people, who are the ultimate owners of all those state secrets, must have confidence that improper leaks are being prosecuted. The solution might be a “buddy system” of the political branches. Perhaps the administration should be required to provide Congress with periodic classified briefings on all known leaks, explaining which were internally authorized, and why, and which were not, and updating Congress on the government’s prosecution of the latter. Prosecutorial discretion should be severely limited; investigations of unauthorized leaks should be automatic and given the highest law enforcement priority.

For this to work, the rest of the system will need fixing, too. The government must greatly restrict the amount of information that is classified, the number of people who have access to it, and the means by which it is stored and transmitted. Potential leakers should know that they will be caught, prosecuted, and severely punished; and journalists who knowingly aid and abet them should be prosecuted, as with any case of aiding and abetting. Leaking should carry the same stigma as treason, with narrow protection for whistleblowers who expose actual illegality. 

Respect for the government’s ability to protect state secrets must be restored, and it should be obvious by now that a piecemeal fix won’t work.

Mario Loyola — Contributing editor Mario Loyola is senior fellow and Director of the Center for Competitive Federalism at the Wisconsin Institute for Law and Liberty. He began his career in corporate ...

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