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The messy but necessary leakocracy

I suspect many of us reacted with some glee at the initial tale of the big Wikileaks document dump concerning the Afghan war. I suspect, though, that few continued to feel unmixed glee at hearing reasonable-sounding claims that the revelation of the documents might cost lives, for instance among the U.S. network of Afghan informants, now identified to the Taliban.

It’s a familiar dance of ambivalence. We all like seeing government cut down to size. But we also want government to remain strong enough to do whatever it is we happen to like seeing government do.

So it balances out. Except for true-blue anarchists, most of us want government to have some secrets. We understand that military and intelligence organizations whose doings were an open book would not be able to function. We don’t usually want our military plans to be freely known, nor the names of our secret agents.

On the other hand, these are our secrets. We the people established this government, and we feel entitled to exact accountability from it. We want it understood that the government makes and keeps these secrets as a trustee. Like every trustee, it has received what it administers for definite purposes. Not all uses are legitimate.

And therein lies the problem. Year after year, administration after administration, secrecy is abused to cover up policy choices that could not have been made publicly, because the government knew the public would probably not agree to them, like, to choose two known examples from the Bush administration, illegal wiretaps and torture. To choose a likely example from the Obama administration, drone assassinations that kill lots of innocent civilians. Often, secrecy is used to evade accountability for lies or for corruption.

And it would be easier if the trustees of the trustees — for instance, in military and intelligence spheres, the chairs and ranking members of the Congressional intelligence and armed services committees (sometimes augmented by their four counterparts across the aisle) — could be trusted to talk intelligently if tactfully to the public when the keepers of the secrets they oversee are covering up something wrong.

But don’t hold your breath.

The aforementioned torture program was divulged to those purported legislative overseers, but they could not speak publicly without fear of prosecution, and they could not even talk to other members of Congress to urge legislative counteraction. As a result, Congress was not informed, and the “Gang of Four/Eight” served of no real use to America.

Enter the leakers and the press and blogger community who disseminate what the leakers share. Their role is not institutionalized, and there is little or no quality control on what leaked information they divulge, save what they themselves provide. As a result, things that should stay secret often become public, but things that need to made public, like the torture and the wiretaps, often are publicized as well.

Governments hate this, although with a caveat: surreptitious official leaks designed to influence public opinion and embarrass one’s political adversaries are every bit as common as unofficial ones designed to subvert secrecy. The unmasking of Valerie Plame was a prime example, but it goes on all the time.
That caveat aside, though, it seems that of late governmental hatred of the leakocracy, to coin a phrase, has grown. Partly that’s because the power of leakers has grown.

Back in 1971 Daniel Ellsberg had to put in six weeks of hard work to copy the Pentagon Papers. The tens of thousands of Afghan War documents Wikileaks recently made public were probably maintained in portable format in the first place and then pirated on a peripheral drive. Loading all of them could take less than an hour.

This was, of course, a drop in the bucket; the recent Washington Post series on the size of America’s secret government gives some idea of the sheer volume of secrets out there. The font of unspilled secrets is not about to run dry. But computers have given the leakers a wider reach and the ability to move faster.

Balancing act
Still, there is now a new concerted effort by federal prosecutors to force journalists to divulge leakers’ names. The jailing of Judith Miller for refusing to divulge her sources regarding Plame, and the near-jailing of Mark FainaruWada and Lance Williams of the San Francisco Chronicle, who reported on grand jury testimony in the BALCO athlete-doping scandal, are ominous. Because of the failure of institutional overseers, the leakocracy serves as a valuable if not vital safety valve in our society.

The game has always contained a delicate if unspoken balancing act: everyone accepts that leakers can be prosecuted or at least sued if caught, but when they speak to the press they are in a kind of sanctuary. There is no national press shield law; the sanctuary mostly exists by virtue of prosecutorial self-restraint. Hence if leakers are caught, it’s not because the journalists turned them in.

This balance has made possible a much better informed public debate on security matters.

An example of that value and the threat to it: the threats to prosecute James Risen of the New York Times, apparently for his refusal to identify to investigators the sources of the leaks evident in his invaluable book State of War (2006), which this column has cited. That book is a searing indictment of CIA and NSA ineptness in a variety of contexts (vouching for WMD they knew didn’t exist, sending nuclear secrets to the Iranians, betraying the names of our entire network of Iranian informants, and engaging in warrantless NSA wiretapping). It was a fine and responsible piece of journalism. It was also a huge embarrassment to the government.

For protecting his book’s sources from prosecutors interested in leaks about the Iran material, it appears likely Risen is headed for prison — even though no one denies the accuracy of any of Risen’s information, and there were no evident compromises of ongoing national security in the book.

There was an argument to be made that Risen damaged national security by being one of the Times team that had broken the NSA surveillance story in 2005. Bush called that “a shameful act,” if you recall. But as I argued at the time, that disclosure was justified by the wound the NSA surveillance program inflicted on our Constitutional culture, disinfectable only by sunlight — and in any case the State of War Iran material was entirely separate. No fair punishing Risen indirectly.

What may happen to James Risen can dampen the marketplace for leaks a bit, but cannot quell it. Effective independent oversight of the secret-keepers would address the root of the problem, but we don’t have that and are unlikely to get it. Failing that, leaks are inevitable, and, on balance, a good thing.

If we ever actually get oversight of our institutions that reliably restrains them from doing unconstitutional and or improper things, then and only then could plugging leaks by hounding journalists and bloggers for their sources begin to make sense. Until then, chilling their activities this way will predictably encourage abuses, by government, by business, even, as we’ve seen, by big-time sports, more than it protects useful secrecy.

Jack L.B. Gohn is a partner with Gohn, Hankey & Stichel LLP and a former member of The Daily Record’s Editorial Advisory Board. The views expressed here are solely his own. See a longer version, with links to his authorities, at