Chapter 4

Should the Law Condone Unauthorized Disclosures?

Fire Alarms and the Problem of Legitimacy

Now that we have seen the complications that arise when we try to invigorate legislative oversight and judicial review, let us turn our attention to the second part of the dilemma outlined in chapter 1. As noted there, the features that make the unauthorized disclosure of classified information an effective and credible regulatory mechanism are the very same ones that raise concerns about its lawfulness and legitimacy. Because this regulatory mechanism disperses regulatory power (in that any official who is aware of troubling secrets can sound the alarm), it is less prone to failure than a committee or bench (where the concentration of regulatory power invites capture). At the same time, because such disclosures override the classification decisions made by officials responsible for national security, our reliance on them seems to conflict with our commitment to the rule of law and the norms of democracy. Should we, then, revise the laws to condone unauthorized disclosures?

What Does the Law Say?

It is widely believed that the First Amendment protects the officials, reporters, and publishers responsible for the transmission and publication of unauthorized disclosures of classified information. This belief is not entirely without foundation, as can be seen in the Pentagon Papers case, where the Supreme Court refused to restrain the New York Times from publishing a secret history of the Vietnam War. The reality, though, is that those who disclose classified information are subject to administrative, civil, and criminal action. Therefore, in order to remove any misconceptions, let me start by clarifying what the law actually says about unauthorized disclosures.

At present unauthorized disclosures are prohibited via a mosaic of contracts and statutes. The most immediate of these controls comes in the form of a nondisclosure agreement that officials are required to sign before they are granted access to classified information. This agreement obliges signatories to refrain from disclosing classified information to unauthorized persons and serves as an acknowledgment that doing so constitutes grounds for dismissal.1 The constitutionality of such “secrecy agreements” was challenged in National Federation of Federal Employees v. United States (1988), where it was argued that such agreements constitute an unacceptable condition on employment because they restrict the First Amendment rights of government employees. However, the D.C. District Court observed that it was widely accepted that “First Amendment protections may be tempered by governmental interests,” and that the government has an “undeniably substantial” interest in safeguarding national security information.² Hence, even though “all governmental employees enjoy First Amendment rights,” Judge Oliver Gasch ruled, “those with access to classified information must accept a different application of free speech protection.”³

A second contractual prohibition against the unauthorized disclosure of classified information comes in the form of a prepublication review agreement that officials must sign before they are granted access to highly classified information. The constitutionality of such prepublication review agreements is also well established.⁴ A central precedent here is United States v. Marchetti (1972), which involved an injunction against the publication of a book claiming to expose the CIA’s involvement in unlawful activities.⁵ In his appeal to the Fourth Circuit, the author, Victor Marchetti, a former employee of the CIA, argued that the CIA’s prepublication review agreement amounted to prior restraint and therefore should be struck down. However, the Fourth Circuit concluded otherwise: it held that the need for secrecy in the conduct of foreign affairs “lends justification to a system of prior restraint against disclosure by employees and former employees of classified information obtained during the course of employment.”⁶ Indeed, the need for confidentiality in this arena was so pressing, the Fourth Circuit observed, that “the law would probably imply a secrecy agreement had there been no formally expressed agreement.”⁷

The ruling in Marchetti was subsequently affirmed in Snepp v. United States (1980). This case involved Frank Snepp, a former CIA employee, who had been stationed in Saigon toward the end of the Vietnam War. Following his return to the United States, Snepp published a book describing the harm that the CIA’s “treacherous withdrawal” had caused the South Vietnamese.⁸ The government filed suit, asking that Snepp be held in breach of the prepublication review requirement and forced to turn over profits from the publication. The case eventually reached the Supreme Court, which rejected Snepp’s claim that the prepublication review requirement violated the First Amendment. The agreement, the court observed, constitutes a “reasonable means” for safeguarding the government’s “compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.”9

In addition to the administrative and civil sanctions outlined above, officials who make unauthorized disclosures can be charged under two kinds of criminal statutes. There are statutes prohibiting the unauthorized disclosure of specific categories of classified information, including communications intelligence, the identities of covert agents, and nuclear weapons data.¹⁰ Then there are statutes such as the antitheft statute and the Espionage Act that have been employed against unauthorized disclosures more generally.¹¹ The latter set of statutes were first employed in United States v. Russo (1973), which addressed the activities of Daniel Ellsberg and Anthony Russo, the protagonists in the Pentagon Papers case. The applicability of these statutes was left undetermined though, as Russo was dismissed on grounds of prosecutorial misconduct. These statutes were subsequently employed in United States v. Morison (1988), a case involving an employee of the navy, Samuel Morison, who delivered to Jane’s Defence Weekly documents he had pilfered from the desk of a fellow employee. But this precedent has limited value because even though Morison claimed to have sent the documents to Jane’s “for public dissemination and information,” the evidence indicates that his actual motive was to convince Jane’s to employ him.¹² So even though the Fourth Circuit rejected Morison’s claim that his prosecution under the Espionage Act violated the First Amendment, it is not clear that it would have responded in the same way had Morison actually disclosed information that revealed unlawful activity.¹³

So far I have outlined the laws that prohibit the unauthorized disclosure of classified information by officials. What about others in the transmission chain? As far as reporters are concerned, their role in the transmission of unauthorized disclosures exposes them to two kinds of legal action: they may face criminal charges, and they may be compelled to reveal the identities of their sources. At present, it is unclear whether there is in fact a statutory basis for prosecuting reporters themselves. Conceivably, reporters could be prosecuted for “conspiring” with officials to violate the Espionage Act.¹⁴ They could also be prosecuted under the Espionage Act for transmitting “information relating to the national defense” to “any person not entitled to receive it” when they have “reason to believe” that such information “could be used to the injury of the United States.”15 However, no reporter has ever been prosecuted for either soliciting or transmitting classified information—an outcome due in no small part to the convoluted language of the Espionage Act. As a result, it remains unclear whether the prosecution of a reporter under the Espionage Act would fall foul of the First Amendment.¹⁶

It is reasonably clear, though, that reporters can lawfully be compelled to reveal the identities of those who have disclosed classified information to them, especially when such information is vital to the prosecution’s case. The governing precedent here is Branzburg v. Hayes (1972), a case in which reporters faced contempt charges because they refused to disclose to grand juries information obtained from or related to their confidential sources. Faced with the question of whether the First Amendment affords reporters a privilege against testifying before grand juries, the Supreme Court concluded that “we cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.”¹⁷

Branzburg implies that news reporters subpoenaed in grand jury investigations into criminal leaks of classified information can maintain the confidentiality of their sources only if they are willing to brave punishment for contempt of court. It is hardly surprising, then, that First Amendment activists have repeatedly called for a federal “shield law” that would accord reporters a privilege against compelled disclosure. However, despite some sixty attempts over the past century, Congress has yet to enact such a law.¹⁸ The absence of such a shield law has not been greatly felt, though, because the Justice Department’s internal guidelines caution prosecutors against compelling the disclosure of the identity of a reporter’s sources (an exercise of self-restraint motivated no doubt by the realization that prosecuting reporters is a “messy,” politically inexpedient, exercise).¹⁹ Nonetheless, a recent flurry of cases have underscored that these internal guidelines are not fixed in stone.

The most prominent of these cases arose after news organizations reported that two officials in the White House had disclosed to reporters that Valerie Plame, the wife of Joseph Wilson, a critic of President Bush’s foreign policy, worked for the CIA. As these disclosures potentially violated the Intelligence Identities Protection Act, a special prosecutor, Patrick Fitzgerald, was appointed to investigate the matter. Unfettered by the Justice Department’s usual guidelines, Fitzgerald subpoenaed the reporters contacted by the White House officials in question. When the D.C. District Court held in In re Special Counsel Investigation (2004) that Branzburg required the reporters to obey the subpoenas, two of the reporters, Judith Miller of the New York Times and Matthew Cooper of Time, appealed to the D.C. Circuit.20 The resulting case, In re Grand Jury Subpoena (2005), reiterated the message of Branzburg.²¹ In a unanimous decision, the D.C. Circuit reaffirmed that the First Amendment does not protect reporters from having to testify “before a grand jury or otherwise providing evidence to a grand jury regardless of any confidence promised by the reporter to any source.”²²

Finally, publishers issuing news reports that contain unauthorized disclosures are exposed to two kinds of legal action: their publications may be enjoined, and they may face criminal charges subsequent to publication. The former course of action has rarely been adopted owing to the demanding standard established in Near v. Minnesota (1931), where the court held that prior restraint is allowed “only in exceptional cases,” for example, “the publication of the sailing dates of transports or the number and location of troops.”²³ This standard was first discussed in the national security context in New York Times v. United States (1971), which addressed the legality of an injunction granted against the New York Times’s publication of the Pentagon Papers. Here the court concluded that the United States had not met the “heavy burden” of justification required to impose prior restraint.²⁴ Crucially, this language implied that the court rejected Justices Hugo Black and William Douglas’s view that the First Amendment disallows prior restraint altogether.²⁵ Instead, the court’s opinion indicated that it would grant an injunction when, in the words of Justice Potter Stewart, publication would “surely result in direct, immediate, and irreparable damage to our Nation or its people.”²⁶

This prudential logic was subsequently affirmed in United States v. Progressive (1979). This case arose when a magazine sought to publish an article containing technical information about the design and manufacture of the hydrogen bomb (albeit from publicly available sources, including two documents that were subsequently deemed to have been incorrectly declassified).²⁷ When the magazine refused to desist, the United States sought to bar publication.²⁸ This time around, the United States prevailed. In his opinion, Judge Robert Warren cited the statutory support offered by the Atomic Energy Act as a factor in his decision, but he ultimately relied on the standard established by Near.²⁹ The fact that the publication of the article “could materially reduce the time required by certain countries to achieve a thermonuclear weapon capability,” Judge Warren wrote, meant that “a preliminary injunction would be warranted even in the absence of statutory authorization because of the existence of the likelihood of direct, immediate and irreparable injury to our nation and its people.”³⁰

In addition to injunctions, publishers can face criminal charges subsequent to the publication of unauthorized disclosures. The criminal code features statutes that explicitly prohibit the publication of certain kinds of information, including that relating to wartime security measures, communications intelligence, and visual representations of sensitive military installations.31 There is also the possibility—highlighted by Justice White’s opinion in the Pentagon Papers case—that publishers might be liable under the Espionage Act for communicating classified documents relating to national defense to persons “not entitled to receive it.”³² Though Justice White’s reading of the Espionage Act was endorsed by a majority of his colleagues, some disagreed sharply.³³ Justice Douglas’s counterblast asserted that the plain language of the Espionage Act does not forbid publication per se, and that its legislative history suggests that Congress did not intend for it to apply to publishers.³⁴ The court has not had an opportunity to resolve this dispute, but the broader point to take away is that post-publication sanctions have not been deemed incompatible with the First Amendment.³⁵ Hence there seems to be, for now at least, no explicit bar against the introduction of additional criminal penalties.

Should Unauthorized Disclosures Be Condoned?

We have now established that officials, reporters, and publishers who participate in the unauthorized disclosure of classified information are confronted with the prospect of administrative, civil, and criminal action. Admittedly, the reach of the law in these cases is not always apparent, most notably with respect to the criminal liability of reporters and publishers under the Espionage Act. But it is quite clear that the law is not favorably disposed toward the most important link in the transmission chain—namely, the officials who make the initial disclosure of classified information. Given this, let us now examine whether the law ought to be revised to condone unauthorized disclosures.

There are typically two justifications offered in favor of prohibiting unauthorized disclosures. The first is that such disclosures can hurt the United States’ national security interests.³⁶ This damage can take a number of forms. Most visibly, unauthorized disclosures can expose sensitive policies and decisions, thereby making it harder for the United States to realize its strategic objectives. In addition, disclosures can reveal the sources and methods used to obtain secret intelligence, making it easier for foreign actors to take measures that hinder the United States’ ability to collect intelligence in the future. There can be some subtle costs, too. For instance, unauthorized disclosures can undermine the United States’ ability to secure the cooperation of other countries in undertaking activities that are morally troubling or politically embarrassing, but are nevertheless vital for national security. These countries may decline to cooperate, fearing that they will be subject to criticism or retaliation should their cooperation be disclosed. Finally, unauthorized disclosures can have spillover effects. For example, a disclosure that comes in the midst of international negotiations could lead to the collapse of a valuable international agreement or weaken the United States’ bargaining position, leading to an adverse outcome that has an enduring effect on national security.

Few would deny that these reasons are weighty. It can, however, often prove a challenge to identify exactly how weighty they are, because claims about the harm caused by unauthorized disclosures are rarely accompanied by hard evidence. This is because law enforcement officials invariably take the view that discussing the harm caused by unauthorized disclosures can itself be harmful, as it can provide rival states with further information about the activities that have been revealed. Consequently, official statements about the harm caused by unauthorized disclosures tend to verge on the banal (as in the assertion by James Bruce, the vice chairman of the CIA’s Foreign Denial and Deception Committee, that “it is impossible to measure the damage done to U.S. intelligence through leaks, but knowledgeable specialists assess the cumulative impact as truly significant”) or the mysterious (as in a prominent bipartisan congressional report claiming that “hundreds of serious press leaks have significantly impaired U.S. capabilities against our hardest targets,” adding that “we cannot, however, discuss them in an unclassified format”).37

The evidentiary challenge created by such reticence is frustrating, but it does not undermine the case for prohibiting unauthorized disclosures. In part, this is because our knowledge of close calls in the past can help us appreciate the threat posed by unauthorized disclosures. One such example dates to June 1942 when the Chicago Tribune published an article revealing that the United States had managed to break Japanese ciphers prior to the Battle of Midway.³⁸ Although the Japanese apparently failed to notice the article, the harm it could have caused is instructive (indeed this episode motivated the passage of 18 USC §798(a), which prohibits the publication of classified information relating to communications intelligence).³⁹ Furthermore, there are some, albeit few, cases where the harm caused by unauthorized disclosures has become public knowledge. One example is Jack Anderson’s decision to reveal that the NSA was intercepting telephonic communications from limousines ferrying members of the Soviet Politburo around Moscow. Almost immediately after Anderson’s article was published in September 1971, Christopher Andrew and Matthew Aid have reported, the Russians enacted measures to prevent further interception.⁴⁰ Another example dates to April 1983 when, following a bomb attack on the U.S. embassy in Beirut, news reports disclosed that communication intercepts had revealed the involvement of Syria and Iran. According to Katherine Graham, this disclosure prompted the terrorists to cease using the compromised communications channel, making it harder for the United States to monitor their activities. This intelligence loss may in turn have made it easier for the same terrorists to carry out a bomb attack on the marine barracks in Beirut five months later, causing the deaths of 241 personnel.41

The second reason to prohibit unauthorized disclosures of classified information is that they can hurt the efficient functioning of the government, which, like any other collective enterprise, cannot achieve its aims in the absence of loyalty and faithfulness on the part of its members.⁴² The anonymity that typically accompanies unauthorized disclosures is particularly worrisome in this respect, because it can foster distrust and discord among decision-makers. Consider, for example, the consequences of navy stenographer Charles Radford’s decision to pass on to Jack Anderson the minutes of a meeting that evidenced President Nixon’s and National Security Advisor Henry Kissinger’s “tilt” toward Pakistan during the India-Pakistan War of 1971. This disclosure greatly embarrassed both Nixon and Kissinger, because it ran counter to their public announcements that the United States would adopt an evenhanded approach. Not surprisingly, this disclosure led to a well-documented bout of finger-pointing within the administration that exacerbated rifts between key decision-makers, including Nixon and Kissinger.⁴³ It also led to an intense internal investigation that distracted staff and decision-makers for a prolonged period of time.

This is not to argue that unauthorized disclosures are the sole or even the leading cause of discord and distrust within the executive branch. The internal divisions fostered by Radford’s disclosure may ultimately have contributed only a little to the strife that had already been generated by the turf wars and personality clashes that plagued the Nixon administration. But the fact that administrations experience internal bickering even in the absence of unauthorized disclosures cannot be taken to mean that unauthorized disclosures cause no harm. To reason this way is akin to arguing that throwing gasoline on a burning building does no harm since the fire is already underway. In other words, even if internal bickering is to be expected, it is not unreasonable to want to restrain unauthorized disclosures with a view to preventing a bad situation from becoming worse, an outcome that would only make it harder for political leaders to pursue the policies they have been elected to carry out.

The view that unauthorized disclosures should be prohibited because they endanger national security and undermine efficiency has been challenged in two ways. The first challenge comes from scholars who question whether every unauthorized disclosure of classified information can be said to threaten national security. The premise of this challenge is that the classification system tends to produce “rampant overclassification,” because the officials and bureaucrats who operate this system use it to hide embarrassing information.44 Given this, it is argued, we should not prohibit all unauthorized disclosures, since at least some disclosures will reveal information that is only tangentially related to national security—well-known examples here being the Pentagon Papers disclosed by Daniel Ellsberg and, more recently, the diplomatic cables disclosed by Bradley Manning via the WikiLeaks website.

A second challenge comes from scholars who question whether we ought to prohibit every unauthorized disclosure that threatens national security. This challenge is also premised on dissatisfaction with the prevailing classification system, though here the problem of overclassification is attributed not to officials and bureaucrats exaggerating the need for secrecy, but rather to their failure to account for the public’s legitimate need for information concerning matters of national security. The issue is not whether unauthorized disclosures threaten national security; rather it is about when such disclosures should be condoned in spite of the threat they pose to national security. In these scholars’ view, officials and bureaucrats will refuse to make public information that poses even the slightest threat to national security, lest “the enemy” profit from such information. As such a conservative stance threatens to leave citizens entirely in the dark on matters of deep moral and political significance (e.g., the use of torture in counter-terrorism operations), unauthorized disclosures should be condoned, the argument goes, when the public’s interest in the information revealed by such disclosures outweighs the prospective harm to national security.⁴⁵

I would argue that these justifications for condoning unauthorized disclosures are faulty in two respects. First, unauthorized disclosures are not a costless remedy to the problem of overclassification. States must be able to retain information whose disclosure would genuinely harm national security. In order to guide the handling of such information, states need to rely on a system of classification markings. It is not difficult to see that the deterrent effect of such classification markings will be weaker when the threat of punishment for violating the relevant guidelines is conditional rather than assured. This is simply a matter of incentives: the more certain an individual is that disobedience will be met with punishment, the more likely he is to respect the relevant classification guidelines. Furthermore, if the threat of punishment is conditional rather than assured, then the deterrent effect of classification markings will ultimately depend on an official’s willingness to take his chances before a jury. This arrangement invites disgruntled or scheming officials to disclose classified information, since proving that the information they have disclosed was appropriately classified will likely put prosecutors in the unhappy position of having to disclose additional classified information to a jury. Consequently, making punishment conditional rather than assured will ultimately make it harder for the government to deter the unauthorized disclosure of information that has been appropriately classified.

This argument implies that the more suitable response to the problem of overclassification is to reform the classification system. But this argument is likely to be met with the objection that it is fruitless to combat overclassification through statutory reform, because even the strictest classification statute must leave the executive branch broad discretion to withhold information under the heading of national security.46 Hence, as overclassification seems “inevitable” under any classification system, critics such as Heidi Kitrosser argue, it becomes important to prohibit only those unauthorized disclosures that are highly likely to harm national security.⁴⁷ This is all the more necessary, the criticism goes, in light of the systemic weaknesses associated with judicial review and legislative oversight discussed in chapters 2–3.

Suppose we accept this claim. Even so, can we be confident that the ensuing unauthorized disclosures of classified information will not harm national security? Presumably, we will have to lay our faith in the judgment of the officials, reporters, and publishers responsible for making such disclosures. But is it sensible to assume that they will always have a grasp of the repercussions of every disclosure they make? This seems implausible; on the contrary, it is reasonable to assume that they will often be unaware of the bigger picture; they will not always know how the disclosure of a given piece of information might affect plans or activities that have remained secret, such as back-channel diplomacy or counterintelligence operations. Certainly, there will be cases where the bigger picture will hardly matter. The official who disclosed the Iraqi high school science exam reportedly classified as secret by overzealous American weapons inspectors will clearly not be putting national security at risk.⁴⁸ But can we assume that officials, reporters, and publishers will always know whether a given piece of information is an instance of overclassification? Consider, for example, the Los Angeles Times’s decision to run an article revealing that the CIA had been recruiting Iranian-American businessmen to act as informants. The paper published the article over the objections of the CIA because, in the words of its then-managing editor Dean Baquet, what the CIA “were doing in the [Iranian expatriate] community was well known and they were kidding themselves if they thought it wouldn’t get out.”⁴⁹ It is not facetious to suggest that if we are persuaded by Baquet’s claim, then we should favor disestablishing the CIA, since we would then believe that the staff of the Los Angeles Times is better equipped than the CIA is to judge the harm an article is likely to cause intelligence-related activities. (For the record, the CIA maintains that the story did have an adverse impact. According to a spokesperson, “the plan to use the Iranian-Americans to bring back intelligence had worked quite well, but not since the Times story. It was a one-day story in the Times, but got much bigger play in Iran. … Now, an Iranian expatriate going to Iran is going to find he is under much greater scrutiny.”)50

If we allow private actors to ignore classification markings, then we ought to ask ourselves why we have established a classification system in the first place. The point is not that officials do not engage in overclassification. Rather, it is that if we do not want private actors to undermine the public authority that we have created through law and armed with expertise and information, then we must accept, warts and all, the decisions produced by a classification system designed, authorized, and funded by publicly elected officials.⁵¹ Conversely, to the extent the prevailing system is flawed, the appropriate remedy must be public reform directed by our chosen representatives, not subversion by under-informed private actors.

So far I have been arguing that overclassification cannot be accepted as a reason for allowing officials, reporters, and publishers to make unauthorized disclosures, as they are not well placed to estimate the harm likely to be caused by such disclosures. Now consider a second flaw in the argument that overclassification justifies allowing unauthorized disclosures. Why should we believe that officials, reporters, and publishers have the legitimacy to decide that the public interest is better served by the revelation of a given piece of classified information? These actors typically justify their actions on two grounds. First, it is argued that unauthorized disclosures further democratic accountability when they draw attention to potential violations of the public’s trust and provide citizens with the (otherwise classified) information they need to ascertain responsibility.⁵² Second, it is asserted that unauthorized disclosures protect civil liberties when they expose government policies that violate individual rights.

These justifications are founded on a premise that few could disagree with, namely, that a polity will typically want to balance its interests in national security and efficiency against its interests in securing accountability and protecting civil liberties. But what these justifications do not address is whether unauthorized disclosures by officials, reporters, and publishers constitute a legitimate means by which to balance these interests when they come into conflict. There are at least two reasons to doubt that this is the case. The first is that whatever their shortcomings, the decision-makers who supervise the classification system can genuinely claim to have been authorized by citizens to strike a suitable balance between competing interests and priorities. By contrast, the parties involved in disclosing, reporting, and publishing classified information are neither elected by the people nor appointed by their representatives. Thus when unauthorized disclosures occur, vital decisions on matters of national security are effectively being made by private actors, an outcome that violates the democratic ideal that such decisions should be made by persons or institutions that have been directly or indirectly endorsed by citizens. In the case of such disclosures, we have a powerful reason to disapprove of the activities of officials, reporters, and publishers—namely, that they constitute a form of usurpation.

Here it may be objected that officials, reporters, and publishers are individual and corporate members of civil society whose actions merely promote or uphold shared interests. Hence they cannot be charged with usurping political power when they make unauthorized disclosures, any more than the American Civil Liberties Union (ACLU) can be charged with usurping political power when it seeks to influence public policy on behalf of the public. But is this analogy valid? Arguably, the behavior of officials, reporters, and publishers who disclose classified information is akin to the ACLU spiriting out and publishing minutes of the Supreme Court’s closed-door deliberations under the pretext of furthering the public interest. To be sure, under certain circumstances, the ACLU may be justified in disobeying the court’s rules. For example, if it obtains minutes that show the court’s decision making to be predicated on some sort of racial theory, then exposing the court’s deliberations would be defensible on a variety of grounds. But do we want to grant the ACLU—and, by extension, other organizations in civil society—the right to expose the court’s deliberations whenever they believe this would further the public interest? Wouldn’t the ensuing violations of the court’s confidentiality by various groups—each believing that its disclosures further the public interest—ultimately serve to impair the court’s deliberative capacity? The point, in short, is that we establish procedures and authorities—such as elections and courts—in order to balance and arbitrate between conflicting interests. These authorities and procedures allow us to collectively determine what is in the public interest. Consequently, to permit these authorities and procedures to be undermined on the basis of private judgments about what constitutes the public interest plainly seems a recipe for disorder. (This does not, as we shall see in chapter 5, rule out disobedience when there is a clear evidence of serious wrongdoing.)⁵³

The second reason to doubt whether unauthorized disclosures constitute a legitimate means for balancing potentially conflicting interests is that it is difficult for citizens to hold officials, reporters, and publishers accountable for rash or malicious disclosures. Although reporters, editors, and publishers claim that they are held accountable by their readers and advertisers, this claim, as Lillian BeVier has argued, cannot be taken seriously because the marketplace is not a suitable analogue for the electoral system.54 And even if it were, the usually anonymous and fragmentary character of unauthorized disclosures makes it hard for the public to ascertain the motives and judgments of the officials, reporters, and publishers involved, which in turn makes it a challenge to identify and punish those responsible for publishing rash or malicious disclosures. To feel the weight of this problem, consider the following example. In the mid-1990s the New York Times ran a story about how the CIA was using “unsavory characters” as informers to help fight terrorism. Although the CIA was able to persuade the New York Times to delete the name of one such informant, the article still described him in some detail. The outcome, according to the CIA, was that “the asset disappeared shortly thereafter and his family believed terrorists killed him.”⁵⁵

How should we react to this example? Our first impulse might be to feel outrage at the New York Times’s apparently irresponsible behavior. But there are a number of possibilities that we ought to consider. To begin, we will want to know whether the details contained in the published article actually proved decisive in revealing the identity of the informer (after all, the terrorists may have already considered the informant a likely CIA source). Equally, we will want to be sure that the informant’s reported “disappearance” is not actually part of an elaborate cover story conceived to ensure his safety. And to ascertain whether it was appropriate for the New York Times to expose the CIA’s dealings with “unsavory characters,” we will need to know whether there were alternative, less troubling, means that the CIA could have used to apprehend wanted terrorists. But how are we to obtain such information? It is safe to assume that neither the CIA nor the informant’s former associates will volunteer to fill in the blanks. And so we are unable to say much about whether this disclosure actually served the public interest. And yet it seems essential that we be able to say something in cases such as this. We cannot simply assume that officials, reporters and editors, and publishers are more public-spirited than the representatives and senior officials they undercut—after all, subordinate officials can have axes to grind, reporters and editors have careers to make, and publishers have advertising space to sell. As a result, our inability to hold these actors accountable should be seen as reviving, rather than redressing, our fear of the abuse of regulatory power.

The charge that it is difficult to hold officials, reporters, and publishers accountable can be countered in two ways. In the first place, it may be argued that unauthorized disclosures tend to be made anonymously precisely because they are illegal. If the laws were revised to allow unauthorized disclosures to be made in the public interest, then the use of anonymity would diminish, which in turn would allow the officials responsible to be held accountable. But this argument seems implausible, as a host of factors make anonymity appealing, not the least of which is the desire of officials to maintain their privacy and to avoid suffering embarrassment and hostility in the workplace (as we shall see in chapter 5). Besides, even if officials responsible for unauthorized disclosures are attracted to anonymity solely because they fear the law, how far could the law be changed to address their fear of being prosecuted? Since a law permitting unauthorized disclosures will condone only disclosures that are in the public interest, we should expect officials who make controversial disclosures—disclosures that both inform the public and endanger national security—to still take shelter behind anonymity, lest they end up on the wrong side of the law. Yet it is precisely such controversial disclosures that we will most want to scrutinize in order to preserve accountability (as we shall see in chaper 6).

The other way in which the charge can be countered is to argue that the anonymity that typically accompanies unauthorized disclosures can at worst be used to cover up bureaucratic infighting, whereas state secrecy can be used to shield violations of the law. Hence, from the point of view of accountability, it might be claimed, the costs associated with tolerating anonymous disclosures are a small price to pay in return for the security that grave crimes will not go unnoticed. But this claim does not seem credible in light of recent experience.⁵⁶ Over the past decade, anonymous disclosures have been used to falsely accuse Wen Ho Lee and Steven Hatfill of engaging in espionage and bioterrorism, respectively, and to maliciously reveal the identity of a covert CIA officer, Valerie Plame.⁵⁷ Crucially, in each of these cases, reporters and publishers refused to obey court orders to disclose the names of their sources, preferring, in the words of one critic, to show “loyalty to sources with an axe to grind.”⁵⁸ More troublingly still, anonymous disclosures have been used to manipulate the public. In the run-up to the war on Iraq, for instance, reports based on sources with “knowledge” of Iraq’s weapons of mass destruction program played a significant role in making the case for war.⁵⁹ Yet it is now widely believed that these reports presented a one-sided view, and indeed may have been part of a concerted effort to influence public opinion.⁶⁰ As a result, we cannot claim with confidence that in terms of accountability the harm likely to be caused by state secrecy will typically outweigh the harm likely to be caused by anonymous disclosures.

Can Unauthorized Disclosures Be Adjudicated?

I have argued that the law should not condone unauthorized disclosures because the officials, reporters, and publishers responsible have neither expertise nor legitimacy on their side since they are not authorized to balance the public’s competing interests in secrecy and knowledge, and cannot be reliably held accountable for their decisions. Are there means by which these deficiencies might be remedied? For example, could Congress intercede on behalf of citizens? A number of scholars, most notably Harold Edgar and Benno Schmidt, argue that lawmakers have already spoken through their actions. Congress’s unwillingness to explicitly criminalize all unauthorized disclosures, they claim, indicates that lawmakers endorse the role played by officials, reporters, and publishers (save in a few, narrowly drawn areas such as reporting on wartime measures and communications intelligence, where Congress has explicitly prohibited all unauthorized disclosures). But this claim is not supported by the evidence, as we can see from the House’s decision in June 2006 to formally condemn the New York Times for revealing the existence of the Terrorist Financing Tracking Program, a counterterrorism initiative conducted by the Department of the Treasury.61 Such inconsistencies in the public record make claims about congressional support for unauthorized disclosures more an assumption than a fact. Hence if we are to believe that lawmakers do in fact approve of unauthorized disclosures as a means of regulating the employment of state secrecy, then we need an explicit signal of their approval.

What form could this signal take? It should be evident that lawmakers cannot simply authorize officials, reporters, and publishers to disclose classified information as they see fit: to do so would create a contradiction in the structure of public authority, with one bearer of public authority (officials, reporters, and publishers) allowed to disclose what another bearer of public authority (the executive) has been allowed to conceal. Consequently, lawmakers will need to appoint an arbitrator to evaluate whether a given unauthorized disclosure is actually in the public interest. In whom should this authority be vested?

Congress could take on this role by requiring unauthorized disclosures to be routed via itself so that lawmakers can decide which disclosures serve the public interest.⁶² But is it advisable, not to mention feasible, for Congress to undertake such screening? There are at least two reasons to think otherwise. The first is constitutional in nature. As we saw in chapter 3, the executive branch takes the view that Article II entitles the president to control the behavior of his subordinates, especially with respect to the maintenance of secrecy, a claim that finds some support in Department of the Navy v. Egan (1988), where the court ruled that the president’s authority to control information bearing on national security flows primarily from his role as commander-in-chief, “and exists quite apart from any explicit congressional grant.”⁶³ On this view, then, a statutory scheme authorizing officials in the executive branch to make disclosures to Congress in violation of the president’s orders would be unconstitutional. Note that its protests to the contrary notwithstanding, Congress has thus far acceded to this point of view. For instance, the Intelligence Community Whistleblower Protection Act authorizes officials who wish to “engage in whistleblowing activity relating to intelligence matters” to approach Congress, but only after they first raise the issue with the relevant inspector general, who is to “advise” the official on the procedures for making a complaint to Congress.64 As one might imagine, this procedural requirement has meant that Congress has received few disclosures via this channel, since few officials have wanted to risk incurring the wrath of their colleagues and managers by announcing their desire to approach Congress.⁶⁵

Suppose we decide that the president’s Article II claims are unfounded. There remains another reason to be skeptical about the utility of having lawmakers screen unauthorized disclosures. As I argued in chapter 3, the structure and composition of Congress hinder its ability to prevent its members from making unauthorized disclosures. In the present context, the same argument gives us reason to doubt whether Congress will be able to restrain its members from retransmitting unauthorized disclosures to the press. There is evidence to support this fear. One example dates back to 1941 when an army captain passed on a copy of the United States’ highly secret plans for World War II to Senator Wheeler (whom we met in chapter 3). Wheeler, an isolationist avidly opposed to American involvement in the war, chose to pass the plans on to the Washington Herald Tribune rather than to the Senate leadership because “he believed the [Foreign Relations] Committee would not want to publicize them.”⁶⁶ Another example dates to 1995 when Richard Nuncio, then an official in the Department of State, informed Representative Robert Torricelli, a member of the House Intelligence Committee, that the CIA had on its payroll in Guatemala an informant potentially involved in the murder of an American citizen.⁶⁷ Rather than bring the information to the attention of the House Intelligence Committee or the leadership of Congress, Torricelli chose to disclose what he had learned, including the identity of the informant, to the New York Times.⁶⁸ Torricelli defended his decision not to alert the president on the grounds that “the President might have shared classified information that would have placed me in an ethical bind.”⁶⁹

Now, in both the examples cited above, the unauthorized disclosures in question were made to individual congressmen rather than to the relevant congressional committees. This fact may prompt the suggestion that the risk of retransmission would be lower if we were to establish a formal procedure by which unauthorized disclosures could be made directly to the relevant committees of Congress. But it is not at all clear why congressional committees will be more disciplined in handling unauthorized disclosures than they are in handling classified information more generally. On the contrary, one ought to fear that lawmakers will evaluate such disclosures with an eye to the partisan rewards to be gained from their publication or suppression. Besides, there is reason to doubt that officials who wish to make unauthorized disclosures will be willing to approach Congress. The fundamental problem here, as Alan Katz has noted, is that officials recognize that lawmakers do not have a strong incentive to maintain the confidentiality of their sources.70 In contrast to reporters and publishers, who stand to pay a heavy price professionally if they disclose the identity of an anonymous source, congressmen have little to lose and much to gain by striking a deal with the administration or by selectively retransmitting disclosures in order to settle scores or to attract favorable publicity. Given this, we should not be surprised to find that officials who want to make unauthorized disclosures generally prefer to approach the press rather than Congress. Consider the following exchange, recorded in the report of the Senate Select Committee on Intelligence on the potential misuse of secret intelligence in the run-up to the Iraq War. The committee asked Mr. Richard Kerr, a former member of the intelligence community, whether intelligence analysts felt they had faced political pressure to skew secret intelligence:

Mr. Kerr: “There’s always people who are going to feel pressured in these situations and feel they were pushed upon.”

Committee Interviewer: “That’s what we’ve heard. We can’t find any of them, though.”

Mr. Kerr: “Maybe they are wiser than to come talk to you.”⁷¹

The drawbacks associated with having Congress determine whether unauthorized disclosures are in the public interest inevitably throw into sharp relief the institutional characteristics of the judicial branch, most notably its proven ability to maintain secrecy and its insulation from the imperatives of electoral politics. Should Congress call upon the courts to determine when an unauthorized disclosure is in the public interest? This is what some scholars believe. Cass Sunstein, for instance, has argued that since there is “no reason to believe” that allowing officials, reporters, and publishers to decide whether and when to disclose classified information “will ensure a workable accommodation of the interests in disclosure and secrecy,” we should call upon judges to balance the interests that might be served or hindered by an unauthorized disclosure.⁷² Before we can take refuge in the courts, though, we ought to account for three challenges to the courts’ ability to determine which unauthorized disclosures are in the public interest.

The first challenge concerns the incommensurability of interests. As Louis Henkin has asked, even though the principle of balancing interests is unobjectionable, can courts “meaningfully weigh the Government’s ‘need’ to conceal, the Press’ ‘need’ to publish, and the people’s ‘need’ to know?”73 The objection is not that courts cannot come to some conclusion about the public interest in every case, but that there appears to be no firm basis on which to compare costs and benefits, especially when a given disclosure is both harmful to national security and valuable to citizens and lawmakers.⁷⁴ For instance, suppose a newspaper reveals that the president, who has been elected on a “no compromise” platform, has been secretly pursuing a peace deal with a terrorist group. The newspaper claims that the public has a clear interest in knowing that the president has acted contrary to his electoral platform. Meanwhile, the president claims that he has not violated any laws, and that the disclosure has led to a demonstrable loss of diplomatic credibility. How should the court go about weighing the benefit of greater public knowledge against the loss of diplomatic credibility? Suppose an election is due. Does this make public knowledge more valuable than diplomatic credibility? What if the polls show that the president is tied with his opponent? Does this make it more important for the public to know that the president is more moderate than he claims to be? Suppose the loss of diplomatic credibility is likely to make antiterrorism operations less effective. Does this make diplomatic credibility more valuable? What if a key ally announces that the unauthorized disclosure will not be allowed to derail antiterror cooperation? Should the court now discount the harm caused to the United States? Or should the court assume that this ally will extract its pound of flesh at a later date—perhaps by demanding valuable intelligence as compensation—and that the harm to national security is therefore indirect but still quite real? The answers to these questions will ultimately depend on political judgment—that is, on the capacity to comprehend interests, to discern what compromises might be feasible, and to then make a decision in the midst of constantly evolving circumstances and highly incomplete information. Unfortunately, calls for “interest balancing” obscure this messy reality and do not explain why we should believe that judges’ decisions will be qualitatively better than those made by the president. It might be objected that in the hypothetical case outlined above, the court’s judgment will be less impaired by the upcoming election than the president’s might be. Perhaps so, but are we to assume that judges have no parochial concerns of their own? Certainly they will be free from electoral pressures, but will they be immune to the wrath of the press, which has the power to besmirch their reputations, devalue their legacies, and generally undermine their prospects for elevation to higher courts?

The second challenge the courts face is that of estimation. This challenge arises when the courts are called upon to decide whether an impending unauthorized disclosure is contrary to the public interest. In order to provide a reasoned answer, the courts will need to estimate the degree of harm likely to be caused by the unauthorized disclosure in question. The courts have not shied away from making such an estimate in the two prior restraint cases discussed earlier—New York Times and Progressive. This may seem surprising given that the courts have otherwise been hesitant to second-guess the executive’s judgment of the harm likely to be caused by the disclosure of classified information (as we saw in chapter 2). Part of the explanation must be that prior restraint cases are less demanding to adjudicate. In cases adjudicated under FOIA, judges must evaluate whether a given disclosure will harm national security more generally, an evaluation that calls for familiarity with the ins and outs of national security. By contrast, prior restraint cases require judges to agree upon whether the publication of an unauthorized disclosure is likely to cause “direct, immediate, and irreparable” harm, a criterion that, presumably, even an inexpert observer ought to be able to apply.⁷⁵

Or so it would seem. A closer examination of New York Times and Progressive reveals just how difficult it is for judges to agree upon the harm likely to be caused by an unauthorized disclosure. Consider the discrepancies in the justices’ estimates as to the harm likely to be caused by the publication of the Pentagon Papers. Whereas Justice Douglas emphasized that the Pentagon Papers contained “history, not future events,” Justice White claimed that he was “confident” that their publication would do “substantial damage to public interests,” while Justice Blackmun supported the proposition that publication “could clearly result in great harm to the nation.”⁷⁶ To be sure, such variances are not unusual—as noted in chapter 2, intelligence analysts consider such variances an inevitable part of the business of estimation. But are such variances acceptable in the context of legal adjudication? We ought to be concerned that such variances will make it difficult for the courts to fashion consistent answers to the question of whether a particular kind of unauthorized disclosure is likely to serve the public interest. Consequently, there is a significant chance that broadly similar unauthorized disclosures will be judged differently by different courts depending on the viewpoint of the judges involved—an outcome that confounds our effort to establish the legitimacy of such disclosures.

We may be tempted to take the view that such variances in estimates of harm can be eliminated or at least narrowed if the courts are provided with sufficient information and the advice of experts. Kitrosser, for example, has argued that if judges can deal with complicated financial and scientific cases as well as incitement cases in the vein of Brandenburg v. Ohio (1969), then they should have no trouble dealing with cases involving unauthorized disclosures.77 But this view is mistaken for at least two reasons. First, as discussed below, the relevant evidence is far harder to come by in cases involving unauthorized disclosures, as opposed to scientific and financial disputes. Second, even when the evidence is available, the probabilities that need to be calculated in national security cases are far more complex than in an incitement case, because of uncertainties about who might exploit an unauthorized disclosure and how they might exploit it. As a consequence, objective answers tend to be few and far between, as we can see from the Progressive case, where after confronting a battery of affidavits arguing for and against the publication of the article about how to build a hydrogen bomb, Judge Warren was led to observe that “if there is any one inescapable conclusion that one arrives at after wading through all these experts’ affidavits, it is that many wise, intelligent, patriotic individuals can hold diametrically opposite opinions on the issues before us.”⁷⁸ Of course Judge Warren was required to reach a conclusion and so he did: he concluded that the publication of the article “would irreparably harm the national security of the United States.”⁷⁹ And when no such harm materialized after another periodical in Wisconsin published a letter detailing much of the information contained in the enjoined article (an event that led the United States to drop its case against the Progressive), the brickbats quickly followed, with one leading nuclear scientist telling Time that the article should have been ignored rather than enjoined “because so much of it is wrong anyway.”⁸⁰

So far I have offered two reasons why courts will find it difficult to determine whether unauthorized disclosures are in the public interest. Now consider a further challenge—that of marshaling and managing evidence. This challenge arises when the courts are asked to ascertain whether an unauthorized disclosure that has already occurred has harmed the public interest. To answer this question the court will obviously need to know the facts surrounding the unauthorized disclosure, particularly the harm caused to national security. However, there will inevitably be cases where law enforcement officials will be unwilling to pursue legal action against unauthorized disclosures, much less to confirm or deny that harm has been caused, because this may signal to rival states the truth or falsity of the information revealed by the disclosure in question. Clearly, it is hard to be sure how many unauthorized disclosures are likely to be of this nature, but it is worth bearing in mind that the bipartisan congressional report cited earlier identified “hundreds of serious press leaks” that could not be discussed in a public setting.⁸¹

Furthermore, there will inevitably be cases where law enforcement officials will refrain from taking legal action because of the likelihood that the defendant will taking access to classified information in order to mount a defense. To see just how penetrating such demands can prove, consider what would likely have happened had the Justice Department tried to prosecute an unauthorized disclosure widely cited as evidencing the harm that leaks can cause. I refer here to the Glomar Explorer saga, which began in February 1975 when the Los Angeles Times and the New York Times reported that the CIA had been partially successful in covertly salvaging a sunken Russian submarine using a specially designed ship, the Glomar Explorer.82 Following this revelation, director of central intelligence William Colby attempted to persuade reporters and publishers not to further publicize the story, lest it alert the Russians and thereby undermine the CIA’s effort to salvage the remainder of the submarine’s contents. However, Jack Anderson refused to cooperate and revealed the operation in a radio broadcast, attacking it as an expensive “boondoggle.”⁸³ The consequence, according to Colby, was that the Russians began patrolling the area around the sunken submarine, forcing the CIA to cancel its planned second attempt to recover what promised to be a treasure trove of intelligence. Or so it would seem. A closer examination of the episode reveals just how difficult it is to know what exactly was at stake when Anderson disclosed the Glomar Explorer’s mission.⁸⁴ There are at least four plausible claims in circulation. The first is that Colby exaggerated the harm caused by Anderson’s disclosure in order to turn public opinion against him.⁸⁵ The second is that Colby only pretended to be troubled by the disclosure in order to conceal the fact that he actually wanted to draw attention to the operation so that the CIA would receive credit for “the single greatest intelligence coup in history.”⁸⁶ The third claim is that the Glomar Explorer actually succeeded in recovering the contents of the submarine on the first attempt, and that Colby had only pretended to be distressed by Anderson’s disclosure in an effort to hide the success from the Russians.⁸⁷ Then there is of course the possibility that Colby was telling the truth.⁸⁸

Now suppose the CIA had attempted to prosecute Anderson, and that there had then existed a law permitting unauthorized disclosures in the public interest. It is not hard to imagine how Anderson’s lawyers would have reacted. They would have demanded access to the CIA’s files in order to vindicate Anderson’s claim that the operation was a wasteful exercise and not an intelligence coup. It is also not hard to envision what the outcome of this scenario would have been. The Justice Department would undoubtedly have chosen to drop the prosecution rather than expose the inner workings of the CIA to Anderson’s lawyers. Such an outcome would serve the cause of due process, but it would hardly constitute a vindication of the public interest.89

There is a further kind of evidentiary problem that the courts will have to confront when they try to adjudicate whether unauthorized disclosures are in the public interest. In at least some cases where an unauthorized disclosure is blamed for having harmed national security, substantiating the charge will likely require testimony from foreign officials or from members of foreign organizations, who alone will know whether they genuinely benefited from the disclosure in question. But the courts will obviously be in no position to compel such testimony. The consequence will be an evidentiary paralysis of the sort that has gripped another case that is widely cited as demonstrating the harm caused by unauthorized disclosures.⁹⁰ I refer here to the publication in August 1998 of an article in the Washington Times stating that Osama bin Laden “keeps in touch with the world via computers and satellite phones.”⁹¹ Following the attacks of September 11, 2001, Daniel Benjamin, a former National Security Council official claimed that after the publication of this report “bin Laden stopped using the satellite phone instantly,” adding that “when bin Laden stopped using his phone and let his aides do the calling, the United States lost its best chance to find him.”⁹² In July 2004, the 9/11 Commission echoed the allegation, noting in its report that “Al-Qaeda’s senior leadership had stopped using a particular means of communication almost immediately after a leak to the Washington Times. This made it much more difficult for the National Security Agency to intercept his conversations.”⁹³ The accusation was reiterated in February 2005 by Michael Sheuer, the former chief of the Bin Laden Issue Station at the CIA; Sheuer reportedly said of the Washington Times article that “a direct causal line can be drawn between the publication of that story and the events of September 11.”⁹⁴ In September 2005, Representative Pete Hoekstra, then the chairman of the House Intelligence Committee, repeated the accusation, and in December 2005 President Bush referenced the Washington Times article when castigating the New York Times for revealing that the NSA had undertaken warrantless wiretapping.⁹⁵

With so many public officials making the same claim, one might assume that the evidence of the Washington Times’s culpability must have been incontrovertible. But shortly after President Bush spoke, the story began to unravel. Jack Shafer of Slate promptly pointed out that Bin Laden’s use of a satellite phone had actually first been reported by Time in December 1996, nearly two years prior to the article in the Washington Times.⁹⁶ Then Glenn Kessler of the Washington Post added that Bin Laden’s satellite phone had been mentioned on CNN and CBS one day prior to the article published in the Washington Times and in USA Today on the very day the article was published.97 Subsequently, Peter Bergen, one of the few Western reporters to have met Bin Laden, added that “bin Laden had been careful not to use satellite phones or cell phones long before the 9/11 attacks.”⁹⁸ Meanwhile, Bill Gertz of the Washington Times offered a simpler explanation as to why Bin Laden may have stopped using the satellite phone: on August 21, 1998, the day before the Washington Times ran the article in question, the United States had tried to kill Bin Laden with a missile strike. “For a terrorist,” Gertz dryly observed, “those kinds of near-death experiences can prompt a change in operating procedures.”⁹⁹ This was not to be the last twist in the tale. When the Washington Post’s Kessler sought a reaction from Lee Hamilton, the vice chairman of the 9/11 Commission, Hamilton replied that the commission had “relied on the testimony of three ‘very responsible, very senior intelligence officers,’ who had ‘linked the Times story to the cessation of the use of the phone,’ describing it as a ‘very serious leak.’ ” Kessler then approached the CIA, but it declined to comment because the matter concerned “intelligence sources and methods.” The White House, meanwhile, reasserted that it “was confident that press reports changed bin Laden’s behavior.”¹⁰⁰

Imagine, then, the plight of a judge faced with having to determine whether the article in the Washington Times has in fact damaged national security. Should he believe Gertz, who has speculated that the “very responsible, very senior intelligence officers” described by Hamilton were in fact merely parroting the “flawed theory” first publicized by Benjamin?¹⁰¹ Or should he believe Porter Goss, the former director of central intelligence, who has stated in no uncertain terms that although reporters depict the claim that the Washington Times article hurt national security as an “urban myth,” the reality is that “the revelation of the phone tracking was, without question, one of the most egregious examples of an unauthorized criminal disclosure of classified national defense information in recent years.”¹⁰² And what if the judge were able to compel Goss to substantiate this charge, and the evidence turned out to be—as is often the case in intelligence analysis—well-informed conjecture? The judge would be left wishing for the testimony of the persons most likely to know why Bin Laden stopped using a satellite phone after August 1998, namely, Bin Laden’s aides.

How to Sound the Alarm?

The objections presented immediately above imply that the case for revising the laws to condone unauthorized disclosures of classified information is not compelling. If we cannot be confident that officials, reporters, and publishers will know which unauthorized disclosures are in the public interest, and if they cannot be reliably brought to account for making rash or malicious disclosures, then allowing them to make disclosures whenever they think this is in the public interest will endanger national security and undermine democratic accountability.

It is important to note, however, that these objections militate only against granting officials, reporters, and publishers the legal right to make unauthorized disclosures. The implication is not that such actors can never be justified in making an unauthorized disclosure. Arguably, our concern—that officials, reporters, and publishers do not have the knowledge or the legitimacy to decide whether unauthorized disclosures are in the public interest—fades away whenever such disclosures reveal grave wrongdoing. Thus the objections presented above do not preclude officials, reporters, and publishers from sounding the alarm; they only imply that these actors should make such disclosures by disobeying laws prohibiting unauthorized disclosures when it is appropriate to do so.

This conclusion will no doubt displease officials, reporters, and publishers, who will as a consequence have to put their necks on the line. But the alternative—granting underinformed and unaccountable private actors the right to make unauthorized disclosures whenever they think this serves the public interest—is certainly not attractive. With this thought in mind, let us now examine when officials, reporters, and publishers would be justified in disobeying the laws prohibiting unauthorized disclosures, and whether they are likely to do so in spite of the threat of retaliation.