Some secrets are plainly necessary. The disclosure of sensitive national defense information that puts the country at risk deserves to be punished to the maximum extent of the law. But if there are necessary secrets, is there also something we can call necessary leaks?
The Trump administration, leaking like the Lusitania after it was struck by a torpedo, has put that question squarely before us. President Trump professes outrage. “The FBI is totally unable to stop the national security ‘leakers’ that have permeated our government for a long time,” he has tweeted. “Classified information is being given to the media that could have a devastating effect on the U.S.,” he continued, “FIND NOW.”
Never mind that Trump loved leaks during the campaign. And never mind that some of the leaking appears to be coming from the White House itself, sending spokesman Sean Spicer rummaging through all the electronic devices belonging to members of his own staff.
The president would appear to have a point. At least some of the leaking is a violation of the law, and much of it pours sand into the gears of a duly elected government. Our democracy will be at risk if it cannot keep its national security deliberative processes and plans secure.
At the same time, the leaks have informed us of critically important developments. They have provided an advance look at some of the president’s more controversial executive orders. They have treated us to valuable snippets of telephone conversations that the president has conducted with foreign leaders.
Among other things, we’ve learned that Trump, talking with Mexican President Enrique Peña Nieto, threatened to send U.S. troops across the Rio Grande in search of “bad hombres.” He complained to Australian Prime Minister Malcolm Turnbull on the phone that “this was the worst call by far” and abruptly terminated the conversation.
Most crucial of all, we learned from a leak published by The Washington Post that, in December, while Barack Obama was still president, would-be national security adviser Michael Flynn discussed sanctions with the Russian ambassador and then lied about this to — among others — Vice President Pence. Without the public pressure generated by the Post story, Trump might never have clued in Pence or fired Flynn for his breach of trust.
Tension between the competing imperatives of secrecy and transparency is a longstanding feature of our democracy. It became especially acute in the post-9/11 era and now appears to be reaching a kind of breaking point. In thinking about our situation, it is necessary to clear away a bit of underbrush.
No one disputes that the U.S. government habitually misclassifies and overclassifies information. A great deal of material stamped secret is perfectly innocuous. At the same time, government secrets are disclosed almost daily and fill the news columns of our major newspapers. While leaks of truly sensitive information can damage our security, most do not fall into that category. Rather, the disclosure of classified information is an integral part of the system by which the electorate in our democracy is informed.
Yet one of the real problems before us today is that not all the information being leaked is innocuous. Quite the contrary. It is some of the most closely held information collected by the U.S. government. The wiretaps of Flynn were highly secret because they involved electronic eavesdropping on a foreign diplomat, and even more so because they captured the constitutionally protected communication of a private U.S. citizen.
Trump’s conversations with foreign leaders are no less sensitive. It is obvious that the United States cannot successfully conduct diplomacy if our president’s confidential words are broadcast to the entire world.
That is precisely why unauthorized disclosure of sensitive classified information — of truly necessary secrets — is not only a criminal offense but also an assault on democracy itself. Unelected bureaucrats, making use of confidential journalistic channels, are abusing their privileged access to advance their privately held views of what is right and just. Such anonymous leaking is a bastardized form of civil disobedience, for it is civil disobedience without consequences. It is as if Rosa Parks, to escape responsibility, chose to wear a mask while refusing to move to the back of the bus.
In normal circumstances, those engaged in this kind of sabotage of democracy should face serious sanctions. But the significant wrinkle is that we inhabit unprecedented circumstances. The Trump administration itself poses a peril — in multiple ways — to democratic rule. Its high officials have threatened to cast aside checks and balances, declaring that the president’s national security decisions cannot be questioned by the courts. It regularly purveys false information to the public about matters great and small. It attacks the intelligence agencies in ferocious terms and attempts to politicize their findings. Reports about an ongoing FBI investigation into Russian interference with the presidential election suggest that close associates of the president, if not Trump himself, might have been involved in activities bordering on treason.
Under these circumstances, the criminal laws punishing leaking remain fixed, but the moral calculus is turned on its head. Ordinarily a potential threat to democracy, leakers might now be one of democracy’s salvations. To be sure, this is precisely the same self-justificatory argument advanced by every leaker in our history from Daniel Ellsberg to Edward Snowden. But what those leakers will not say is that anyone who discloses secrets to defend democracy should be prepared to accept responsibility and face justice: Ellsberg (at least initially) went “underground”; Snowden fled to Moscow.
Whatever one’s view of the ethics of leaking, the omnipresent possibility of leaks is a key check on Trump’s ability to trample on the Constitution. With our country under threat from its own leadership, we have moved into a world in which necessary secrets must give way to necessary leaks. Now that the president has declared our free press to be the “enemy of the American people,” it is past time to open the floodgates.
Gabriel Schoenfeld, a senior fellow at the Hudson Institute and a member of USA TODAY’s Board of Contributors, is the author of Necessary Secrets: National Security, the Media, and the Rule of Law. Follow him on Twitter @gabeschoenfeld