The Secret Sharers

Leaking and Whistle-Blowing in the Trump Era

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TOO MANY LEAKS

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?

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 hypotheticals 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 hypotheticals 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 non-American 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 U.S. Constitution already provides a legitimate way to prevent abuses of power and official misconduct: rigorous congressional oversight.

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.

PETER FEAVER is Professor of Political Science and Public Policy at Duke University.

NO ORDINARY TIME

Michael Walzer identifies several types of leaking and whistle-blowing and explores their ethical implications. His reasoning is thoughtful and nuanced and fine for politics as usual. But American politics today are highly unusual, and taking that context into account changes the moral calculus he presents. 

Extraordinary times demand extra­ordinary actions. Because the current administration has launched an assault on the rule of law and the norms and practices of American democracy, officials in a position to blow the whistle on that effort are justified in doing so.

Walzer argues that “whistleblowers have a role to play in a democratic political universe” but that “it is an unofficial role, and one must recognize both its possible value and its possible dangers.” In general, that is and should be true. But it should not be difficult to see that today, the value outweighs the danger. 

Whistle-blowing is the exposure of illegal or improper activity, and it has been recognized as a legitimate part of American politics from the founding onward. (It was first given legal protection by the Second Continental Congress in 1778.) It has never been extended coherently and consistently to national security, however—a realm in which it can clash with another professional imper­ative, the duty not to reveal classified material to the public without authorization.

Extraordinary times demand extra­ordinary actions.

In the corporate world, protection of whistle-blowing has become increasingly formalized in legislation such as the 1986 amendments to the False Claims Act, the Sarbanes-Oxley Act of 2002, and the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. National security employees, however, were explicitly excluded from the Whistle­blower Protection Act of 1989, an exclusion ratified when Congress updated the act in 2012.

Extending whistleblower protection to the national security arena is admittedly a complex challenge. In ordinary circumstances, officials should not have the right to decide for themselves whether classified information should be made public. And even today, leaks such as the release of transcripts of the president’s conversations with foreign leaders do not constitute whistle-blowing, because the behavior revealed did not involve a gross violation of the rule of law. In such circumstances, Walzer’s invocation of the ethical calculus of civil disobedience is valid.

But when high officials in the executive branch who are sworn to uphold the law openly flout and subvert it, and Congress fails to exercise its oversight responsibilities, then internal channels of dissent atrophy and a whistleblower’s calculations change. When the rule of law itself is threatened, whistle-blowing can be necessary to defend liberal democ­racy as a whole. Illegal leaks that expose true betrayals of American democracy are neither partisan nor political. They are patriotic.

Within days of taking office, President Donald Trump fired Sally Yates, the acting attorney general, and a few months later, he fired James Comey, the FBI director. Since then, Trump has repeatedly tried to impede the investigation of Robert Mueller, the special counsel who is looking into Russian interference in the 2016 U.S. presidential election; attacked and slandered anybody who criticizes him or refuses to accept his claims of absolute authority; and polluted public discourse with a constant stream of lies. “Our whole system falls apart when the citizens of our country lose confidence in the justice system and the Department of Justice,” Yates would later say. “But almost from the very beginning [of the Trump administration], we’ve seen breaches of these rules and norms from the White House.” As a dedicated public servant confronting the danger firsthand, Yates came out in a different place than Walzer. Her recommendation? “When you see something happening that you [think] is wrong—and that’s different from something that you just don’t think will be effective—I encourage you to speak up.”

Yates was not alone in believing that these are exceptional times. An unprece­dented number of former senior officials from the intelligence and national security communities, of both political parties, have spoken out against what they consider a unique threat to American political culture and institutions. Many of their counterparts inside the system agree and feel obliged to cry foul themselves, as well—not on a whim or as an act of partisanship but to honor their own sworn oath to preserve, protect, and defend the Constitution. The anonymous author of the New York Times op-ed who claimed to be “working diligently from within to frustrate parts of [Trump’s] agenda and his worst inclinations” argued that accommodating Trump’s “amorality” was justified by the pursuit of a higher cause. But he or she failed to provide any new information that might have been used to uphold the rule of law. The author overlooked the philosopher Hannah Arendt’s warning that those who claim to be choosing the lesser evil often forget that they are nevertheless still choosing to do evil. 

As Hannah Arendt warned, those who claim to be choosing the lesser evil often forget that they are nevertheless still choosing to do evil.

In his classic Just and Unjust Wars, Walzer discusses the case of Arthur Harris, the leader of the United Kingdom’s Bomber Command and the architect of terror bombing raids on Germany. Walzer argues that in cases of supreme emergency, when the very existence of the state is at stake, it might be possible to fight unjustly for a just cause. (He cites Dresden and Hiroshima as examples.) But when the emergency has passed, he continues, moral order (and ordinary bureaucratic behavior) needs to be restored.

If such reasoning could encompass and excuse those strategically worthless, random massacres of vast numbers of unarmed civilians, how can it not—at least hypothetically—encompass and excuse the occasional unauthorized disclosure of accurate but classified information? Accepting that point allows the national discussion to turn to the real issue: whether Trump does indeed constitute a threat to the republic, and if so, what to do about it.

Once these unique depredations end, the leaking that is occurring in response will obviously need to end, as well. (There is every reason to expect it to, since there has never been any previous outbreak of such widespread whistle-blowing that anyone can remember.) And at that point, it will be possible to draw up the ethical balance sheets and assign everyone involved his or her proper penance. But until the immediate danger has passed, it makes sense to focus on the shocking substance of the information being revealed rather than the questionable means by which that information is coming to light. In short: don’t shoot the messenger; listen to the message.

ALLISON STANGER is Russell J. Leng ‘60 Professor of International Politics and Economics at Middlebury College and Scholar-in-Residence with the Cybersecurity Initiative at New America. Her forthcoming book is "Life, Liberty, and the Pursuit of Leaks: The Story of Whistleblowing in America."

 

WALZER REPLIES

These two responses to my article present an interesting contrast. Peter Feaver thinks that I am too ready to defend whistle-blowing; Allison Stanger thinks that I am not ready enough—indeed, she argues that we should all be encouraging whistle-blowing in these dark times. Criticized from both sides, I could just enjoy the comforts of the middle position. But I am not exactly in the middle; it’s more as if I am moving from side to side. I admire the nuance of Feaver’s response, and I share Stanger’s sense of urgency.

Feaver’s enhanced typology is helpful. I should have said more about “benign leaking” and about the way that officials use leaks for their own purposes. And I obviously could have said more about working within the bureaucracy and about the ways in which any given chain of command is open, or not, to internal protest. Feaver is a bit too sanguine about bureaucratic openness, but I agree that this should always be tested.

Feaver is wrong, however, to say that soldiers “should assume that orders coming down through the regular chain of command are legal.” The whole point of teaching military personnel the rules of engagement is to make it possible for them to know whether the orders are legal or not. And even in cases in which soldiers are not certain, they should assume that monstrously immoral orders are also illegal.

Feaver’s phrase “tidy morality tale” doesn’t accurately describe the hypothetical cases (let alone the actual cases) that I and other critics cite when defending whistle-blowing. Say, for example, that the U.S. president decided to use military force without congressional oversight or democratic debate. Such an action might fit an expansive definition of the powers granted to the executive branch by the U.S. Constitution, but it wouldn’t be an obvious fit. Internal protest and whistle-blowing might well be justified in such a situation, and to make such a judgment, one would rely not on morality tales but on answers to specific questions: Is this government policy legal or illegal, restrained or brutal? Is its violence necessary or gratuitous?

In some cases, the end (an informed public) will justify the means (whistle-blowing). What other justification is possible? Means are not self-justifying. A whistleblower aims to tell citizens in a democracy things that he or she believes they need to know—and if the whistleblower is right about the need, his or her aim does indeed justify the means.

Feaver concludes his critique by trying to explain “the prevalence of leaking today,” which he deplores. But his account of the causes of the prevalence—the lack of transparency, the overclassification of information, dysfunctional oversight—suggests strongly that, as Stanger argues, the leaking is not entirely deplorable. The conditions that explain it also sometimes justify it.

Stanger is certainly right to defend the exposure of “true betrayals of American democracy,” but she doesn’t tell us enough about what she means by “true betrayals.” Despite some qualifications, her argument has a wholesale quality. What is necessary, even in the age of Donald Trump, is retail analysis—case by case. Like Stanger, I would defend whistleblowers who exposed authori­tarian behavior that the public didn’t know about. But I would still insist on the conditions that I described in my article—that the act of the whistleblower expressed in all its aspects a democratic intention.

The official who wrote the anonymous New York Times op-ed is not a whistleblower.

I also need to clarify two points. Stanger wrongly suggests that in Just and Unjust Wars, I defend the British firebombing of Dresden during World War II and the U.S. atomic bombing of Japan as examples of “supreme emergency,” a phrase Winston Churchill coined in 1940 to justify violating Norway’s neutrality in the fight against the Axis powers by sinking Norwegian ships carrying ore to Germany. In fact, I condemn both actions, in Dresden and in Hiroshima, in very strong terms. Nor do I think that a doctrine as radical as “supreme emergency” is necessary to justify “the occasional unauthorized disclosure” of illegal or monstrously immoral government activity. Whistle-blowing should never be routine, but it doesn’t have to be an act of desperation.

Finally, I agree with Feaver’s and Stanger’s criticisms of the anonymous author of the New York Times op-ed. The official who wrote that piece is not a whistleblower. He or she doesn’t name any of the dangerous or immoral steps that Trump supposedly wanted to take but was prevented from taking by the author or others in the internal “resistance.” I, like Feaver, am opposed to anonymous writing of this kind. If I believed that the author were actually engaged in saving the republic, I would excuse the anonymity. I am inclined instead to believe that salvation will have to come from another place.

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