State secrets and leaks: The current debate

Dennis Phillips

Rahul Sagar Secrets and Leaks: The Dilemma of State Secrecy, Princeton and Oxford, Princeton University Press, 2014 (281 pp). ISBN 978-0-691-14987-5 (hard cover) RRP $US44.95.

Edward Snowden, Bradley Manning, Julian Assange, ‘Wikileaks’—according to Australian political commentator Phillip Adams we live in ‘the age of the high profile whistleblower’ (Australian Broadcasting Corporation 2014). The vast reservoir of state secrets seems to have sprung so many leaks it threatens to destroy the very legitimacy of government secrecy.

When in 2013 Edward Snowden, a former Central Intelligence Agency (CIA) employee working as a government contractor, leaked news that the National Security Agency (NSA) was secretly collecting information on telephone calls made by millions of Americans, a public furore erupted over whether he was a heroic whistleblower or a ‘grandiose narcissist who deserves to be in prison’ (Toobin 2013). Fearing prosecution in the United States, Snowden fled first to Hong Kong then to Russia, while the debate over state secrecy and leaks continues unabated.

In a lively exchange in June 2013, John Cassidy and Jeffrey Toobin, both experienced writers for The New Yorker magazine, offered opposing points of view on Snowden’s widely publicised revelations. Cassidy declared that by revealing ‘the colossal scale of the US government’s eavesdropping on Americans and other people around the world, he [Snowden] has performed a great public service’ (Cassidy 2013). In a companion piece, Toobin charged that Snowden, in effect, had appointed himself as judge of what should or should not be considered a national security secret. Toobin pointed out the US government (or any government) simply could not function if all its employees and contractors decided to leak secrets and thus ‘take it upon themselves to sabotage the programs they don’t like’ (Toobin 2013).

What, then, is the proper role of state secrecy in a democracy? And, since secrets and leaks appear to be inseparable companions (where the first exists the other eventually follows), what, if any, is the appropriate role of the second? Most thoughtful citizens will acknowledge there is a proper role for secrecy in the affairs of state. To cite but one obvious example, President Franklin D. Roosevelt, General Dwight D. Eisenhower and allied commanders of the D-Day invasion of Normandy in June 1944 did not rush to share their advance planning secrets with the world media.

There is nothing inherently scandalous about either secrets or leaks.

If secrecy is not only advisable but essential in many matters of state, then the practice of leaking information may also play a key role in the pursuit and maintenance of justice and democracy. Among many other examples, the presidential administrations of Richard M. Nixon illustrate the importance of the unauthorised leaking of classified information. Reporters Bob Woodward and Carl Bernstein famously relied upon a secret source (‘Deep Throat’) for inside information about illegal activities within the Nixon Administration. More than thirty years later, long after Nixon was forced to resign in disgrace, Federal Bureau of Investigation (FBI) agent William Mark Felt was identified as that source (Bernstein 2005a, 2005b).

General readers introduced for the first time to the topic of state secrecy and leaks may be forgiven for assuming this is not a complex subject. After all, we all know governments keep secrets. Periodically and for various reasons, some of those secrets are leaked and eventually become public knowledge. In most instances no one gets very excited about this. Neither the secret nor the leak is particularly consequential. Even on important matters, the so-called ‘leak’ may be part of a deliberate strategy. For example, governments regularly leak selected details of pending budgets. This may be aimed either at softening the blow of a bad news budget or maximising the publicity of a good news budget.

There is nothing inherently scandalous about either secrets or leaks but, as the Snowden case illustrates, when it comes to questions of national security and/or significant government misconduct, state secrecy becomes a much more difficult problem. Presidents have a vital interest in maintaining secrecy on some national security issues; the public has an equally important interest in assuring state secrecy is not employed to hide misconduct. As President Nixon repeatedly demonstrated, when state secrecy is used to conceal wrongdoing, it can itself become a threat to democracy (Woodward & Bernstein 1994).

DOES STATE SECRECY THREATEN DEMOCRACY?

Rahul Sagar’s Secrets and Leaks: The Dilemma of State Secrecy is a detailed and thoughtful study of the intricate relationship among US executive power, state secrecy and national security. He begins the book with a brief but imposing question, ‘Does state secrecy threaten democracy?’ (p. 1). Confining his inquiry to the United States, Sagar acknowledges secrecy is frequently an essential aspect of successful presidential leadership. The key problem is how to assure executive secrecy is used responsibly. The question at the heart of the complex contemporary debate on state secrecy focuses less on whether or not state secrets should exist as on what type of regulatory framework will ensure that state secrecy is used to protect national security and not to conceal the abuse of power (p. 3).

Sagar cautions us at the outset that he is concerned with state secrecy and not problems related to secrecy in general. State secrecy poses ‘a great quandary’ (pp. 7, 204) for American democracy. The federal government cannot function properly without it, but so long as it exists, the ability of the nation to guard against its misuse may depend on the willingness of individuals to risk public recrimination and legal prosecution for blowing the whistle on official wrongdoing (p. 7).

Most judges are poorly trained and poorly informed when it comes to state security problems.

Sagar points out that while the 18th century authors of the US Constitution clearly expected the president to maintain secrecy on vital matters of state, such as the negotiation of treaties, the founders were far less clear on ‘how citizens and lawmakers could know whether the president is in fact exercising this power responsibly’ (p. 49). In other words, who watches the watchers?

REGULATORY FRAMEWORKS?

After explaining basic definitions and conceptual problems related to state secrecy (ch. 1, p. 16), Sagar undertakes a systematic search for an efficient regulatory agency or framework capable of assuring the responsible use of state secrecy. His search does not come to a happy conclusion: there seems to be many candidates for the job of grand regulator but on close examination, he finds none satisfactory.

Sagar turns first to the most obvious potential regulatory agent – judges and the judicial system. Given the key role the courts played in the Watergate affair and the eventual resignation of President Nixon, the judicial system would appear to be the most likely choice. After all, in July 1974 it was the US Supreme Court that ordered disclosure of Nixon’s White House tape recordings, which revealed that Nixon and his aides had attempted to ward off an FBI investigation by claiming the Watergate break-in was part of a secret national security investigation (p. 45). With such a high profile judicial precedent, it is logical to expect judges to play an important regulatory role when it comes to policing state secrecy.

Sagar, however, finds the judicial system wanting. Acknowledging that judges have often played a key role in revealing and curbing executive branch abuse of power, Sagar argues ‘judges are not well positioned to promote transparency’ or to serve as a court of last resort on executive abuse of power (p. 73). There are several reasons for this. In the American system, many judges are elected by popular vote and may preside accordingly. The infamous Senator Joe McCarthy began his sordid political career as an elected judge in Wisconsin (Griffith 1987, p. 4).

The nine members of the US Supreme Court are appointed by the President but each must also receive confirmation by the Senate. Most of these confirmation hearings proceed smoothly and end in a positive vote. Sometimes, however, both the candidate and the confirmation debate devolve into bitter political battles. Ronald Reagan’s 1987 attempt to appoint Robert Bork to the Supreme Court proceeded in acrimony and ended in a 58–42 Senate defeat (Sherman 2012).

In addition to the partisan political pressures that are so much a part of the American judicial process, Sagar points out most judges are poorly trained and poorly informed when it comes to state security problems. Judges have played an important role in determining the guilt or innocence of politicians accused of misconduct, but they lack the knowledge to oversee the responsible maintenance of state secrets. Particularly (but certainly not exclusively) in the American system, judges are also too easily influenced by political partisanship and pressure. Furthermore, if we acknowledge the vital role leaks can play in revealing government misconduct, it is also important to note how often ‘the practice of leaking violates the law and is therefore prone to suppression’ (p. 79).

If the judicial system cannot provide a reliable guardian of the integrity of state secrets, then what about the United States Congress? Indeed, on memorable occasions, Congress has moved to strengthen its hand on matters of national security. Here again, executive misconduct during the Nixon Administration promoted a burst of legislative activity. After a disgraced Nixon was forced to resign the presidency in 1974, Congress passed a number of measures designed to improve its access and supervision on national security matters. This included creation of ‘intelligence oversight’ committees in both the Senate and the House of Representatives. Congress also passed the Intelligence Oversight Act in 1980, a measure designed to keep select members of Congress fully informed on vital national security issues (p. 46).

Whistleblowers argue they are criticised for the ‘crime’ of telling the truth.

Sagar is characteristically blunt in his assessment of the effectiveness of these measures: they failed. In the 1980s, during Ronald Reagan’s second term as president, information leaked that Reagan had ‘secretly facilitated the sale of arms to Iran, [and] covertly provided support to the Contras in Nicaragua in violation of the law’ (p. 46). More recently, Congress has preferred to look the other way when the executive branch used secret prisons, ‘extraordinary rendition’, warrantless surveillance and the collection of meta-data (pp. 49–50).

WHISTLEBLOWERS?

Ironically, the main source of public knowledge on many recent and controversial government programs has come from unauthorised disclosures by officials, reporters and publishers who potentially placed themselves at legal risk. It is little wonder many whistleblowers argue they are being criticised, even prosecuted, for the ‘crime’ of telling the truth.

If neither the courts nor Congress can provide protection from executive abuse of state secrecy, doesn’t the US Constitution’s famous First Amendment guarantee of free speech effectively play that role? Some well-known historical events appear to answer that question affirmatively. For example, in June 1971 The New York Times published The Pentagon Papers, a classified study of government decision-making during the Vietnam War. The study revealed executive branch officials had repeatedly lied to the public and to Congress about the progress of the war (pp. 44–45). The Pentagon Papers became public when a government contractor, Daniel Ellsberg, turned whistleblower and the US Supreme Court refused to restrain the Times from publishing this previously secret record of the war (p. 103).

Whistleblowers like Ellsberg have occasionally played an important role in revealing hidden truths about malfeasance in American politics and foreign policy, but Sagar reminds us we can no more rely on whistleblowers than judges or politicians when it comes to monitoring state secrecy (pp. 5–6, 127). There are numerous reasons for this. The possibility of someone ‘blowing the whistle’ may serve as an effective deterrent to official wrongdoing, but very few officials or informed ‘insiders’ have an incentive to go public with what they know. For starters, they may not know enough. They may have part of the puzzle but still not see the whole picture. Former Secretary of Defense Donald Rumsfeld was mocked when he referred to ‘unknown unknowns’, but this is just a bureaucratic way of describing the fact most of us are blissfully unaware of the scope of our own ignorance (Rumsfeld 2009).

Sagar reminds us that whistleblowing, like the act of leaking classified information, is itself ‘prone to grave abuse’ (p. 6, 127). Members of the press routinely take a ‘trust us’ stance when they report on ‘reliable’ leaks, but Sagar argues we have no more reason to automatically trust reporters, editors and publishers than we do politicians. Media outlets of all types may claim to be fair and balanced, but the claim is often undermined by their performance. The uncomfortably irony is that we depend on whistleblowing and leaking because they do sometimes provide ‘an effective, credible, and legitimate means to combat the abuse of secrecy’ (p. 184), but they are certainly not failsafe.

Conclusion

Where, then, does all this lead us? Rahul Sagar’s Secrets and Leaks does not have an optimistic ending. Sagar devotes a chapter each to why we cannot depend on judges, Congress, unauthorised disclosures, whistle-blowers or leaks as a regulatory mechanism to guard against the abuse of state secrecy. He concludes that neither individually nor collectively do these tools provide a reliable oversight framework to assure state secrecy is used responsibly.

According to Sagar, the necessary existence of state secrecy and the unauthorised leaks that inevitably follow pose an unresolvable dilemma for democracy. The dilemma is not so much who or what should regulate state secrecy as it is facing the reality that we are forced to rely ‘on a regulatory weapon that has the tendency to backfire at least as often as it finds its target’ (p. 204). That regulatory weapon involves the use of unauthorised disclosures or the leaking of classified information. This, in turn, presents the public with the near impossible task of discerning when an unauthorised disclosure is accurate and reliable and when it is not.

Secrets and Leaks is a book for readers with a special interest.

Sagar argues there is no satisfactory way to resolve this dilemma. He points out the only tools we have to monitor the use of state secrecy do not fit comfortably with ‘our moral and political values, especially not with key democratic norms’ (p. 3). Despite the potential for exaggeration and misuse, the possibility of unauthorised disclosure is the best check we have that individuals and groups who possess authority over state secrets cannot systematically abuse that power and twist it to serve their own ends (p. 5). Sagar suggests we should abandon ‘platitudinous calls for transparency’ and focus instead on strengthening the admittedly imperfect tools we have to check the wilful abuse of state secrecy (p. 204)

Platitudinous or not, books related to the topics of state secrecy and leaks continue to roll off the presses at a startling rate. Because he recognises the ambiguity of the problem and has no particular barrow to push, Sagar’s is more insightful than most. For readers with a genuine interest in the subject, Secrets and Leaks is a good place to start. This is not a book for specialists, but it is a book for readers with a special interest. Due in part to its precision and its ability to make a complex topic clear and comprehensible, this book has received a generally favourable response from reviewers. Writing in The New Republic, Eric Posner concludes Sagar’s book basically ‘amounts to a defense of the status quo – where there is an equilibrium between government efforts to stop leaks and press efforts to spring them’. Even though the Snowden leaks occurred just as Sagar’s ‘excellent book’ went to press, the Snowden case illustrates yet again the perennial conflict between state secrecy and leaks (Posner 2013).

Reviewing Secrets and Leaks for Lawfare, Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, praises Sagar for his ‘fresh, original and provocative contribution’ to the complex problem of state secrecy (Aftergood 2014). Writing in Foreign Affairs magazine, Jack Shafer, a columnist for Reuters, admires Sagar’s research effort but criticises him for ‘overestimating the damage leaks cause and underestimating how hard it will be to stop them’ (Shafer 2014).

The final word, however, goes to Gabrielle Appleby whose insightful review in ‘Inside Story’ contains an excellent critique of the strengths and weaknesses of Secrets and Leaks, including an interesting discussion of aspects of Sagar’s work relevant to Australia. Appleby, a senior lecture in the Adelaide Law School at the University of Adelaide, concludes Australia would benefit from more widespread public discussion of the numerous problems discussed in Sagar’s book: ‘we need to acknowledge the part played by leaks and confront the dilemmas of how we can encourage and protect leakers without unnecessarily sacrificing national security interests’ (Appleby 2014).

REFERENCES

Australian Broadcasting Corporation 2014, ‘The age of the high profile whistleblower’, Late Night Live, Radio National, 4 March [Online], Available: http://www.abc.net.au/radionational/programs/latenightlive/whistleblowers/5296906 [2014, May 20].

Aftergood, S. 2014, ‘Book Review: Secrets and Leaks the Dilemma of State Secrecy by Rahul Sagar’, Lawfare Blog, 3 April [Online], Available: http://www.lawfareblog.com/2014/04/secrets-and-leaks-the-dilemma-of-state-secrecy/ [2014, May 20].

Appleby, G. 2014, ‘Grey zone’, Inside Story: Current Affairs and Culture from Australia and Beyond, 17 January [Online], Available: http://inside.org.au/grey-zone/ [2014, May 20].

Cassidy, J. 2013, ‘Why Edward Snowden is a hero’, The New Yorker, 10 June [Online], Available: http://www.newyorker.com/online/blogs/johncassidy/2013/06/why-edward-snowden-is-a-hero.html [2014, May 20].

Griffith, R. 1987, The Politics of Fear: Joseph McCarthy and the Senate, 2nd edn, The University of Massachusetts Press, Amherst.

Posner, E. 2003, ‘Before you reboot the NSA, think about this’, The New Republic, 6 November [Online], Available: http://www.newrepublic.com/article/115291/rahul-sagars-secret-leaks-reviewed-eric-posner [2014, May 20].

Rumsfeld, D. 2009, ‘Unknown Unknowns!’, video, 7 August [Online], Available: http://www.youtube.com/watch?v=GiPe1OiKQuk [2014, May 20].

Shafer, J. 2014, ‘Live and let leak: State secrets in the Snowden era’, Foreign Affairs, vol. 93, no. 2 [Online], Available: http://www.foreignaffairs.com/articles/140754/jack-shafer/live-and-let-leak [2014, May 20].

Sherman, M. 2012, ‘Robert Bork nomination fight altered judicial selection’, Huffington Post, 19 December [Online], Available: http://www.huffingtonpost.com/2012/12/19/robert-bork-nomination_n_2332933.html [2014, May 20].

Toobin, J., 2013, ‘Edward Snowden is no hero’, The New Yorker, 10 June [Online], Available: http://www.newyorker.com/online/blogs/comment/2013/06/edward-snowden-nsa-leaker-is-no-hero.html [2014, May 20].

Woodward, B., 2005a, ‘How Mark Felt became Deep Throat’, The Washington Post , 2 June [Online], Available: http://judicial-discipline-reform.org/docs/Mark_Felt_Deep_Throat.pdf [2014, May 20].

Woodward, B., 2005b, The Secret Man: The Story of Watergate’s Deep Throat, New York, Simon & Schuster.

Woodward, B. & Bernstein, C. 1994, All the President’s Men, 2nd edn, New York, Simon & Schuster.

Prior to retirement, US-born Associate Professor Dennis Phillips taught American politics and history at The University of Sydney and Macquarie University in Sydney, Australia.