CRF Blog

Daniel Ellsberg, Edward Snowden, and the Modern Whistle-Blower

by Bill Hayes

In Daniel Ellsberg, Edward Snowden, and the Modern Whistle-Blower for the New Yorker, Malcolm Gladwell finds striking differences between the two men.

In “The Leaky Leviathan,” a study published three years ago in the Harvard Law Review, David Pozen attempts to understand a puzzle. Strict laws prohibit government officials from disclosing secrets, yet leaking has been a constant feature of American political life. Since the passage of the Espionage Act, in 1917, the federal government has prosecuted only about a dozen cases concerning media leaks of state secrets. That’s an astonishingly small number. Pozen, a Columbia law professor, cites one estimate that, between 1949 and 1969, 2.3 per cent of the front-page stories in the Times and the Washington Post were based on government leaks. Another study looked at just the first six months of 1986 and found that a hundred and forty-seven stories in the country’s eight major newspapers were based on leaks. The entire career of Bob Woodward, perhaps the best-selling political writer of his generation, is based on leaks. And yet, with a few symbolic exceptions, nothing is done.

“For a crime that Presidents describe as a major threat to national security and good government, the degree of ‘underenforcement’ is stunning,” Pozen writes. “Even if we were to limit the denominator to classified information leaks that the Intelligence Community (IC) is known to have otherwise documented publicly — which may be a small fraction of the universe of potentially prosecutable offenses — the historic indictment rate for leak-law violators would be below 0.3%. The actual rate is probably far closer to zero.” Even the recent uptick in leak prosecutions during the Obama Administration, Pozen argues, does not alter the fundamental pattern. In Washington, giving away secrets to the press is a crime largely without consequences.

Pozen easily dispenses with the idea that Administrations don’t prosecute leakers because they can’t find them. They can: information — particularly sensitive information — has a pedigree. When I worked on the science desk at the Washington Post, my colleagues and I would read a front-page story by our counterparts at the Times and invariably know where the leak on which the story was based came from. The first order of business was typically to call the leaker and complain that he or she was playing favorites.

Pozen argues that governments look the other way when it comes to leaks because it is in their interest to do so. He cites a story that ran in the Wall Street Journal and the Washington Post in 2012 about how the C.I.A., with the coöperation of Yemeni authorities, was using drone strikes against Yemen-based Al Qaeda militants. The drone program was classified: that story didn’t come from a press conference. Pozen says the story was clearly a “plant” — that is, a leak made with the full authorization of the White House. Letting the facts slip out served a purpose for the Obama Administration. A plant like that, Pozen writes, “keeps the American people minimally informed of its pursuits, characterizes them in a manner designed to build support, and signals its respect for international law.”

But if you want to reserve your right to plant an authorized leak, Pozen argues, you have to allow unauthorized leaks as well: “For a strategy of planting to work, it is critical that relevant audiences not immediately assume that every unattributed disclosure they encounter reflects a concerted White House effort to manipulate the information environment. The practice of planting requires some amount of constructive ambiguity as to its prevalence and operation.” [more]

For a related classroom lesson on Edward Snowden, see “Edward Snowden, the NSA, and Mass Surveillance. It is available from  CRF’s Bill of Rights in Action Archive. It is currently only in PDF and you will have to register (if you haven’t already), which is free.