“It’s Only A Leak”

All leaks are not created equal.

J.K. at Media Matters saves me some trouble by reviewing almost all the latest wingnut talking-points on the Valerie Plame Wilson affair.

The MM rundown brushes quickly past the talking point that might be called “It’s Only a Leak.” IOAL comes in at least three different flavors: Leaks Are Common, Leaks Are Harmless, and Leaks Are Good. What they have in common is the dishonest elision between a vast variety of harmless and useful activity that can be called “leaking” and the extraordinarily rare and damaging activity undertaken by the White House Iraq Group against Valerie Plame Wilson.

Information can be said to “leak” anytime two or more people are trying to keep a secret and one of them blabs. Since secrets about how a democratic government runs should be considered noxious until proven justified, in that sense most leaking is indeed A Good Thing.

But some leaking is illegal, because the information given out is protected by law. That includes tax-return information and other private information about private citizens, grand jury testimony, and classified information. Illegal leaks are less common that legal ones, but they’re common enough.

There is little dispute about the impropriety of leaking private information.

The justification for keeping grand-jury testimony secret seems to me perfectly sound; a grand jury witness, interrogated without a lawyer present, is unusually vulnerable, and prosecutors can use leaks to embarrass witnesses who invoke of the Fifth Amendment privilege against self-incrimination. As far as I can tell most reporters accept grand jury leaks if they can get them, and no reporter ever writes an investigative story about how information protected by law got to one of his professional colleague/competitors. I wish there were more attention paid to violation of the law by prosecutors and the investigators who work with them.

Of course, the obligation to keep grand jury matters secret applies only to the grand jurors themselves, the prosecutors, and the investigators with whom the prosecutors share the information. There is no obligation on a witness not to do what Matt Cooper did by publishing a full account of the questions he was asked and the answers he gave. And if the witness chooses to talk to his lawyer (who is not allowed inside the grand jury room), the lawyer’s duty of confidentiality extends only as far as his client’s interests and preferences; if a lawyer talks about his client’s grand jury testimony, on or off the record, he isn’t violating the rule of grand jury secrecy. (A prosecutor may request witnesses to hold their peace in order to keep from tipping off the suspects, but that request isn’t a legally binding order.)

So the claim that “everything everyone thinks they know about Patrick Fitzgerald’s leak investigation has been leaked” is not just stupidly irrelevant but false-to-fact: to my knowledge, nothing has leaked from the investigation, and everything we know or think we know comes from the accounts of witnesses and their lawyers.

The legitimately controversial category of illegal leaks involves the disclosure of classified information. Yes, that activity fairly common, and yes, it’s usually harmless and frequently beneficial, because most secret information wouldn’t actually damage the national security were it revealed, and much of it is classified solely to avoid embarrassment to officials and their policies.

But the difference between the Espionage Act and a true Official Secrets Act is that the Espionage Act punishes only potentially harmful leaks: “reason to believe that the information could be used to the injury of the United States” is one of the elements of the offense. “That information couldn’t have been used to damage the country” is a complete defense against an Espionage Act charge, if the defendant can show evidence for it.

But of course the identity of a CIA NOC is obviously the sort of information whose disclosure is likely to damage the national security. And the fact that some clever detective work by a foreign intelligence agency might have been able to ferret out that information is neither here nor there. Secrecy, unlike pregnancy, has degrees; it’s possible for an undercover officer’s cover to be potentially blown, or a little bit blown, or somewhat blown, or (after Robert Novak publishes her name, her CIA affiliation, and the name of her “cover” employer) blown to smithereens. The fact that Moscow Center had perhaps heard of Valerie Plame doesn’t mean that the Pakistani or Nigerian or Iranian secret police knew about her.

It’s Only a Leak has been in use almost since Day One: GWB’s first reaction to the report that someone working for him had outed a NOC was to denounce “leaks of classified information.” From the perspective of the Bush Administration, identifying the problem as “leaks of classified information” serves two purposes: trivializing the appalling breach of national security that occurred in this case, and building support for tougher measures against leaks that are beneficial to the nation but harmful to the kleptocrats now running it and to their allies abroad. (The Bush Administration has already sent a DEA analyst to prison for revealing that a Tory Party bigwig was laundering drug money; none of those mouthing It’s Only A Leak now seems to have protested then.)

It’s perfectly understandable that people who like tax cuts for the rich, loosening of environmental regulation, weakening the power of labor unions, “tort reform,” tightening bankruptcy rules, Social Insecurity, right-wing nominees to the Supreme Court, and neocon foreign policy adventures should hope that the Bush Administration and the Republican Party emerge from this scandal as little damaged as possible, just as those of us who dislike those policies should hope for as much damage as possible.

But, like some of the liberal attempts to explain away Bill Clinton’s zipper problem and its legal complexities, conservative attempts to explain away the disclosure of Valerie Plame Wilson’s identity as a CIA officer ought to be embarrassing to those who are forced to offer them. As John K. Kennedy famously said, “Sometimes party loyalty demands too much.”

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com