How the Courts Encourage Leaking

Earlier this month my former State Department colleague (and current Columbia Law professor) David Pozen posted a draft of his forthcoming Harvard Law Review article, The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information. It’s well worth a read (how many law review articles cite firsthand interviews with “anonymous government sources?”). He examines the leaky “culture” of the executive branch, concluding that leak prosecutions are relatively  infrequent because ‘leakiness’ advantages a variety of powerful institutional actors – particularly senior officials – who maintain plausible deniability at home and abroad. He also notes that an informal system of social control has largely supplanted formal prosecutions.

I think Dave is right. He does a good job of explaining why we don’t see more leak prosecutions, and why those we do observe tend to be for what he describes as “general” leaks (e.g., Bradley Manning and Wikileaks) rather than “specific” ones (e.g., what’s on the front page of the Washington Post and New York Times almost every day).

The article focuses on the executive branch, and so leaking plays out as intra-family struggle. Part of the executive branch leaks; others decide whether to prosecute. (As the article notes, one implication of this model is that the increase in leak prosecutions under Obama may be due to increased prosecutorial autonomy).

In addition to the executive branch focus Pozen takes, a recent D.C. Circuit Case emphasizes the degree to which the judiciary supports executive branch leakiness. In ACLU v. CIA, the D.C. Circuit held that the CIA could not issue a “Glomar response” (neither confirming nor denying the existence of records) to requests concerning the United States drone programs. The D.C. Circuit held that public statements by senior officials, including the President, officially acknowledged the existence of such a program.

Under the D.C. Circuit’s case law, in order to qualify as an “official acknowledgement,” the statement in question must involve “official and documented disclosure.” In other words, a leak – even a planted one by the executive branch (a “plant” in Pozen’s terminology, or in the middle-ground, a “pleak”) – doesn’t count.

And here we return to Pozen’s article. It’s not just the prosecutors who enable leakiness; the courts do too. By setting the bar for “official and documented disclosure” high, the courts allow the executive to continue leaking without fear of losing plausible deniability via a FOIA request. And unlike prosecutors who make decisions behind closed doors, the courts are more likely to confront the issue of when information becomes so widely “leaked” that its existence has to be acknowledged. After all, anyone can bring a FOIA request.

This relatively high bar for public disclosure (which was met in the recent ACLU case) often aggravates transparency supporters. But Pozen’s logic predicts that it may increase overall public disclosure of information. After all, if the executive branch were concerned about answering a FOIA request for leaked information (and thus losing plausible deniability), it might not leak as much. And as Pozen points out – recent spectacular examples to the contrary – leaking is more often a purposeful instrument of government than a slip up by the national security state.

This isn’t to say that the world we live in is optimal – after all, the executive gets to decide what, when, and how to leak (although some argue that it can do essentially the same in the national security arena under FOIA). But it’s clear that prosecutors aren’t the only ones maintaining the leaky leviathan. The courts do too.

Photo: Howard Hughes’s Glomar Explorer, the subject of the first Glomar response. (Credit: Wikipedia).

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3 Responses

  1. Lawrence Cunningham says:

    Fascinating. I wrote a little about the Glomar Marine in my recent book, The AIG Story, because AIG insured Hughes’ vessel (pictured) and mission, which was to recover a sunken Soviet sub full of secrets that would help the US in the Cold War.

    The LA Times broke the story and compromised the operation. AIG’s losses under the policy were limited to some personal injury claims.

    Both the leaks and the decision to publish were actions that helped the Soviets and hurt the American side in the Cold War.

  2. Aaron Zelinsky says:

    Larry,

    It’s a great story! I think (almost) every time a court discusses a Glomar response, it drops a footnote to Hughes (the most recent D.C. Circuit did it again).

    I thought there was also a problem with the operation itself; didn’t the sub break apart as they started lifting it from the bottom?

  3. Lawrence Cunningham says:

    Yes, the sub did break apart. Apparently some valuable assets (cryptology etc) would nevertheless have been recovered, but for the leak (which prompted the Soviets to change all their codes, natch).