Congressional Democrats are demanding answers after recent reports that the Department of Justice under then-President Donald Trump subpoenaed communications and metadata from them and reporters in a leak probe. Meanwhile, Reality Winner, the former National Security Agency contractor who was convicted in 2018 of leaking documents to The Intercept, was released from prison early on Monday.
In the United States, who has the power to determine what should be secret?
The two cases may seem unconnected, but they share at their core a simple question, one at the heart of every debate about whistle-blowers, leakers, government transparency and sealed investigations: In the United States, who has the power to determine what should be secret?
As far as the law says, there’s an easy answer: the executive branch. Those closest to the secrets should know best what needs to be secret, the courts have ruled time and time again, including in a 1953 precedent-setting case, Reynolds v. U.S. But that case, in which prosecutors cited its secrecy prerogative to avoid a trial about negligence, is now widely recognized to have been based on a fountain of executive branch lies.
We’re now at an inflection point. Put in the boiler of post-Trump politics and we’re suddenly in a liminal period where the administration can decide, on its own, to give up some of the tight control the executive branch has long held over secrets. President Joe Biden seems to have moved in that direction, promising that journalists will no longer be targeted for their records — but my bet is that there will be clarifications to Biden’s statement in the near future and that the change promised will not be as favorable as it originally appeared.
It may feel tempting to blame the recently reported overreach on Trump’s excesses. But while the volume might have been higher, career prosecutors during the Obama administration, feeling the pressure to crack down on disclosures of classified information, also initiated prosecutions that trouble journalists — like the ones that treat reporters as co-conspirators.
It may feel tempting to blame the recently reported overreach on Trump’s excesses.
The leviathan of government, in the words of the secrecy scholar David Pozen, is leaky by design. The exchange of classified information helps lubricate policy debates, gives the executive branch a way to rebut criticism, provides individual officials a way to prosecute grievances, and, ultimately, acts as a mechanism for accountability via the press. This system was taxed after the Sept. 11 attacks, nearly collapsed after Edward Snowden’s revelations about the NSA’s domestic spying in 2013, and, we have come to learn, was wielded like a sword against journalists during the Trump administration.
By no means was this design ideal: Because the classification system is designed to protect and fortify controversial policies at the highest levels, low-level employees who disclose classified information are prosecuted easily “as a deterrent,” while jail time for high-level offenders, including former Vice Chairman of the Joint Chiefs of Staff James Cartwright and former CIA Director David Petraeus, both retired generals, is off the table. Assessing their cases alongside Winner’s is a recipe for confusion. All were theoretically illegal — but none of their disclosures proved materially harmful and the government’s response in each didn’t seem to deter much of anything.
Which brings us back to Biden’s pledge and the many questions it leaves unanswered: If journalists no longer will find their records seized, have they acquired some sort of privilege? Can they assert it in court? Who determines who is a journalist? Will anyone who performs the function of reporting and discloses a secret be immune from prosecution? Will journalists assert some sort of credentialing system to separate those who operate in good faith from those who might work with a foreign adversary? And what about the speech rights of propagandists? Will the answer ultimately depend on the secret that’s disclosed?
These questions are debated; I have been writing about them for years, and there is no consensus, not even among journalists. Because they are so hard to answer, the government does not even try. The Justice Department has formal rules for obtaining the records of reporters, but it does not have a statutory definition of what constitutes legitimate reporting. (As a journalism school professor, neither do I — which is why this question is hard!)
The leviathan of government, in the words of the secrecy scholar David Pozen, is leaky by design.
By default, the balance of power often flows back to the government’s control of information. One reason is that the national security bureaucracy asserts, rightly, that there has to be some formal threat of criminal prosecution for every potential leaker, because its absence would obviate the entire classification system itself. Anyone who holds a security clearance could then act as a conscientious objector, individually determining whether a particular secret is in keeping with good policy and good value. There would be nothing the government could do then to prevent a thousand Snowdens — which may be, depending upon your point of view, a good thing.
The better way forward here, in my view, will still unsettle the national security bureaucracy, just in other ways. Congress should meaningfully reform current whistle-blowing statutes to avoid incentivizing retribution, create large islands of immunity for clearance-holders who disclose to inspectors general, and punish managers who retaliate against dissenting employee.
It should also fortify congressional oversight of the classification system and its abuse. The Biden administration should meanwhile hire thousands (yes, thousands!) of Freedom of Information Act processors and empower them to challenge agency-specific interpretations of exemptions that don’t favor the disclosure of information.
Finally, Congress should pass a qualified shield law for journalists, taking care to define, clearly, terms like “national security,” and “properly classified,” and forcing the government to spell out, not using generalities, the harms to safety and security that their classification system protects against. It would require the government to prioritize and protect information that is truly detrimental, and it would reduce the likelihood that a future president could, by statement or pressure, use lawyers for the secret state to punish enemies.
There are lots of details to haggle out, but there are also lots of good proposals floating around that are worth considering. Previous efforts at reform have fallen short and, as opponents of change would argue, any law or rule change will have repercussions that we can’t anticipate. But until we take a step forward, we will be mired in the muck of the past, unable to separate out whistle-blowers seeking to protect the country and its values from people seeking to harm the nation’s interests.
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