Academic journal article Harvard Law Review

The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information

Academic journal article Harvard Law Review

The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information

Article excerpt

CONTENTS  INTRODUCTION  I.   WHAT WE KNOW (AND THINK WE KNOW) ABOUT LEAKS        A. The Legal Framework        B. Leaking Practices        C. Enforcement Practices        D. Consequences  II.  ORDER IN "DISORDER": THE LOGIC OF LEAKINESS        A. The Inadequacy of the Constraint-Based Narrative           1. Catching Culprints           2. Bringing Cases           3. Additional Evidence        B. Leaking's Systemic Rewards           1. Plants Need to Be Watered--with Leaks           2. Plants, Leaks, and Pleaks           3. External Signaling and Executive Self-Binding           4. Manufactured Scarcity and Intragovernmental                Communication           5. Pacifying and Coopting Powerful Groups  III. "ORDER" IN DISORDER: DISCIPLINING LEAKERS WITH AND        WITHOUT LAW        A. Internal Signaling and Informal Sanctions        B. Senior Officials, Junior Officials, and Mixed             Deterrence        C. Substantive Norms  IV.  SOME NOTES ON LEAKINESS AND EXECUTIVE POWER        A. Revisiting the Source/Distributor Divide        B. Silver Linings and Media Narratives        C. Seeing Like a National Security State        D. Democracy, Discourse, and Rule of Law        E. Comparative Convergence, Obama's Uptick, and the             Road Ahead  V.   CONCLUSION 

INTRODUCTION

Ours is a polity saturated with, vexed by, and dependent upon leaks. The Bay of Pigs, the Pentagon Papers, warrantless wiretapping by the National Security Agency at home, targeted killings by the Central Intelligence Agency abroad: the contours of these and countless other government activities have emerged over the years through anonymous disclosures of confidential information to the press. (1) Across the ideological spectrum, many Americans believe both that leaking "is a problem of major proportions" (2) and that "our particular form of government wouldn't work without it." (3) Episodically, leaks generate political frenzy. The country is in such a period at this writing. Mass releases of classified defense documents and diplomatic cables through WikiLeaks, followed by a series of news stories about some of the government's most closely held national security programs, have unleashed a torrent of legislative and media responses, of recriminations and justifications. This "latest outbreak of leak panic" (4) will soon fade; a new iteration will arrive in due course.

Our comprehension of leaking has not kept pace with our fascination. Even accounting for the secrecy that obscures its workings, the ratio of heat to light in commentary on the subject is extreme. Some valuable progress has been made. Journalists and ex-officials have chronicled the role of leaks in their work. Students of government and the press have limned leaks' different forms and motivations. Legal theorists have considered the First Amendment implications. Yet for a variety of reasons, the literature reflects only a rudimentary understanding of leaks' consequences, inside and outside government. (5) More surprising, because the questions are more tractable, scholars have devoted scant attention to the constitutive elements of the leak, as a legal and bureaucratic concept, or to the policies the executive branch has developed to enforce relevant prohibitions. We know something about the phenomenology and constitutionality of leaks but next to nothing about how the government deals with them.

This Article begins to reveal that world. Drawing on a range of theoretical perspectives and original sources--interviews with journalists and executive branch officials, plus records requested through the Freedom of Information Act (6) (FOIA)--it offers the first sustained account of the regulatory regime applicable to leaking. Superficially straightforward, this regime turns out to be an intricate ecosystem. At the most general level, the Article demonstrates that the story behind the U.S. government's longstanding failure to enforce the laws against leaking is far more complicated, and far more interesting, than has been appreciated. …

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