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The Legal Regime and Political Ramifications of Leaks

The Legal Regime and Political Ramifications of Leaks

Introduction

Leaks of sensitive information to the public have plagued presidential administrations since George Washington. The modern system of leaks began in 1957 when Colonel John C. Nickerson was prosecuted for “perjury, violating the Espionage Act, and 15 counts of security violations.” Multiple other big name leaks have occurred including the Pentagon Papers, the Chelsea Manning leaks, the Edward Snowden leaks, and most recently the Democratic National Committee and Donald Trump Administration leaks.

The severity of punishments for these whistleblowers ranges from no charges for the Pentagon Papers case, to multiple years in prison for Chelsea Manning, to self-imposed exile for Edward Snowden. The laws surrounding leaks and whistleblowers are complex and laxly enforced. The following sections will clarify where the laws on the books stand regarding leaks, how investigations occur, why leaks lack strong enforcement, the political nature of leaks, and the current Donald Trump Administration’s stance on leaks.

Clarification of the Law

The law surrounding government leaks revolves broadly around five U.S. statutes. These are the Espionage Act of 1917, 18 U.S.C. § 798 which applies to communication intelligence, the Intelligence Identities Protection Act, the general theft statute 18 U.S.C. § 641, and 18 U.S.C. §1001 which relates to false statements made during investigations.

The bulk of leak prosecutions rely on the Espionage Act, specifically 18 U.S.C. § 793. The Espionage Act prosecutes leaks of “national defense information” (note that this does not specify classified information). However, the Supreme Court has ruled that national defense information does not only pertain to the military, but security in general. Professor Patricia Bellia from Notre Dame Law School writes that “… the ‘phrase national defense information’ … is not coterminous with the phrase ‘classified information’.” However, she also notes that the classification status of a document can imply that the document contains information relevant to national defense, and therefore is evidence against the person who committed the leak.

To build upon the Espionage Act, 18 U.S.C. § 798 adds to the list of information that can be prosecuted. Under this law further classified information is protected, including “information ‘concerning the communication intelligence activities of the United States or any foreign government’.” This would cover diplomatic communications, not just military communications. Further protected are the identities of covert agents under the Intelligence Identities Protection Act. For an example of this act in action, take a look at John Kiriakou’s case regarding the CIA’s interrogation methods.

The last two laws relate to prosecutions for crimes unrelated to the actual information that leaks contain. 18 U.S.C. § 641 protects the physical documents that contain the information, regarding them as government property that can be stolen. Lastly, 18 U.S.C § 1001 has the power to prosecute an individual for making false statements during the course of an investigation. Many are prosecuted for 18 U.S.C. § 1001 because it is easier to prove than the other statutes.

The Nature of Leaks and Their Investigation

A big issue for the government when investigating leaks is what opening an investigation implies. When an agency harmed by a leak and becomes a “victim agency,” they will send a complaint to the Department of Justice. The decision to open an investigation is left to the discretion of the DOJ. The catch is that an investigation will only be opened “when the leaked information is accurate.” Opening it otherwise would make no sense, since it would not be a leak, only a made up statement that anyone could produce. The implication of this leads us to the realization that once an investigation is opened regarding leaked information, the truth of the information is confirmed to the public. The enforcement of laws protecting government information has been lax due to this issue, but also because leaks can be beneficial to the same government that is harmed by them.

Aside from the unauthorized disclosure of information, there are “authorized leaks.” Authorized leaks are strategic releases of information used to “avoid damaging errors or to protect sensitive information or sources from further disclosure.” Therefore, the disclosure of information can be beneficial to the government, public, and press. A quote from the Chicago Tribune puts it best:

[The government] needs leaks as much as the press does. The legitimacy of government requires sunshine and the practice of governance sometimes requires darkness — and in the face of that contradiction, leaks are a kind of informal workaround.

Aside from the leaks most detrimental to the government, law enforcement is rather permissive due to their dual nature.

The Donald Trump Administration

Donald Trump and his administration have changed the way the government uses leaks from previous administrations. Leaks from the White House regarding improprieties with former National Security Advisor Michael Flynn’s contacts with Russia were met by counter leaks in the other direction by the Trump Administration. Instead of using leaks to reveal truth, or make an administration look good (as was the case when the Osama Bin Laden raid was made known to the public in 2012), his leaks have been used to obscure the truth about improprieties. The obsession with finding the whistleblowers within the Trump administration has also led many staffers to use a confidential conversation app, in violation of the Presidential Records Act, to hide evidence of leaking.

The President’s Stance on Leaks

Leaks helped Donald Trump win his Presidency. During the election he praised Russia for hacking the DNC, and called for more leaks. The President was in support of a foreign power using illegal means to influence a U.S. election in his favor, a charge which is more serious than simple leaks that inform the public of policy, according to a recent Politifact article by Louis Jacobson.

In 2013, President Trump tweeted “ObamaCare is a disaster and Snowden is a spy who should be executed-but if it and he could reveal Obama’s records, I might become a major fan.” Now, the President is criticizing the New York Times and the intelligence community for the leaks. The conclusion that Jacobson reaches in his article is that the President does not have a stance on leaks, whistleblowing, unauthorized disclosures or however you would like to refer to them. The President did not flip-flop on this issue. “Flip-floppers change their mind; Trump has showed that he doesn’t have a stance on leaks independent from his interests.”

Conclusion

The law surrounding government leaks is complicated enough as it is, and adding in the discretionary prosecution and juxtaposition of benefit and harm to the administration further muddles the field. I hope that this article helped clear-up the major laws that regulate this field, and why they are not being used as much as they could be. I further intended that the mindset behind the current administration’s behavior regarding leaks has been at the very least sufficiently introduced for further consideration.

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