Loose Lips Sink Ships: The Difference Between Leakers, Whistleblowers, and Plain Old Criminals

The Twitter POTUS has filled his Administration with amateurs and old political hands with no direct loyalty to him. A combination of slip ups by the inexperienced and deliberate revelations by shocked professionals has produced a deluge of leaked information, the likes of which the Press has never seen. They, and we, have been delighted by the Trump White House’s informational unseaworthiness. However, since Donald Trump exposed an Israeli asset by sharing intelligence with the Russians, we have seen a slight shift in the public discussion of leaks. The Press has simultaneously glorified leakers of Trumpian misdeeds as patriots and condemned Trump himself  as a danger to international security for “leaking” intelligence to Russia. In the last week someone in the Trump Administration has also leaked information about the Manchester bombing of an Ariana Grande concert to the FBI, causing the United Kingdom to suspend intelligence sharing for 24 hours. The question is, has the Press been hypocritical in its treatment of leaks? The answer is no. The problem here is that we are using the same word – “leaks” – for a few different types of information dumps. There are three types of leaks going on here: personal leaks that irritate Donald Trump, leaks revealing government lawbreaking, and leaks revealing top secret information unrelated to government misconduct. Here are the differences, and why they are important.

Palace intrigue, or will Sean Spicer get fired this week?

Gossip, or “palace intrigue,” about what Trump is planning, thinking, or saying is what most people really mean when they say the Trump Administration has more “leaks” than past Presidencies, and they are the primary source of Trump’s fury. Here are some examples: in April Vanity Fair told us that Kellyanne Conway didn’t really have a defined job, and might be on her way out; we also heard that there is a behind-the-scenes war going on between Jared Kushner and Steve Bannon, and that Steve Bannon might get canned; now it seems that poor, abused Sean Spicer might be about to get the boot (after all, we’ve heard Trump didn’t like that Spicey was being played by a woman on Saturday Night Live).

The only person harmed by these revelations is Donald Trump, but he has very little ability to stop them, because the relevant information is not privileged or classified and the Supreme Court has made it almost impossible for a public figure, especially a politician, to sue the Press for defamation.  These leaks are completely harmless to the institutional stability of the United States, and they are source of gleeful schadenfreude to those of us who dislike Trump. However, the public discussion has failed to distinguish between these relatively harmless inside baseball reports and the types of information dumps that implicate the Press’s official role in our constitutional Republic.

Whistleblowing, or I don’t think we’re supposed to be bombing Cambodia

Whistleblowers are “leakers” who reveal information that is classified but alerts the public to some kind of government misconduct of which it is unaware. Accurately and responsibly reporting information provided by whistleblowers is the highest calling of the Press. New York Times v. United States, more commonly known as the Pentagon Papers case, made clear that the First Amendment allows the Press to print classified information it receives, so although it is illegal for a whistleblower to distribute the information to the Press, it is not illegal for the Press to distribute it to the people. Famous examples include Daniel Ellsberg, who leaked the Pentagon Papers, Mark Felt a.k.a. Deep Throat, who leaked aspects of the Watergate investigation, and Edward Snowden, who leaked information about the NSA’s surveillance of American citizens (he also belongs in the third category, though more on that later).

The hallmark of a true whistleblower is the revelation of an abuse of government power either against American citizens, or by one branch of government against the other. For instance, Daniel Ellsberg leaked the Pentagon papers because they proved not only that the Johnson Administration lied to the American people about whether Vietnam was winnable, but that Johnson lied to Congress, proving, to Ellsberg, the necessity of Congressional war powers.  Edward Snowden revealed that the NSA was collecting vast troves of data on American citizens without a warrant.  Mark Felt kept the Washington Post apprised of the progress of the Watergate investigation at the FBI, and was a huge part of Nixon’s eventual downfall. Imagine what would have happened if there had been no revelations to the public about Nixon’s dirty tricks, and he had been treated like a normal President? Do you think his henchmen would have flipped? I doubt it. It is the interaction of whistleblowers like Felt and Ellsberg with a Free Press that keeps our government as honest as we can make it.

Dirty leaking criminals, or guess who tapped Angela Merkel’s cell phone?

All leaks of classified information are crimes; when those leaks compromise the function of the US Government and our international relations, they can be catastrophically damaging, and the perpetrators should be treated accordingly.  It’s hard to discuss this issue without wading into the Edward Snowden controversy, so here I go: he’s not a hero, but he could have been, and he serves as a great illustration of the difference between whistleblowers and plain old criminals. There are about ten major revelations from Snowden. Two of them, alerting us to the collection of telephone metadata and PRISM, were legitimate blows of the whistle. Well done, Ed. The other eight (revealing the tapping of Angela Merkel’s phone, proprietary NSA technology, and spying by the British GCHQ in London) did not reveal government misconduct, they just told our adversaries how we operate and our friends that we can’t be trusted with information. These revelations perform no essential constitutional function; they are therefore inexcusable. The recent leak of information about the Manchester bombing falls into this category. There was no government misconduct there – the leaker was just delivering a scoop, and impeded a major counterterrorism action being undertaken by our closest ally. Trump’s revelation of information gained from an Israeli spy was hugely controversial for the same reason – he compromised an asset of a close ally for no reason.

Don’t let Trump lump leaks together

Going forward, it’s important to distinguish which type of leak is being discussed by the Trump Administration and in the Press. Does this leak involve classified information? If not, no one’s committing a crime, they’re just making Trump’s life difficult. If classified information or the contents of a criminal investigation are involved, is this information essential for an informed public to interact with government? All of the leaks and testimony about Trump’s involvement with Russia are important because the public needs to make electoral decisions with the full picture – it needs to approach Trump’s decisions vis a vis Russia with the proper context. However, if leaks of government information don’t serve the public, it’s important to support any Administration, even Trump’s, in rooting out the perpetrators. There is a difference between careful, deliberate revelations taken for the public good, and plain old loose lips. Loose lips can get people killed, and when there is no public good in the balance, deliberate revelations of classified information from allies is a serious crime, the prosecution of which we should all support.

 

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