Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
October 22, 2014

Abstract of the Week

Government leaks and whistleblowers have driven a significant amount of policy and political news lately, with revelations about the National Security Agency’s spying programs, the scandal at the Internal Revenue Service, and the government’s efforts to crack down on reporters in contact with leakers. David Pozen has a new paper forthcoming in the Harvard Law Review digging into when and why the government approves or disapproves of leaks.

“The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, fewer than a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.”

“This article challenges the standard account of this disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances an alternative theory of leaking. The executive branch’s ‘leakiness’ is often taken to be a sign of institutional failure. The article argues it is better understood as an adaptive response to external liabilities (such as the mistrust generated by presidential secret-keeping and media manipulation) and internal pathologies (such as overclassification and bureaucratic fragmentation) of the modern administrative state.”

“The leak laws are so rarely enforced not only because it is hard to punish violators, but also because key institutional actors share overlapping interests in maintaining a permissive culture of classified information disclosures. Permissiveness does not entail anarchy, however, as a nuanced system of informal social controls has come to supplement, and all but supplant, the formal disciplinary scheme. In detailing these claims, the article maps the rich sociology of governmental leak regulation and explores a range of implications for executive power, national security, democracy, and the rule of law.”

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