The rate of prosecution of government leakers has reached unprecedented heights under President Obama, twice that of every other president combined. It's been called a 'war on leakers'. But is it? Columbia Law professor David Pozen, author of The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, tells Brooke that when you consider the total number of government leakers - less then 1% are punished.
BOB GARFIELD: This is On the Media. I'm Bob Garfield.
BROOKE GLADSTONE: And I'm Brooke Gladstone. And here’s MSNBC's Rachel Maddow telling us some of what we know about drones and how we came to know it.
RACHEL MADDOW: The closest we have come to learning about how the Obama administration justifies drone strikes is this: In the fall of 2011, New York Times reporter Charlie Savage wrote this story. This is about a week after Awlaki was killed, Awlaki, the U.S. citizen who was killed in Yemen. And the story describes a super-secret 50-page memo written by an office within the Justice Department that effectively serves as the Obama administration’s legal justification for why they think it’s okay to kill an American citizen without a trial. Now, the New York Times did not actually get to see this memo. They did not publish the memo, nor did they quote from it directly. The memo was described to the reporter by anonymous sources.
BROOKE GLADSTONE: In other words, the information came from a leak. We also know that the government is engaged in an unprecedented crackdown on leakers. In Obama's first term, the Justice Department prosecuted six of them, twice as many as all the previous administrations combined. Many call it a war on leakers, intended to send a signal that leaking and its kissing cousin, whistleblowing, will not be tolerated. But is it a signal?
Columbia University Law Professor David Pozen also is concerned about the uptake in prosecutions, but he says it may be obscuring what's really going on. His article, “The Leaky Leviathan,” to be published in December's Harvard Law Review, notes that the number of leak prosecutions is unprecedented –
PROF. DAVID POZEN: But relative to the volume of potentially prosecutable leaks, it’s a very small number. There was a nice study done recently that if you just take as a denominator leaks that we know to have been referred to the Justice Department for potential criminal action, something like 0.3 percent have been prosecuted in recent years.
BROOKE GLADSTONE: If they’re only pursuing .03 percent, why isn’t the government going harder after leakers than they do?
PROF. DAVID POZEN: I think an important place to start is with the distinction some journalists draw between what they call “plants” and what they call “leaks.” Plants are the authorized informal anonymous disclosures that serve administration ends, leaks are the unauthorized disclosures. Plants are a critical tool for modern government for sending signals to allies and adversaries, floating trial balloons. They're not an incidental practice of a few craven officials. They’re a mode of governance, especially in national security and foreign affairs where so much of the relevant material is classified.
BROOKE GLADSTONE: Can you give me an example?
PROF. DAVID POZEN: Well, a lot has come out about the administration’s drone program in places like Pakistan and the Horn of Africa. It's hard to know who said what, but these news stories have released a lot of information about what the program is meant to do, rules and standards it ostensibly follows. Whatever you think about the secrecy surrounding that broader program, there's no doubt that those disclosures have informed the American public to some pretty significant degree about what's happening. So, if that's right, that planting is an important practice for any modern administration, for a strategy of planting to work, you need to allow – at least so I argue - some significant amount of leaking to happen, as well.
Why? Because if the government regularly went after all the unauthorized disclosures, we would quickly become conditioned to think that everything we, we hear from anonymous government sources is really a plant.
BROOKE GLADSTONE: What you're saying is that if they were to pursue leaks aggressively, then the leaks that appeared in the paper and went unpunished would be regarded as propaganda.
PROF. DAVID POZEN: Basically, [LAUGHS] that’s – that’s a sharp way to put it. I think the administration is actually experiencing this lesson, to some degree, right now because they brought six cases against leakers. When - whenever a lot of people in Congress, civil society and the media see in print an anonymous US government official saying something that sound sensitive, and no sanction follows, people are becoming more and more cynical about thinking that likely came from the White House. In a phrase, plants need to be watered with leaks. [LAUGHS]
BROOKE GLADSTONE: [LAUGHS] Well done! But if we stop talking about numbers and we just talk about people –
PROF. DAVID POZEN: Yeah –
BROOKE GLADSTONE: - Bradley Manning and his famously awful treatment by law enforcement and the perhaps life in prison that he could face, isn’t one prosecution like that enough to create such a chill that the numbers or the potential prosecutions, none of that really matters?
PROF. DAVID POZEN: I think it’s definitely right that the chill spreads well beyond the set of cases that are brought, and there’s never any justification for mistreating a prisoner, pursuing an excessive penalty. It may be that high-level officials are, are happy to chill the Bradley Mannings of the world. There are hundreds of thousands of employees with security clearances. It's one thing to think about some several hundred high-level officials playing this game of leaks. It may be seen as much more threatening to have potentially hundreds of thousands of people playing.
BROOKE GLADSTONE: So if you are pro the system of leaking and you think it is essential to government, what about what's happening now?
PROF. DAVID POZEN: I'm worried, like many people, about the direction in which things are going. I'm not sure, however, that they’ll keep going in the direction they're going. It might be helpful to think about why the enforcement rate has gone up. There are a few leading candidates under Obama. One is technological, you know, because if new investigative tools, it’s just become easier to figure out who did it without subpoenaing journalists. Another is institutional. The National Security Division which was created within the Justice Department in 2006 that shares authority over leak cases with the FBI may bring a more national security-minded, less tolerant approach to these cases, and also just more resources.
All of those explanations may have something to them, but one explanation that has been floated, I think, is likely wrong. Some have speculated that the Obama White House has pressured the Justice Department. I think that may actually have it backwards. Historically, White Houses have sent a cautionary signal to the Justice Department to take it easy on leak cases, realizing the potential political and policy costs. This administration has been very concerned not to tamper with the Justice Department's prosecutorial activities, as a backlash, perhaps, against what was seen as the excessive politicization of the Justice Department by the Bush administration. It's actually the lack of a restraining message from the White House that may have some explanatory power here.
BROOKE GLADSTONE: Your bottom line is that leaks increase the public's trust in government, which is weirdly counterintuitive, and they enable the government to talk to itself, which is similarly counterintuitive.
PROF. DAVID POZEN: While individual leaks can no doubt damage the President's agenda, on aggregate leaks tend to actually promote government power to a significant degree. At least historically they have done so.
BROOKE GLADSTONE: And not just plants.
PROF. DAVID POZEN: And not just plants, a lot of different parties’ interests. There's some evidence, I think, as well, although it's very hard to tell, that very top people in the Obama administration may, however, want to pull back the reins a bit. There was a recent story in the New York Times in which close aides of the Attorney General are reported as saying that the Attorney General doesn't want leak prosecutions to be his legacy. I read it as a signal being sent from the Attorney General to line level prosecutors to slow down. If it's right that there are a lot of good strategic reasons, as well as high-minded democratic First Amendment-based reasons why the government would want to be leaky, then I think there’s cause to think that the enforcement uptick under Obama may be self-correcting. It may just be too costly for the President to sustain this level of skepticism and backlash that’s followed.
BROOKE GLADSTONE: David, thank you very much.
PROF. DAVID POZEN: Thanks for having me.
BROOKE GLADSTONE: David Pozen is a law professor at Columbia University and author of the upcoming Harvard Law Review article, “The Leaky Leviathan.” We’ll link to it on our website.