When Is It OK To Leak Classified Intelligence?
By Justin Gardner | Related entries in Law, The War On TerrorismThat’s a question recently posed in the comment section of Alan Stewart Carl’s post above coverups (which can be found below so I won’t link to it).
So Donklephant readers…when is it? Both wings of the blogosphere decry some info leaks, but not others. Obviously, it’s legal for the President to declassify whatever he deems fit, but it’s extremely illegal to leak information like the secret CIA prisons or the warrantless wiretapping. But, in the end, if our leaders are engaging in activities that are certainly gray as far as legality goes, should people be punished for leaking?
What say you?
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April 7th, 2006 at 3:01 pm
The President – and the President alone – gets to decide what current classified information is declassified.
April 7th, 2006 at 3:18 pm
I’m not sure you can come up with a standard, even a loose one. But I will say that I think one of the great unwritten checks-and-balances of our system is that people leak. If what they leak is deemed helpful to the populace, they generally get away with it. If the consensus is that a leak was harmful (or at least done for petty political reasons), there is generally enough of an outcry to ensure a full investigation.
I think the biggest issue in the coming years is going to be how do you handle media sources that print clearly harmful leaks. When there were only a few major news organizations, you could be sure that there was at least serious thought given before classified information was printed. But with the proliferation of media sources and the increasing competition for viewers and readers, more and more outlets might start crossing the line. At what point does the freedom of the press run into the need for national security? That’s a debate that would surely get people’s dander up.
April 7th, 2006 at 3:32 pm
There are two separate questions here: “by whom,” which leads into “is it legal;” and “when,” which leads to “is it proper”
April 7th, 2006 at 3:42 pm
I believe that Bush issued an executive order stating that the VP has the power to declassify information. So, I guess right now, Bush and Cheney both have that power. I guess that they can leak anything they want to, legally, as long as it has been declassified by them. I wonder if they have to prove it was declassified before it’s legal for them to leak it?
April 7th, 2006 at 5:32 pm
Obviously, the President (as head of the Executive and thus *the* classifying authority) can declassify as it pleases him to the limits of the underlying legislation and apparently this VP has been authorized as well. But that’s not the full list. If there are executive branch shenanigans, it is licit, even laudable for intelligence professionals to go to Congress and blow the whistle. The law is clear, the Intelligence committee is supposed to be where you go so the secrets stay secret and legislation to correct abuse can be taken up quickly.
The NY Times is not on the list of legal recipients.
Now if there were some case where the executive and legislature were both compromised in a cabal against legitimate constitutional rule, well, all bets are off as Thomas Jefferson’s right of rebellion reasserts itself. I don’t forsee that happening in my lifetime but I leave that as a sobering thought for the future.
April 7th, 2006 at 7:07 pm
If the president has the power to declassify, and he authorizes the information to be released, then is the release of that information a “leak”?
April 7th, 2006 at 8:13 pm
Callimachus, I don’t suspect it is a leak, or that it’ll be found illegal–but is what is being alleged above-board and ethical? No. It just further paints Bush as an opportunist who was going to stop at nothing, including cherry-picking evidence, to follow through on his intense desire to attack Iraq. I think he wanted that from before he took office, we know a number of his administration thought it was a great strategy, and it appears they weren’t going to let a few facts get in the way.
April 7th, 2006 at 9:00 pm
I understand. I’m just trying to get the terminology in order first, before the flamethrowers open fire.
The “declassification” in question took place after the war, by the way, not before it.
Just out of curiosity, what were the “facts” that would have “got in the way” and how were they known at the time?
April 10th, 2006 at 8:56 am
If the presidents tells someone is it declassified, or does he have to go through some sort of procedure to declassify something?
April 10th, 2006 at 12:51 pm
Whoever classified the information, and the superiors of that person or agency, alone have the authority to declassify information.
Anyone else who has access to classified information MUST NOT expose/leak/declassify it intentionally or unintentionally. If a person does so, s/he should be punished/prosecuted.