Leaks (cont.)

By Christopher B. Daly

The able legal-affairs reporter Charlie Savage and Scott Shane have an interesting update in today’s Times about the issue of national-security leaks. The upshot is that the Obama administration has (surprisingly perhaps) emerged as the all-time record-holder among all U.S. presidential administrations for prosecuting leaks. (The piece has a helpful sidebar — which was better looking in print than online — that summarizes nine known leaks cases.)

A couple of related questions:

–Which administration holds the record for generating leaks? (probably a two-term president like Nixon, Reagan, G.W.Bush? or like Clinton?)

–Isn’t it worthwhile to distinguish between different types of leaks?

A. We might differentiate between authorized and unauthorized leaks.

B. We might differentiate between leaks to journalists and leaks to others.

C. We might differentiate between leaks that do harm and those that do not.

For example, it is one thing for a traitor to steal operational secrets and sell or give them to agents of a hostile power. That’s the kind of leak that should properly trigger Congressional outrage and lead to criminal prosecutions. That kind of leak raises no First Amendment issues.

It is quite a different thing for a troubled official to tell a journalist about a secret policy so that the public can debate whether that policy is a good idea. It is this kind of leak that usually induces partisan posturing and leak investigations that fizzle. It is also the kind of leak that requires a careful weighing of the First Amendment implications.