Washington, it has long been said, “is a container that leaks from the top.” Republicans tried to shift attention from the serious accusations about former National Security Advisor Michael Flynn to who leaked them, as if the leaks were the problem. Sure, stop the leaks and the problem vanishes.

Well, in a way, that’s true. Without information from behind the scenes, public discussion and media comment shrivel. Governance becomes shrouded in perpetual secrecy. I endorse Rep. Jason Chaffetz’s (R-Utah) call to investigate the leaks — provided they look at ALL sources. And there are several possibilities, some of them little considered.

First, define “leak.” If one part of government informs another of something, it is probably not a leak, depending on the security clearances involved. It becomes a leak when it goes outside of government. When acting Attorney General Sally Yates informed the White House about Flynn’s phone calls to the Russian ambassador she was carrying out her duties, not leaking. And that duty — rather than her reluctance to enforce the Muslim ban — is probably what got her fired. 

Someone — possibly in the White House, where power-seekers compete — informed the Washington Post about Flynn. As chief strategist Steve Bannon has moved into the National Security Council, his competitors seem to be victims of leaks; they in turn may counter-leak. Some wonder if Bannon leaked Flynn’s missteps. Tension between Bannon and new National Security Advisor Lt. Gen. H. R. McMaster, two strong personalities, seems likely. 

According to Chaffetz and President Trump (and Hillary), our intelligence and justice agencies leak material calculated to damage someone. Well, sometimes, but contracts and threats of prison keep the Chelsea Mannings rare. When their organizations and civil-service careers are threatened, however, bureaucrats can chat with newspersons who will not reveal sources. That happens when a president defines civil servants as enemies.

Congressional committees and their staffers are rich sources of leaks. Those on Capitol Hill in classified areas are, on paper, under the same restrictions as the executive branch, but their incentives are to cultivate newspersons by dropping morsels of their investigations. Publicity wins re-election. The Times’ Scotty Reston, in his 1967 “Artillery of the Press,” argued that the legislative branch and fourth estate are natural allies.

 


Leaks can occur at the interface of federal agencies and outside contractors, such as Edward Snowden’s 2013 disclosures of NSA surveillance. Defense Secretary McNamara ordered the “Pentagon Papers” as an in-house history of Vietnam War decisions, but they leaked through an outside contractor. Officials cleared to read one of the 15 copies of the “Top Secret-Sensitive” study could not publicly cite it. The Papers might have spent eternity untouched in federal warehouses.

Until those who worked on it started leaking, something likely in government. Leslie Gelb’s summer 1971 Foreign Policy article, “Vietnam: The System Worked,” argued that Vietnam was no accident but carefully planned. I thought at the time: “Interesting, but he cites no evidence.” Then the Pentagon Papers came out, identifying Gelb as their chief editor. Gelb knew whereof he wrote.

One of Gelb’s 36 collaborators, Daniel Ellsberg, left DoD for RAND, the Santa Monica think tank, which had two sets of the Papers. Ellsberg photocopied and personally distributed them, including to the New York Times and Washington Post, who edited them into sensational series. Nixon ordered “prior restraint” censorship, but the Supreme Court immediately threw it out 9-0. Ellsberg was charged, but Nixon’s agents were so heavy-handed that the judge dismissed the case.

Russia could have leaked on Flynn to warn Trump to be nice or more leaks will follow. Trump’s dealings with Russia go back 30 years. Did the FSB, which Putin headed, accumulate kompromat on Hillary but none on Trump? The longer Trump voices his hope for a Russia deal — which Pence, Mattis and UN Ambassador Nikki Haley are now walking back — the more suspicion lingers that the Kremlin has something on Trump. The White House detests mention of a Russian connection.

Should the media be forced to identify the source of the leaks they publish? Most courts let reporters keep their sources confidential. If they had to name them, few would come forward, producing a “chilling effect” on press freedom. The issue is not settled, however, and judges may hold reporters in contempt for not revealing sources. New York Times reporter Judith Miller spent 12 weeks in jail in 2005 when she refused to divulge the source of her story on Valerie Plame of the CIA. (It was Scooter Libby, who worked for Vice-President Cheney.)

Trump wants to prosecute both “lowlife leakers” and the media who publish leaks, although the Flynn leaks could point to the White House. Draconic methods against leaks harm democracy. Nixon, enraged at the Pentagon Papers’ publication, authorized a “plumbers unit” to stop leaks, and we know where that led. Leaks are an escape valve against misuse of power. Get used to living in leakistan.