124 Pages Posted: 25 Feb 2013 Last revised: 24 Sep 2015
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, roughly 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 that 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 organizational 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.
Keywords: secrecy, transparency, freedom of information, classification, whistleblowers, WikiLeaks, Pentagon Papers, Espionage Act, Official Secrets Act, reporter’s privilege, bureaucracy, intelligence, cyber, drones, underenforcement, social norms, informal sanctions, First Amendment, Obama, Snowden
JEL Classification: D80, H10, H40, H56, H82
Suggested Citation: Suggested Citation
Pozen, David, The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information. Harvard Law Review, Vol. 127, pp. 512-635, 2013. Available at SSRN: https://ssrn.com/abstract=2223703
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