Court Should Not Recognize “Good Leaks,” Govt Says

07.05.11 | 2 min read | Text by Steven Aftergood

To admit the possibility of a “good leak” of classified information would undermine the entire classification system, government attorneys told a court (pdf) last week, and therefore it should not do so.

The government’s statement was presented in a response to New York Times reporter James Risen’s June 21 motion to quash a subpoena to compel him to testify in the case of Jeffrey A. Sterling, a former CIA officer who is accused of disclosing classified information to Risen without authorization.

In his motion to quash, Mr. Risen had urged the court to consider “the public interest in newsgathering, measured by the leaked information’s value” and the damage to the public interest which would ensue from compelling him to testify.

But the government said the court should do no such thing.

“[E]xplicitly recognizing ‘good leaks’ of classified information… would effectively destroy the system through which the country protects that information,” the government said in its July 1 response.

“It would encourage government employees who are provided access to classified information to betray their commitment to safeguard it by suggesting that they, too, should undertake their own independent analysis of the effect of their disclosure of that information should they desire to do so.  It would also provide a ready-made defense for every disgruntled intelligence community employee or contractor who discloses such information to the press because he harbors a grudge against the institution for which he works,” the government attorneys argued (p. 28).

From a different perspective, “good leaks” are a uniquely effective remedy to what President Obama once called “the problem of over classification.”  Unless and until overclassification can be curtailed through other means, some types of leaks serve as a necessary safety valve, especially when they reveal classified information involving criminal activity, misconduct or mismanagement.

In its response to Risen, the government argued forcefully against Risen’s invocation of a reporter’s privilege and urged the Court to require him to testify in the Sterling case.  The legal issues will be argued before the court at a July 7 hearing.  See related coverage in Politico and the Washington Post.