Whose secrets are they anyway?

At the most general level, Pozen argues that the United States’s apparently chaotic system of leak regulation — draconian penalties that are almost never imposed; threats to punish leakers but not publishers — masks a deeper logic. This system, “although ritualistically condemned by those in power, has served a wide variety of governmental ends at the same time as it has efficiently kept most disclosures within tolerable bounds.” Pozen’s nuanced and subtle account of what those governmental ends are and how they are served by the existing regulatory regime is both wholly persuasive and deeply insightful.

The word “governmental,” however, covers quite a bit of ground and might usefully be deconstructed. As Pozen’s account makes clear, the broad ends that are served by the leak regime are most decidedly those of the President and other executive branch officials. Indeed, Pozen notes the pervasive sense among such officials that they “own” the secrets that they produce and control. Various executive branch officials collect and develop that information, classify that information as secret, and then, as Pozen so deftly demonstrates, selectively leak the “secret” information that furthers their agendas. This bare-bones summary of Pozen’s positive account suffices to make one key point pellucidly clear: “secret” is a political category, not a natural one. Facts in isolation do not cry out for secrecy; facts within a specific political context do.

If this observation at first seems too obvious to justify the expenditure of pixels, consider that it is emphatically not the way that we tend to talk about government secrets. The fact that someone in the executive branch has chosen to mark some piece of information as “secret” sets the presumptive terms for how that information may properly be used, shared, and disclosed. As Pozen notes, “virtually any deliberate leak of classified information to an unauthorized recipient is likely to fall within the reach of one or more criminal statutes,” and “[n]o court has ever accepted a defense of improper classification.” In other words, executive branch officials determine what information is secret, a determination to which other political actors are expected to (and do) defer. Executive branch officials frequently leak “secret” information without adverse consequence, because a permissive regime for such leaks broadly serves executive branch purposes. But when information is leaked outside of the normal, executive-friendly parameters of this regime, the executive reserves the right to prosecute, with the possibility of severe punishment. Secrets are treated as belonging to the executive; little wonder, then, that “there are substantially more unattributed disclosures ‘for’ the President than ‘against’ him.”