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The Roe Leak: Of Trust and Promises

photograph of manilla envelopewith "Top Secret" stamped on it

There is plenty to be said about the leak that brought us the news that the Supreme Court was considering overturning Roe vs. Wade, the case that legalized abortion throughout America. The most important issue is that, if this draft becomes law, many people will be forced to either give birth when they do not want to (and giving birth in America is dangerous compared to other wealthy countries, especially for women of color), or they will have to seek an illegal abortion. Not to mention that banning abortion does not decrease the number of abortions, it just makes them more dangerous (because they are illicit and less well-regulated).

My focus here is not on that issue, it is on the comparatively unimportant issue of whether whomever leaked the draft should have done so – though I won’t find an answer, I will explore what sorts of factors might help decide this. (Matt Pearce in the LA Times does an excellent job of explaining the various competing factors; there is no way that I could cover everything in this short article, and I will inevitably omit important factors.)

The leak itself has caused an outcry. SCOTUS Blog described the leak as “the gravest, most unforgivable sin.” (This might be a bit strong, considering the Supreme Court has previously ruled that slaves had no rights and Japanese-Americans could be interred in concentration camps.) The leak has also been described as an “actual insurrection” (seemingly by somebody who does not know what words mean) and as an obvious attempt to “intimidate.”

Others have offered more measured, reasonable, criticism. John Roberts, the Chief Justice, said that this leak was a “betrayal of the confidences of the Court [that] was intended to undermine the integrity of our operations.” He also noted that there was a “tradition” of “respecting the confidentiality” of such drafts, calling the leak a “breach of trust” that was an “affront” to the court. (It’s worth pointing out that leaking court opinions is not illegal – no law forbids leaking itself.) I want to suggest that even if everything Roberts has said is true, the leaker still might have been right to leak the draft.

Here is one starting point to get to Roberts’s position. Clerks apparently promise the court confidentiality, and to break a promise is itself wrong. After all, this is a reasonable promise to expect clerks to make (and this following consideration applies to judges, too): deliberating in an open way, where you can communicate trustfully with your colleagues, in theory helps to ensure open, fruitful conversation. (If a justice leaked the draft, they might not have made a promise, but the reasons to ensure open discussions apply to them.)

How exactly promises work is a topic of debate amongst philosophers, but one illuminating approach is offered by the recently deceased Joseph Raz that draws on the notion of “exclusionary reasons.”

As Raz sees it, what we should do is determined by what reasons we have. Ordinary (first-order) reasons help us decide what is best: if eating the cake will give me the nutrition required, and I want to eat it, then I should eat it if no reason exists against eating it. Now, if there is a reason not to eat it, for instance I have already had one portion and I don’t want to offend my hosts, then perhaps I shouldn’t eat it. Whether I should eat it depends on how these reasons weigh up: is it more important that I get the necessary nutrition and do what I want, or that I avoid any risk of offending my host. Promises are not like that: if I promised my wife I would only have one slice of cake, then the facts that I want it and it supplies nutrition, do not count. The promise excludes the countervailing considerations.

So, if there was a promise not to leak, then even if there are reasons to leak, perhaps one should not.

Yet even if the leak would breach a promise and constitute a betrayal, this might be the right thing to do. If a friend tells you that they are cheating on their partner, you might betray your friend’s trust by informing that partner – and trust amongst friends is important –  but tell that partner might still be the right thing to do: your friend’s partner does not deserve to be treated like this, and that might outweigh the fact that you promised your friend you wouldn’t tell.

Here are two explanations for why this might be okay. If your friend had said “I have a secret, promise me you won’t tell anybody?” you might think they are, say, planning a surprise party for a friend or thinking about a career change. You might reasonably think your promise has a certain scope, restricted to trivial things. If your friend had confessed to being a notorious murderer, you wouldn’t reasonably be expected to keep that promise, nor need you keep the promise when he tells you he has cheated on his partner. Likewise, in the case of the Supreme Court leak, we have to judge whether the promise to keep things confidential extends this far: does it cover overturning a law that has been settled for five decades, that will affect millions, and which many of the Supreme Court justices (even recently) suggested they would not overturn?

Or, perhaps sometimes it would be wrong to leak (because you promised not to) yet the best thing to do all-round is to leak it. This is a bit like the ethical problem of dirty hands: where to ensure the best result, somebody had to do something wrong. It might be that torture is wrong, yet finding out where the bomb is hidden is so important that somebody should do the awful thing and torture the suspect (this example is simplistic: torture is very ineffective). Likewise, perhaps leaking is wrong and damages the court, yet letting Roe vs. Wade be overturned is too dangerous, and somebody should get their hands dirty, do the wrong thing, and leak the draft for the greater good. This would be, in a way, deeply admirable.

The topic is complex, my point here is just that the fact that leaking is wrong, or the fact it betrays an institution, is not enough to get us to the conclusion that it shouldn’t be done. Sometimes – as tough as it may be, as much as it may damage one’s own moral standing or future career – people should betray others.

Government Leakers: Liars, Cowards, or Patriots?

James Comey, former Director of the FBI, recently testified in front of the Senate Intelligence Committee regarding conversations that he had with President Trump. The public knew some of the details from these conversations before Comey’s testimony, because he had written down his recollections in memos, and portions of these memos were leaked to the press. We now know that Comey himself was responsible for leaking the memos. He reportedly did so to force the Department of Justice to appoint a special prosecutor. It turned out that his gamble was successful, as Robert Mueller was appointed special prosecutor to lead the investigation into possible collusion between the Trump campaign and the Russian government.

After the testimony, President Trump blasted Comey as a Leaker. He tweeted, “Despite so many false statements and lies, total and complete vindication…and WOW, Comey is a leaker!” Trump later tweeted that Comey’s leaking was “Very ‘cowardly!’” Trump’s antipathy towards leaking makes sense against the background of the unprecedented number of leaks occurring during his term in office. It seems as if there is a new leak every day. Given the politically damaging nature of these leaks, supporters of the president have been quick to condemn them as endangering national security, and to call for prosecutions of these leakers. Just recently, NSA contractor Reality Winner was charged under the Espionage Act for leaking classified materials to the press. However, it is worth remembering that, during the election campaign, then-candidate Trump praised Wikileaks on numerous occasions for its release of the hacked emails from the Democratic National Committee.

A cynical reading of this recent chain of events suggests that the stance that government figures take towards the ethics of leaking is purely motivated by politics. Leaking is good when it damages a political opponent. Leaking is bad when it damages a political ally.  Sadly, this may be a true analysis of politicians’ shifting stances towards leakers. However, it does not answer the underlying question as to whether leaking can ever be morally permissible and, if it can be, under what circumstances might it be?

Approaches may differ, but I think it is reasonable to ask this question in a way that assumes that government leaking requires special justification. This is for two reasons. First, the leaking of classified information is almost always a violation of federal law. Leaking classified information violates the Espionage Act, which sets out penalties of imprisonment for individuals who disclose classified information to those not entitled to receive it. As a general moral rule, individuals ought to obey all laws, unless a special justification exists for their violation. General conformity to the law ensures an order and stability necessary to the safety, security, and well-being of the nation. More specifically, the Espionage Act is intended to protect the nation’s security. Leaking classified information to the press risks our nation’s intelligence operations by potentially exposing our sources and methods to hostile foreign governments.

Second, as Stephen L. Carter of Bloomberg points out, “leakers are liars,” and there is a strong moral presumption against lying. Carter provides a succinct explanation: “The leaker goes to work every day and implicitly tells colleagues, ‘You can trust me with Secret A.’ Then the leaker, on further consideration, decides to share Secret A with the world. The next day the leaker goes back to work and says, ‘You can trust me with Secret B.’ But it’s a lie. The leaker cannot be trusted.”

The strong presumption against lying flows from the idea that morality requires that we do not make an exception of ourselves in our actions. We generally want and expect others to tell us the truth; we have no right ourselves, then, to be cavalier with the truth when speaking with others. Lying may sometimes be justified, but it requires strong reasons in its favor.

Ethical leaking might be required to meet two standards: (A) the leak is intended to achieve a public good that overrides the moral presumption lying and law-breaking, or (B) leaking is the only viable option to achieving this public good. What public good does leaking often promote? Defenders of leaks often argue that leaking reveals information that the public needs to know to hold their leaders accountable for wrongdoing. Famous leaker Edward Snowden, for example, revealed information concerning the surveillance capabilities of the National Security Agency (NSA); it is arguable that the public needed to know this information to have an informed debate on the acceptable limits of government surveillance and its relation to freedom and security.

Since leaking often involves lying and breaking the law, it must be considered whether other options exist, besides leaking, to promote the public good at issue. Government figures who criticize leakers often claim that they have avenues within the government to protest wrong-doing. Supporters of Snowden’s actions pointed out, however, that legal means to expose the NSA’s surveillance programs were not open to him because, as a contractor, he did not have the same whistleblower protections as do government employees and because NSA’s programs were considered completely legal by the US government at the time. Leaking appeared to be his only viable option for making the information public.

Each act of leaking appears to require a difficult moral calculation. How much damage will my leaking do to the efforts of the national security team? How important is it for the public to know this classified information? How likely is it that I could achieve my goals through legal means within the government system? Though a moral presumption against leaking may exist—you shouldn’t leak classified information for just any old reason—leaking in the context of an unaccountable government engaged in serious wrongdoing has been justified in the past, and I expect we will see many instances in the future where government leaks will be justified.