Regarding Rights

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The Vengeful State: How Democratic Governments Respond to National Security Leaks

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By Peter Grabosky, RegNet, ANU

Image: WikiLeaks

Image: WikiLeaks

States usually respond harshly when individuals publicly disclose national security information without authorisation. I have written elsewhere about the vengeance wreaked by the French State in the Dreyfus Affair; by the British Executive in response to Clive Ponting’s disclosure of information about the sinking of the Argentine cruiser the General Belgrano during the Falklands war; by the Israeli Government in response to Morechai Vanunu’s disclosure of state nuclear secrets; and by the US Administration in the case of the Pentagon papers.[1]

More recently, the leaking of classified information by Chelsea Manning and Edward Snowden again highlighted the tension between state secrecy in purported defence of national security and the public’s right to know about the operations of government and public authorities. In authoritarian political systems this is a non-issue, as there is neither pretence on the part of the state, nor expectation on the part of its citizens, that national security information should be the subject of public debate.

By contrast, the difficulties faced by liberal democracies are real. While hardly anyone claims that national security should be managed in an environment of complete transparency, many argue that citizens of a democracy are entitled to know about acts of questionable propriety committed by their government.

Evaluating where to draw a line between matters that are appropriately hidden from public view and those that are revealed is more difficult if the concept of national security is very broad or poorly defined. Over the last few decades, the concept has acquired considerable elasticity. Traditionally, national security meant the capacity to deter or resist the invasion of a state’s territorial borders by foreign military, naval or air forces. Now, the concept has expanded to embrace a range of factors that might support this capacity, including threats to public health, education, welfare, social cohesion, and the economy.

In recent years, senior US military officials have spoken of the national debt and global warming as significant national security threats. At the extreme is the British definition, enshrined in law in response to Clive Ponting’s acquittal in the case mentioned above: ‘national security is what the government of the day declares it to be’.

Such an approach is as unhelpful as it is simplistic. It constitutes an invitation to government to invoke national security to conceal blunders and justify any number of human rights infringements. Statistics on the annual number of executions in the People’s Republic of China are deemed to be state secrets. So too (at least for a time) was information on the very existence of CIA ‘black sites’ where terror suspects were tortured during the GW Bush Administration. Today, the Australian Government refuses on national security grounds to discuss allegations that it bugged Timor-Leste Cabinet offices in order to advance its position in negotiations over natural resources in the Timor Sea.

Iatrogenesis, derived from the Greek meaning ‘brought forth by a healer,’ refers to inadvertent harm arising from medical treatment. Indiscriminate reliance in years past on practices such bloodletting, enemas and induced vomiting have given way to hospital acquired infections, adverse drug events, and other complications arising from present day medical error and negligence.[2] If one looks beyond medical treatment, one can see a range of unintended adverse consequences of public policies, from death and injury due to ‘friendly fire’ in wartime, to the sophisticated adaptation of organized criminals to changes in law enforcement policy.

Some of the more significant threats to national security are also self-inflicted. States that offend against their own or another nation’s laws, or that breach international norms may themselves be weakened as a result, especially when their activities come to public attention. Israel’s present day management of the Palestinian territories have cost it the support of many in the international community. Vengeful pursuit of individuals who leak information in the public interest can also do long-term harm. Governments that present themselves as paragons of virtue, only to be exposed as having themselves engaged in criminal activities, may see their moral authority eroded. Hypocrisy tends to be inconsistent with leadership.

Legitimacy has another side, that of the person or persons who make unauthorised disclosures. In democratic states, these are unelected individuals who override the judgment of elected leaders and their officers. In principle, such behaviour is decidedly undemocratic. When the questionable activities of the state are concealed from citizens and their elected representatives, one is faced with the irony that the subversion of democracy may be necessary for the preservation of democracy.

One reason that unauthorised disclosure occurs in the first place is the absence of adequate mechanisms of oversight. For all its virtues, democracy is no guarantor of accountability. In democratic political systems, legislators are often kept in the dark. In the US, most of those members of Congress who vote each year on the budget of the CIA are unaware of its contents. Few express concern over their ignorance. As Benkler notes, large organisations, particularly in national security, are prone to pathologies, and are not always self-correcting.[3] Occasional sunlight can identify issues that have been ignored for too long, and can prompt useful democratic conversations.

Even where institutional protections exist, the sunlight of accountability may fade. Courts tend to be deferential to the executive in matters of national security. Other institutions such as Inspectors General lack the power, and often the inclination, to generate controversy. This leaves it to unauthorised individuals to identify ‘dirty secrets’. Unauthorised disclosures are more likely to occur when state institutions with an oversight role are less available and lack strength.

By what criteria may such unauthorised disclosures be judged? The first is whether the public interest in the activity that is the subject of disclosure outweighs any harm that might result from the disclosure itself. The second is whether the initial disclosure was made with the intent to injure national security or rather to save the state from itself.

Sagar argues that leaks may be justified when there is convincing evidence of abuse of authority; when disclosure does not pose a disproportionate threat to public safety; and when the disclosure is as limited as possible.[4] He maintains that for the time being, given the limitations of democracy, both secrets and leaks are inevitable and necessary. Good government does not flourish in the dark.

[1] This blog is based on edited extracts from the paper, ‘The Vengeful State: Responses by democratic governments to unauthorized public disclosure of national security information’, RegNet Research Paper No. 2014/42, available via SSRN, and forthcoming in the RegNet collection, Unsettling Transparency, authored by Valerie Braithwaite, Natasha Tusikov, Kathryn Henne, Kyla Tienhaara, Peter Grabosky and John Braithwaite. The cases mentioned are discussed in detail in that paper.

[2] Ivan Illich, Medical Nemesis, London: Calder Boyars, 1974.

[3] Yochai Benkler, ‘A Public Accountability Defense for National Security Leakers and Whistleblowers’, Harvard Law and Policy Review (2014) 8, 281; see also Geoffrey R. Stone, Top Secret: When Our Government Keeps Us in the Dark, USA: Rowman & Littlefield Publishers, 2007.

[4] Rahul Sagar, Secrets and Leaks: The Dilemma of State Secrecy, Princeton, NJ: Princeton University Press, 2013.

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