Leaks vs. Whistleblowers

The dominant political news of the week was the dismissal of Lt. Michael Flynn (ret.), President Trump’s first National Security Advisor. His abrupt departure brought back a few issues that should have been answered during the fall campaign, but weren’t. In a multi-part series, I’ll be examining the following:
1. Were the leaks that led to Flynn’s ouster justified? Are leaks ever justified?
2. Is the President’s Russophilia damaging to his Presidency and the nation writ large?
3. Should career civil servants place greater emphasis on conscience or policy?

One of the more interesting results of the Flynn Fiasco is the President’s relentless damning of the news articles that forced his hand and the leaks that made those news articles possible. While part of the attacks are typical hubris that nobody, except the Trumpers, takes seriously (sorry, the stories weren’t “fake news”), as with all good propaganda there is an element of truth to them. We’re all aware that Trump takes criticism about as well as a child. Those stories weren’t the opinion-filled pieces that Trump has been able to dismiss as terrible journalism. They are hard-hitting, factual articles that were made possible by the type of inside information that isn’t ever supposed to see newsprint.

In short, the President is rightly incensed about the leaks which have plagued his administration from Day 1. Regardless of the fact that we know Trump values personal loyalty above all other traits, leaks of this sort can constitute a national security threat.Take away that Trump feels personally slighted by what he perceives as an internal attack from the “deep state,” and we’re still left with the reality that someone (or several someone’s) within the National Security Council staff went and blabbed to the Washington Post about Flynn’s violations of the Logan Act, and to the New York Times and CNN about the Trump presidential campaign’s contacts with the Russian intel services as far back as 2015.

Americans have always had a love/hate relationship with government leaks. We celebrate Mark Felt, the leaker later famously revealed as “Deep Throat,” whose information exposed the corruption and malfeasance of the Nixon administration. We vilify Bradley Manning, whose leaking apparently drove him/her/it to finally lose whatever grasp on reality him/her/it ever had. Then there are figures like Edward Snowden, about whom we are ambivalent: the leaks were damaging and showed illegal government activity, but we can’t quite make up our mind whether he’s a whistleblower, a pawn or a traitor.

Now add in that often, our government will purposely leak information. Whether it’s Scooter Libby giving David Ignatius “deep background” about Iraqi WMD, or James Jones’ leaking Gen. Stanley McChrystal’s Afghan plan, the previous two administrations have used strategically timed leaks from the National Security Council to advance their agenda. That’s not inconsequential; the last 16 years have seen increasingly aggressive actions against leakers.

So the question before us is this: when is a leaker a whistleblower? Felt was undoubtedly a whistleblower, Manning a leaker.

The answer seems to be more one of public opinion than anything else. Had the nation simply shrugged off the Constitutional breaches of Richard Nixon as “Nixon being Nixon” and “politics as usual,” Jeffrey Zeifman would have been tasked with hounding Woodward and Bernstein to reveal their source. If we had publicly decided that Wikileak’s publication of Manning’s data dump revealed a pattern of illegal conduct by US forces, he might not be trying to get the taxpayers to pay for having his genitals whacked off. As for Mr. Snowden, he will probably find himself in permanent exile – while the NSA spying certainly violated the 4th Amendment, that Constitutional protection isn’t terribly popular at the moment.

Another factor is whether the government wants to pursue charges against the leaker. An example of such a situation is Scott Davis, the man responsible for exposing the Department of Veteran’s Affairs allowing veterans to die before ever seeing a doctor. He leaked internal documents showing VA was well aware of the problem but not doing anything to address it, a clear violation of 18 USC 793, 794. Yet, even the notoriously anti-leak Obama administration passed on filing charges against Davis. This was despite the  fact that few leaks embarrassed the former President quite as badly as the revelation that even as he was sending American servicemen into  harm’s way, he was turning a blind eye to their care upon their return.

And so, in this way, we’ll be able to eventually determine which of these leaks merit whistleblower status. That Gen. Flynn broke the law is beyond doubt; that he demonstrated woefully poor discretion likewise. (Seriously, a career spook who didn’t know a phone call to the Russian ambassador was being recorded by both the NSA and the Russian FSB? That’s…terrible). The level of demonstrated incompetence alone should have resulted in his dismissal, much less the willful lying to the Vice President.  Similarly, if the ties between the Russian intel service and the Trump campaign are proven, then those leakers will likely rise in American lore to match that of Deep Throat. If it results in nothing more than innuendo, the President will be fully justified in rooting out and charging the people responsible.