21 November 2013

Secrets and spooks

'The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information' (Columbia Public Law Research Paper No. 13-341) by David Pozen comments
The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, roughly a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.
This article challenges the standard account of that disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances an alternative theory of leaking. The executive branch's "leakiness" is often taken to be a sign of organizational failure. The article argues it is better understood as an adaptive response to external liabilities (such as the mistrust generated by presidential secret keeping and media manipulation) and internal pathologies (such as overclassification and bureaucratic fragmentation) of the modern administrative state. The leak laws are so rarely enforced not only because it is hard to punish violators, but also because key institutional actors share overlapping interests in maintaining a permissive culture of classified information disclosures. Permissiveness does not entail anarchy, however, as a nuanced system of informal social controls has come to supplement, and all but supplant, the formal disciplinary scheme. In detailing these claims, the article maps the rich sociology of governmental leak regulation and explores a range of implications for executive power, national security, democracy, and the rule of law.
Pozen concludes -
In 1975, Michel Foucault famously asked why, after more than a century, the Western world’s efforts to rehabilitate prisoners had proven utterly unsuccessful. The failure to transform criminals into law abiding citizens was routinely denounced by public officials, in a “monotonous critique,” and yet neither the practices of punishment nor the rate of recidivism seemed to budge. The answer to this question, Foucault theorized, lay in the motivations and dispositions of those individuals and institutions who ran the carceral state: these groups, these social structures, these patterns of thought — at some fundamental level they did not want to rehabilitate prisoners. They preferred delinquency.
It is time to ask a similar question about the persistence of massive leaking of government information. There is no need to accept Foucault’s methodology or worldview to embrace his revisionist instincts in this case. The literature on leaks has largely taken it for granted that the authorities would like to escalate enforcement, if only they had the capacity to punish more offenders. Relax this assumption — which Part II demonstrated to be untenable in any strong form — and a different set of variables, a new way of looking at leaks, comes into focus. This Article has unearthed the executive branch’s varied interests in maintaining a regime of widespread classified information disclosures to the press, as well as the various tools the executive has developed to manage this regime. Considered in light of these dynamics, the longstanding failure of leak-law enforcement can be seen as something else entirely. It can be seen as a strategic response facilitated by Presidents and their appointees to a set of profound challenges confronting the modern administrative state. Even if we bracket all of the standard arguments about leaks’ value for transparency, public debate, and the like, the counterintuitive yet inescapable conclusion is that some substantial amount of leaking is deeply valuable for the executive itself. Foucault told a story about the disciplinary impulses that lay beneath the Enlightenment rhetoric of the early welfare state. This is a story about the permissive (though still power-serving) impulses that lie beneath the disciplinary rhetoric of the postwar national security state.
It is easy to find fault with the equilibrium that has emerged. Indeed, from virtually any first-best normative standpoint, it is difficult to justify such high levels of classification and clandestineness and such low levels of legal accountability. That this regulatory regime has proven workable hardly means that it is attractive, or that new approaches to secretive executive branch activities — from strengthening congressional and judicial oversight, to reducing classification, to enhancing whistleblower protections — could not improve on the status quo. Any effort to recalibrate the practice of leaking itself, however, would have to take into account the tangle of factors that has historically generated so many disclosures, curbed so many disciplinarians, served so many interlocking agendas, frustrated so many formal designs.
This Article has tried to detail the interaction of these factors within the larger ecosystem of presidential information control, and thereby to deepen our understanding of government secrecy and executive power. The Article offers mainly positive theory in the middle range, out of a conviction that this is the kind of scholarly work most needed in this field at this time — that many higher-level normative accounts of the information state and the national security state cannot get off the ground without a fuller understanding of how this ecosystem has actually worked. The Article devotes less attention to cases and statutes because they have mattered less in this area, far less than the legal literature’s fixation on them would suggest. It explores intentional, organizational, and functional considerations because each of these conceptual frameworks enables valuable, and largely compatible, explanatory insights. It offers no sweeping prescriptions because the complexity and difficulty of the subject render them inapposite. Some well-known policy problems cannot be solved. Some are not even problems.
The great secret about the U.S. government’s notorious leakiness is that it is a highly adaptive mechanism of information control, which has been refined through a nuanced system of social norms. The great secret about the laws against leaking is that they have never been used in a manner designed to stop leaking — and that their implementation threatens not just gauzy democratic ideals but practical bureaucratic imperatives, not just individual whistleblowers but the institution of the presidency. A delicate web of constraints has accommodated the competing objectives of many powerful actors with respect to leaks. If unauthorized disclosures were ever to be systematically suppressed, it would jeopardize so much more, and so much less, than First Amendment principles. And thus we may find that the “war” against leaking yields once again to monotonous and ineffectual critique.
There is a short response in 'Whose Secrets?' by Josh Chafetz in (2013) 127 Harvard Law Review Forum which argues that
Drawing on Pozen's subtle and persuasive account of the ways that our existing secrecy regime broadly serves executive-branch ends, ... "secret" is a political category, not a natural one. It is only within a particular political context that facts can be said to require secrecy. By deferring almost entirely to the executive branch's executive-friendly secrecy determinations, we largely cede the construction of that political context to the executive.
This Response proposes that, instead of treating secrets as the particular property of the executive, we treat them as belonging to the collective political community. Of course, for them to be secrets, we cannot all know them, but we can allow a role for other institutions of collective decisionmaking. Members of Congress have on occasion played such a role, and they could do so more vigorously. Drawing on examples ranging from the Pentagon Papers to WikiLeaks, this Response examines the rationales for, and the rules governing, an increased role for Congress.
In Australia former government economist Dr Yeon Kim is reported to have discontinued Federal Court proceedings that earlier this year revealed South Korean intelligence personnel had worked to "cultivate Australian officials and public servants to obtain sensitive information".

As I've commented elsewhere, it is axiomatic that liberal democratic states - in furthering their interests or merely aiming to secure their continued existence - engage in intelligence collection, analysis and sharing with special 'friends'. That includes information from other liberal democratic states. It's a matter of we spy on them, they spy on us, and don't get caught.

In 'Spooks, suspects and suppression orders: the Kim, Sands and 'AA' judgments' (2013) 9(7) Privacy Law Bulletin 115 I noted that Dr Kim has had trouble with his security assessment but has not been found guilty in an Australian court of an offence under the Crimes Act 1914 (the equivalent of the UK Official Secrets Act).

The Australian Security Intelligence Organisation reportedly believed in 2010 that Kim, then a trade analyst in the Australian Bureau of Agricultural and Resource Economics and Sciences (ABARES), had been meeting South Korean diplomat Hoo-Young Park - who was an officer of South Korea's National Intelligence Service (NIS).

The ASIO Director-General David Irvine then issued an adverse security assessment of Dr Kim after finding that "he had had contact with successive NIS officers who he had not reported, as required by Australian government policy". ASIO alleged that Kim had been involved in "an act of foreign interference" by disclosing confidential information about Australian-Korean trade negotiations - presumably the forthcoming FTA - to the NIS officer. ASIO recommended revocation of his secret-level security clearance, effectively ending his public service career and no doubt crimping opportunities in the private sector.

Kim insisted his contact with South Korean diplomats was purely social, covering nothing more than non-sensitive and publicly available information. The Administrative Appeals Tribunal upheld ASIO's adverse security assessment in August 2012, with Kim then resigning from ABARES but appealing the AAT decision in the Federal Court.

The matter attracted attention, as I noted in my PLB article, because ASIO sought to prevent public disclosure of the incident and protect the identities of NIS personnel, who weren't expelled from Australia. Kim's lawyers understandably questioned that, wondering why ASIO's effort to avoid embarrassing the NIS was necessary for Australia's national security.

Foster J agreed and ruled in RJCG v Director-General of Security [2013] FCA 269 that suppression of information identifying the mysterious 'other country' was unjustified. However, in September Kim v Attorney-General of the Commonwealth [2013] FCA 902 saw him dismiss Kim's application for access to the ASIO security assessment.

Kim's appeal against that dismissal was scheduled to be heard by the full Federal Court next week. Kim has, however, reportedly abandoned the litigation, supposedly because the matter would have returned to the AAT and costs of course would not disappear.