The Ethics of Leaking: A Catholic Perspective (Matthew Shadle)

Catholic Social Ethics

For the past several weeks U.S. intelligence and other officials have carried out a number of leaks to the media exposing information on Russian hacking efforts to interfere in last year’s presidential election and alleged links between the campaign staff of now President Donald Trump and Russian officials. Since President Trump’s inauguration in January, there has also been an unusual number of leaks coming from the White House itself as well as various executive branch offices like the Department of Homeland Security and the Department of Justice.

These leaks have become highly politicized. Opponents of President Trump see the White House staff leaks as evidence of dysfunction and incompetence in the administration. Many view the ongoing intelligence leaks about Russia connections as mounting proof that the Trump administration is fundamentally illegitimate and in need of thorough investigation. President Trump, meanwhile, has made the case that the leaks themselves are a greater threat to the nation’s well-being than anything supposedly uncovered by them, and he has called on the Justice Department to investigate them. Conservative media outlets such as Breitbart have echoed the president, claiming that the leaks are part of a Democrat-led effort to undermine the president.

While the leaks are undoubtedly political and must be considered from that angle, they should also be considered from a strictly ethical perspective, as well. It is very easy to let one’s political inclinations override ethical considerations; for example, President Trump has repeatedly insisted that the hacking of the Democratic National Committee and leaking of their emails through WikiLeaks was perfectly legitimate, while at the same time decrying the leaks from his own White House, clearly an inconsistent and hypocritical stance. Therefore, in this post I want to offer some preliminary thoughts on what the Catholic moral tradition might say on the ethical problem of government leaking. As this is a complex topic, these thoughts are only preliminary and are an invitation to further reflection by others.

To begin, I believe it is helpful to define some key terms, leaking and whistleblowing:

Leaking: The unauthorized dissemination of information or documents, usually with the intent of: exposing illegal, unethical, or questionable behavior; revealing embarrassing behaviors or characteristics; making public potentially damaging personal information; or undermining an organization or individual’s plans by exposing them before their implementation.

Whistleblowing: A particular subset of leaking, in which the leaker exposes illegal or unethical behavior in order to invite public censure and/or a change in behavior, at least in part for the sake of the public good.

This distinction is important because by virtue of its content and purpose, whistleblowing carries more prima facie ethical weight than other types of leaking, a point I will return to later.

I think the starting point for considering the ethics of leaking should be the principles that, in general, the truth ought to be known and that the public has the right to information about matters pertaining to the public good. There are two principles here. The first is very general, and states that on the whole, it is better for people to know the truth rather than to remain ignorant. Obviously, there are many exceptions to this norm, but it is worth pointing out that any consideration of these questions must begin with an affirmation of the goodness of the truth. The second principle is more specific: the public has the right to information pertaining to the public good. For one, there is an issue of fairness here, since people ought to know how policies will work and how they will affect their lives. But since the common good requires the active participation of all members of society, people not only have a right to information about how they will be affected as the passive objects of policy, but also so that they can more fully participate in deliberating on and shaping those policies.

Therefore, there is a general norm in favor of transparency. That being said, there are particular contexts in which there is a stronger norm in favor of confidentiality. For one, as I noted above, the case for public disclosure is strongest when the information is relevant to the public good, and therefore there is a very strong presumption in favor of confidentiality when the information is private in nature. The most well-known cases are those involving confidences to professionals, such as doctor-patient confidentiality, attorney-client privilege, and the seal of the confessional for Catholic priests. In these cases the rule of confidentiality is practically absolute. But even in other settings it stands to reason that leaks about mere personal faults or missteps are unethical. The only possible exceptions would be if these personal faults pose a real risk to the public.

Second, even when a government agency or business is considering policies that affect the public, there ought to be a certain presumption of confidentiality as those deliberations are taking place. Certainly, there ought to be transparency and public participation in most deliberations, but on other occasions it makes sense for an organization to be able to propose different ideas or policies relatively free from immediate scrutiny by external eyes. The reason here is because the constant leaking of conversations, memos, reports, etc. during the deliberation process can create unnecessary and even harmful confusion and disorder, harming the public good. For example, the leaking of several drafts of executive orders discussed by the Trump administration has created a great deal of confusion among the public about the administration’s intentions and has perhaps created uncertainty among government agents on how exactly they ought to implement their orders. Even in these situations, however, the contents of these confidential deliberations should be made available to the public as soon as is prudent for the sake of transparency. For example, in the United States the Freedom of Information Act was passed in 1966 to provide Americans with access to all public documents except those classified for national security reasons.

Granted all that, there are certain occasions when the obligation to leak overrides the presumption in favor of confidentiality in these settings. After all, the underlying principles are those in favor of truth, transparency, and the public good; the norm in favor of confidentiality only has validity insofar as it is in the service of the public good (although it concerns a quite different issue, there is a certain similarity here with Catholic teaching on private property, in which the right to private property is respected precisely because and only insofar as it promotes the access of all to the goods of the earth). This means that leaks carried out to fulfill personal vendettas, to embarrass someone, or for purely political motives are ethically unjustified. But if a leak is in service to the public good, it may be justified. Before reaching that conclusion, three criteria must be considered: 1) Are there means of addressing the problematic situation without resorting to a leak, such as through further deliberations or administrative actions? 2) What is the moral or legal gravity of the behavior or information to be leaked? and 3) What potential harms could be caused by the leak, and are they worse than those meant to be prevented by the leak? These criteria are really just applications of the traditional principle of double effect.

Let’s look at how these criteria would work in practice, first by examining the case of whistleblowing. The case for leaking is potentially strongest in cases of whistleblowing since by definition they involve situations where illegal or unethical behavior is being contemplated or carried out. For example, in 1996 the whistleblower Jeffrey Wigand exposed the tobacco industry’s lies about the health effects of cigarettes. Most people would agree that this instance of leaking was justified since it was of immense concern to the public and there was little chance of correcting the situation from within the industry.

But other cases of whistleblowing are less clear cut. For example, in 2010 U.S. Army private Chelsea Manning leaked thousands of intelligence documents to WikiLeaks. The documents included information about U.S. military misdeeds in Afghanistan and Iraq that had been hidden from the public, but they also included diplomatic cables from U.S. embassies recording conversations over publicly relevant but not illegal topics and other documents with information that potentially put U.S. soldiers and Afghan informants at risk. In this case it is not at all clear that on balance the public good was served by the leak or that there were not other ways the U.S. military’s deeds could have been addressed or made public. (This judgment does not imply that Manning’s sentence for leaking these documents or treatment in prison was just.)

Leaks that do not rise to the level of whistleblowing are less likely to satisfy the three criteria above. If there is no illegal or blatantly unethical behavior, then there are more likely to be means of addressing the problem through further deliberations or administrative means before going public with the leak. Likewise, the problem is less likely to have the moral gravity of a case involving whistleblowing. Nevertheless, there may be situations in which information is of vital concern to the public and those in authority refuse to address the situation, in which case a leak may be justified if there is a relatively high certainty that the leak will not cause greater harm to the public than that which is meant to be exposed and hopefully prevented.

Before ending these reflections, there are some legal considerations that need to be taken into account. There are no laws against leaking by government officials per se, although it can understandably be a firing offense. There are however, laws against leaking classified information first codified in the Espionage Act of 1917. Information is classified because of its national security implications, and therefore, using the ethical framework outlined above, leaking classified information would have to meet a very stringent ethical standard in order to be justified. For example, it would have to expose a very serious crime or information that puts the national security of the country at risk. The person contemplating leaking classified information must also be willing to accept the legal ramifications of their actions. Some legal scholars have argued that U.S. law needs to be clarified in cases involving whistleblowers leaking classified information.

A second type of legal consideration is raised regarding leaking information about an ongoing criminal or intelligence investigation. In general, such leaks are prohibited for a number of reasons, including that they may hinder the investigation itself by tipping people off about its progress, or that they may unfairly taint the public’s perception of an individual under investigation without giving them the benefit of all the evidence. For these reasons leaking information about ongoing investigations, like leaking classified information, could only ever be justified in the strictest of situations.

This is just the dilemma raised by the leaks of alleged connections between Trump and his staff and Russian officials. On the one hand, leaking damning information that cannot be publicly verified and which challenges the very legitimacy of the executive branch raises serious ethical questions. On the other hand, if the worst of these allegations are true, it may very well be the case that those under scrutiny are now in a position to squelch the investigation. Given the high stakes of the case, it may be justified to leak information sufficient to persuade the public that something is amiss, making it impossible for the administration to sweep the matter under the rug. Given the publicly available facts on the matter, I believe this latter scenario is closer to the truth, but I understand the dilemma faced by the public: we simply do not have sufficient information to judge with absolute certainty that what the intelligence and other officials leaking this information are doing is morally correct. But we rarely have absolute certainty about any difficult moral issue. Therefore, I propose the ethical considerations I have raised in this post as a help to the public in sifting through the information that is publicly available and reaching a rational judgment not based solely on blind political loyalties.

Matthew A. Shadle is Associate Professor of Theology and Religious Studies at Marymount University in Arlington, Virginia. He has published The Origins of War: A Catholic Perspective (Georgetown, 2011). His work focuses on the development of Catholic social teaching and its intersection with both fundamental moral theology and the social sciences, with special focus on war and peace, the economy, and immigration.

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