06/25/12
Temple of Silence: Why the Supreme Court Leaks Less Than the CIA Jack Goldsmith
When Supreme Court Justice Ruth Bader Ginsburg rose to
speak to the American Constitution Society on June 15, many in the audience
hoped she would hint at the fate of the Affordable Care Act. The justices had
voted on Obamacare on March 30, and by mid-June the Court’s opinion, as well as
any concurrences or dissents, had been drafted and circulated internally. But
despite palpable panting by journalists, no one outside the Court knew what it
had decided. And Ginsburg gave no clue. “Those who know don’t talk,” she said.
“And those who talk don’t know.”
In the national security bureaucracy, the opposite rule has prevailed: Those who know talk quite a lot. In recent weeks, the press has reported on U.S. cyber-attacks on Iranian nuclear enrichment facilities, a double agent inside the Al Qaeda affiliate in Yemen, and internal deliberations about drone operations. And by all accounts, the primary sources for these revelations were executive branch officials. “The accelerating pace of such disclosures, the sensitivity of the matters in question, and the harm caused to our national security interests is alarming and unacceptable,” charged congressional intelligence committee leaders in rare bipartisan unison. Why is the Court so much better at stopping leaks than the government agencies entrusted with the country’s most critical secrets?
One answer is that the Supreme Court has fewer secrets than the executive branch and fewer people who know about each one. Only 70 or so people inside the Court—the justices, their clerks and senior staff, and a few Court employees—would be privy to the outcome of the health care case prior to its announcement. By contrast, more than 4.2 million people—almost all located in or associated with the executive branch—hold security clearances. The circle of secrecy for any particular sensitive operation is much smaller, but typically includes hundreds of people, often more. “In the secret operations canon it is axiomatic that the probability of leaks escalates exponentially each time a classified document is exposed to another person,” noted former CIA Director Richard Helms in his memoir, A Look Over My Shoulder.
A corollary to the Helms principle is that the likelihood of a leak increases with the time span of the secret. Intelligence operations that last for years (such as the cyber-operation in Iran) are harder to keep quiet than ones that are relatively short and discreet (such as the operation against Osama bin Laden). A long-term operation involves more people over more time and has a better chance of being drawn out through diffuse sourcing—the process, by which journalists gather tidbits of possibly-but-not-necessarily classified information from many people over time that, when pulled together, can form a mosaic of revelation.
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