I’m grateful for James Freeman’s kind words about my recent essay in the Guardian warning about Deep State leaks, and relieved that he thinks I am “not nearly as far to the left as most Guardian editors.” We agree that there is a serious danger in the Deep State leaks of classified intelligence intercepts that contains U.S. person information and that were clearly designed to sabotage the Trump presidency. And we agree that in many ways those abuses were greater than the political leaks (and threats of leaks) during the Hoover era.
But in contrast to Freeman, I don’t see how the evils of intelligence bureaucracy leaks detract from the evils in Trump’s many, many norm violations that I wrote about in a long critical essay on Trump in the Atlantic last Fall. Freeman perceives a shift in my viewpoint from the Atlantic piece. But in that essay I made the same point about Deep State leaks as I did in the Guardian, though at greater length:
The most-harmful leaks have been of information collected in the course of surveillance of Russian officials. The first, in February 2017, concerned a December 2016 court-approved National Security Agency wiretap of a phone conversation between the Russian ambassador to the United States, Sergey Kislyak, and the incoming national-security adviser, Michael Flynn, that included a discussion of U.S. sanctions against Russia. (This was the leak that exposed Flynn’s lies and led to his resignation.) Other leaks by current and former intelligence officials have involved intercepts of Russian government officials discussing “derogatory” information about Trump and his campaign staff; of other Russian officials bragging that they could use their relationship with Flynn to influence Trump; of Kislyak claiming to have discussed campaign-related issues with then-Senator Sessions; and of Kislyak reporting to Moscow that Trump’s son-in-law, Jared Kushner, wanted to establish a secure communication channel.
The leaks of Russia intercepts may seem commonplace, but they violated taboos that had been respected even in the wild west of unlawful government disclosures. The first was a taboo against publishing the contents of foreign intelligence intercepts, especially ones involving a foe like Russia. It is hard to recall another set of leaks that exposed so much specific information about intelligence intercepts of a major adversary. This form of leaking risks compromising a communication channel and thus telling an adversary how to avoid detection in the future. The Russia leaks may well have burned large investments in electronic surveillance and constricted future U.S. surveillance opportunities.
The Russia leaks also breached a taboo against revealing information about U.S. citizens “incidentally collected” during surveillance of a foreign agent. The government acquires this type of data without suspicion that the citizen has engaged in wrongdoing, and thus without constitutional privacy protections. For this reason, it is typically treated with special care inside the government. The gush of this information to the public was an astounding breach of privacy. It also violated yet another taboo—against using intelligence information for political ends. In the bad old days when J. Edgar Hoover ran the FBI, the bureau regularly leaked (or threatened to leak) secretly collected intelligence information about U.S. citizens, including government officials, in order to influence democratic politics. The intelligence reforms of the mid-1970s and beyond eliminated this pernicious practice for four decades and were believed to have created a culture that would prevent its recurrence. The anti-Trump leaks mark a dangerous throwback.
These norm violations are an immune response to Trump’s attacks on the intelligence community. But the toll from the leaks has been significant and may outlast the Trump presidency. Although a future president likely won’t find advantage in following Trump’s example, intelligence officials who have discovered the political power of leaking secretly collected information about Americans may well continue the practice. A world without norms to prevent the disclosure of sensitive information about U.S. citizens is not just a world in which Michael Flynn is revealed as a liar and removed from office. It is also a world in which intelligence bureaucrats repeat the trick for very different political ends that they deem worthy but that might not be.
This last paragraph is important. My Atlantic essay focused on Trump’s manifold norm violations—that is what the essay was about. But I argued that future presidents would likely not repeat the vast majority of Trump’s norm violations, which have hurt him so much. It’s much more likely, I argued, that norm violations by the bureaucracy (and the media) will prove sticky.
The Guardian essay that Freeman likes is a compressed version of a just-published essay that I wrote last summer, at about the same time I wrote the Atlantic essay. Its topic is not Trump, but the Deep State: It asks whether the Deep State leaks, as inappropriate and dangerous as they were, might be justified by Trump’s behavior.
On that question I am agnostic because—this is one point of the Guardian essay—we just don’t have enough information:
Perhaps the facts will develop to give us enough clarity about the Russia-Trump connections to be able to make a better judgment along the lines of the judgment history has made about previous virtuous leaks. But perhaps we will never have clarity, and thus won’t be able to reach consensus on whether the leaks were justified.
I can imagine a situation where the wrongdoing was so serious within the Trump administration or campaign that the anti-Trump leaks would be justified as an act of civil disobedience, akin to the leaks by FBI Associate Director Mark Felt (aka Deep Throat) during Watergate. We don’t yet have evidence of such serious wrongdoing, however, and the justification for the leaking is diminished even further by the fact that there was a full government investigation of the Russia matter at the time that had full access to the leaked information.
Moreover, even assuming the worst about Trump, we must acknowledge that the leaks pose serious dangers that transcend the Trump administration. The Atlantic essay worried that political leaks involving U.S. person information might continue after Trump. The Guardian essay emphasized that leaks of this sort undermine intelligence bureaucracy’s legitimacy and make it harder for it to do its job of keeping us safe.
One does not have to choose between the swirl of Trump’s manifold norm violations and the intelligence bureaucracy’s more focused norm violations. Trump’s are much more extensive and (in the aggregate) more corrosive, especially in the short term. But the intelligence bureaucracy’s may be harder to reverse after Trump is gone, and thus worse in the long term.
Both are unfortunate and damaging, though in different ways.
