Paul Rosenzweig on Lawfare is having anxiety over the rules & ethics of government:
The President’s “decision” to release classified information to the Russians is tragically wrong. The apparent ease with which members of the intelligence community rush to themselves leak classified information to the press is criminal — there are no two ways about it. The President’s disclosure to the Russians of classified information (and the subsequent efforts to mitigate the effects of the disclosure) are themselves classified information — almost certainly at the same level of sensitivity as the underlying classified information. Conservatives, like me, who saw in Edward Snowden a felon cannot now excuse identical conduct simply because the intended end of the disclosure is more condign. I shudder at the idea that a whole generation of intelligence professionals is now being trained in the norm that “it is OK to leak to the press if the President really sucks.” That isn’t the rule of law and it isn’t a system we should encourage. We can (and should) hold the President to account for his exceedingly poor judgment, but we should not brush aside the significant transgression of those who brought us the information.
But I think Paul may be soft-pedaling the situation a trifle. After all, we’re not talking about a President that sucks – we’re talking about a President admitting, if unconscious of the fact, to impeachable offenses, to utterly frivolous behavior in the presence of what we politely call adversaries (no doubt they said much worse of us during the Obama years).
Ethics are a notoriously slippery subject, despite the efforts of many to claim they’re straightforward; indeed, some philosophers spend a great deal of time coming up with ethical dilemmas, and then psychologists expose those dilemmas to test subjects to see how people react when up against a hard case.
As I’m sure many have done before me, it’s relatively straightforward to construct a dilemma in this case – suppose some “classified information” clearly shows the President is committing treason, to the destruction of the country. What is the duty of the intelligence professional who comes across this information and recognizes it for what it is?
To keep it secret?
Or to expose it, at least to Congress, if not others?
If Paul’s answer is the former, with perhaps a caveat that some other part of the system will cover for it, I must answer that I think the government ethics system he’s employing is too primitive to be successful – keeping secret, destructive information secret is a recipe for disaster. Let me suggest this: an ethics system which can be employed against itself to the destruction of the using organization is a flawed system. Furthermore, it suggests that a new ethics system, no doubt based on the former to some extent, is necessary.
I don’t have enough hubris in ten lifetimes to pretend to construct such an ethical system, but I might suggest that this is a very hard problem, much in the tradition of Lawfare, and perhaps the answer is “Yes, the information can be released by the intelligence professional – but if such a release is not subsequently approved by some appropriate delegation of Congress, then the intelligence professional is in legitimate legal peril.”
It sounds enormously unfair, but it’s just a thought in any case.
