When does the truth trump secrecy?

When The Washington Post Aug. 3 released substantial chunks of the transcripts of President Donald Trump’s contentious telephone conversations last January with the president of Mexico and the prime minister of Australia, even some journalists were taken aback.

David Frum, senior editor at The Atlantic and a former speechwriter for President George W. Bush, called the leaking of the transcripts “unprecedented, shocking and dangerous.” The incident likely would deter other world leaders from talking candidly on the phone with the president of the United States, he warned.

But the Columbia Journalism Review editorialized that the Post “far from being criticized ... should be commended” for having published the American president’s sometimes heated exchanges with Enrique Peña Nieto and Malcolm Turnbull.

Mixed reactions to a major leak aren’t uncommon, any more than the leaking itself is. Attorney General Jeff Sessions, without giving numbers, recently said the Justice Department had more than tripled its probes of leaks and was looking into possible new ways of prosecuting leakers.

Leaks and consequences

Leaks don’t happen only in Washington — or only in the United States. Even the Vatican is no stranger to leaking. In the “Vatileaks” scandal five years ago, confidential documents concerning efforts to reform Vatican financial and administrative procedures found their way into the hands of an Italian journalist. The embarrassing episode was said to be a factor contributing to Pope Benedict XVI’s decision to resign in 2013.

All this points to a question: What is the ethical status of leaking?

As a matter of law, that’s not so easy to say.

Editors and reporters in the United States usually appeal successfully to the First Amendment guarantees of free speech and free press to defend their use of leaked materials and protect the identity of sources.

It’s a different story for leakers, depending on the nature and seriousness of what they leak.

Chelsea Manning, a transgender woman formerly known as Bradley Manning, spent seven years in jail for leaking hundreds of thousands of diplomatic and military documents obtained while serving as a low-level intelligence analyst in Iraq. Edward Snowden, a former CIA analyst and government contractor who leaked documents showing government spying activities, fled the country to avoid prosecution and now lives in Moscow.

Recent months also have seen the sporadic release of information around the investigations into interference in the 2016 U.S. presidential election.

Law aside, the morality of leaking falls under the heading of secrecy and confidentiality.

As a general rule, there is a defeasible presumption that secrets should be kept — confidentiality should be respected. To say this duty is “defeasible” means that, although the obligation to keep the secret is a real one, it can be set aside in light of some higher obligation.

The Church and secrets

An exception to this general rule is the so-called seal of confession — the duty of priests never to reveal anything disclosed to them in confession — where the obligation is absolute and allows no exception. Canon law provides the penalty of automatic excommunication for violations of the seal.

Aside from this sacramental secrecy, saying whether secrecy must be respected in a particular case is not so easy to do. The Catechism of the Catholic Church recognizes a fundamental “right to the communication of the truth” but it also recognizes a right and duty to keep secrets.

In particular, the Catechism says, professional secrets involving office-holders, soldiers, physicians and lawyers “must be kept, save in exceptional cases where keeping the secret is bound to cause very grave harm” (No. 2491).

In cases involving the public interest, that calls for a prudential judgment on the part of the would-be leaker and also by the media outlet regarding what constitutes “very grave harm.” Leakers of government secrets commonly say they acted in the public interest. But is the “public interest” that will be served by the leak greater than the public interest that would be served by keeping the matter secret? This is the kind of question that has no one-size-fits-all answer but instead must be judged on a case-by-case basis according to the facts of each case.

Similar moral principles apply to the media when it is a question of whether or not to publish material leaked to them. Does publishing serve the public interest or harm it? Does it leave intact or damage the good name and reputation of individuals who have done nothing wrong? Does it help more than it hurts? Desire to score a scoop easily clouds journalists’ judgment in this area.

The rights and duties of citizens in relation to government also generate moral obligations with a bearing on leaking. On the one hand, the Catechism of the Catholic Church says, people should regard the authorities as “representatives of God” (No. 2238). But they also have an obligation to refuse obedience to civil authorities “when their demands are contrary to those of an upright conscience” (CCC, No. 2242).

Moral complexity

As a practical matter, leakers don’t always have such altruistic motives for what they do. In fact, people leak for a variety of reasons that may include: publicizing the corruption or incompetence of superiors, taking revenge, self-promotion and the desire to advance a policy or practice they personally prefer while defeating one they personally oppose.

Ethical issues surrounding secrecy and leaking are complex and not easily settled. The complexity is suggested by the American moral theologian and ethicist Germain Grisez in his book “Living a Christian Life” (Alba House, $43.95):

“Even when some persons or groups continue to have a good and morally acceptable reason for wishing to conceal something, others sometimes can have a good and morally binding reason to reveal or investigate it. ... Thus, citizens who know that some of their leaders are preparing secretly to wage war and believe them to be acting rightly must protect the secret, while other citizens convinced the leaders are acting illegally and wrongly could be obliged to communicate what they know to other leaders or even the public at large.”

This moral complexity is illustrated in what are perhaps the two best-known leaking episodes in recent American history: the Pentagon Papers and Watergate.

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In the Pentagon Papers case, Daniel Ellsberg, a former military analyst, gave The New York Times a secret Pentagon study of U.S. involvement in Vietnam that profoundly affected public opinion on the war; charges against Ellsberg under the Espionage Act were dismissed. In Watergate, an anonymous insider nicknamed “Deep Throat” gave crucial information to The Washington Post for its coverage of the Watergate scandal. Deep Throat was later shown to be Mark Felt, the FBI’s associate director from 1972 to 1973.

Heroes or villains? People still argue about that.

Russell Shaw is an OSV Newsweekly contributing editor.