As you’ve probably noticed, I’m working through two competing concerns: (1) the legal and ethical obligations that come with holding a security clearance and (2) the ethical and moral obligation to bring deeply problematic government action to light. In comments elsewhere, I’ve put forth two examples of what I think are relatively straightforward kinds of cases:

  • Publicizing war crimes that the state is covering up; and
  • Indiscriminately dumping government diplomatic cables.

The first provides a justification for disclosing classified information, the second is completely without justification. Without in any way denying that the US government’s treatment of Bradley Manning has been horrific and outrageous, I think it is clear that Manning crossed the line when he downloaded every government cable he could get his hands on and turned them over to Julian Assange.

I probably shouldn’t have used Jeffrey Toobin’s New Yorker piece as an excuse to initiate discussion, because, well, it was a piece by Jeffrey Toobin. But, thankfully, Josh Marshall and Josh Barron have both written thoughtful pieces on these issues.Barro makes the critical points:

My evaluations are based on the same premise as Marshall’s: America’s conduct of intelligence collection and foreign policy is broadly a good thing, though the government is overreaching in some places.

This can justify strategic leaks that are specifically aimed at pushing back the overreach. It does not justify any leak simply because it undermines our foreign operations.

Manning fails that justification test, and Snowden may pass it.

Snowden has a couple of big things going for him in arguing that his leak was morally right. His leaks (at least, those that have become public to date) regard broad public policies, not specific operations. And they are targeted to matters that are of broad public concern and that the public is likely to find objectionable.

He is fostering a valuable public debate that we wouldn’t be having without his leaks. That’s very different from Manning, who did a data dump containing a handful of useful nuggets of information amidst a vast sea of information that should have been kept private.

But for a few reasons, that’s probably not good enough for me to say Snowden deserves to get off the hook.

First, we don’t know what else Snowden leaked. We do know that the Guardian and the Washington Post have declined, so far, to publish certain information that he gave them. Perhaps other components of Snowden’s leaks are more damaging to national security and less relevant to the public debate.

Second, even if what Snowden did was morally right, he should probably be tried and sent to jail. Letting people get away with illegal leaks, even justified ones, will encourage more leaking — and most of the leaks that are encouraged won’t be justified. Snowden may have made the right judgment here, but we shouldn’t be encouraging people with security clearances to take declassification decisions into their own hands.

My hope is that leakers in possession of information that really needs to be public will decide, as Snowden did, that it is worth taking the risk of punishment. Actually excusing them from punishment will tilt the balance too far away from control of sensitive information.

We do know a bit more, now, about what Snowden may have leaked: information about what foreign systems US intelligence officers have hacked. As Fox reports:

The former CIA employee who leaked information about the U.S. surveillance programs before fleeing to Hong Kong is claiming the NSA has also been hacking computers in Hong Kong and mainland China since 2009, saying he wants Hong Kong to decide his fate.

Edward Snowden reportedly told the South China Morning Post newspaper Thursday that the NSA has been monitoring the Chinese University of Hong Kong and public officials and citizens in the city.

Snowden told the paper he believes there have been more than 61,000 NSA hacking operations globally.

This is, I must confess, totally man-bites-dog territory. What’s next, France is famous for industrial espionage? Chinese hackers steal intellectual property? Israel spies on the United States? Regardless, I’m pretty sure that this does not cross Barro’s test. Still, the previously disclosed stuff might.

What do you all think?