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.
Because a Supreme Court term begins in October and ends by July, secrets about the Court’s decisions last at most nine months, and usually (as with the health care case) a much shorter period. Such short-fuse secrets are relatively easy to keep. The Court is less successful in keeping its deliberations secret over the long-term. Some justices make their papers public upon death. Clerks occasionally talk years after the fact—usually anonymously, but sometimes openly, as Edward Lazarus did in his 1998 book, Closed Chambers. But actual leaks of Court decisions are rare. The last one occurred in 1986, when ABC News reporter Tim O’Brien disclosed that the Court had decided to invalidate the Gramm-Rudman-Hollings balanced budget amendment. (The suspected leaker worked in the printer’s office.)
Secrecy-holders in the Court and the executive branch also face dramatically different personal incentives. The justices benefit from the reality and mystique of secrecy, and gain nothing from a leak. A justice can frame a case to the public in a written opinion and wins no internal leverage (and likely loses some) from disclosing the disposition of a case prematurely. The justices’ law clerks are sternly warned against leaking each summer by Chief Justice John Roberts, and they are intensely loyal to their bosses, all of whom despise breaches of confidence.
Law clerks also have a personal incentive to keep quiet. After one year at the Court, clerks can fetch hundreds of thousands of dollars in signing bonuses from law firms and are all but guaranteed successful careers. Leaking the Court’s decisions is one of the few ways to screw up these prospects. The leaker would have a hard time obtaining or keeping a license to practice law. And he or she would establish a reputation for irresponsible gabbing in a profession that places a super-high premium on the ability to keep confidences. No clerk wants to take these risks, especially since the chance of getting caught is relatively high.
Executive branch officials face a different calculation. Because of larger numbers, leakers are harder to identify. The criminal laws that ostensibly attach to national security leaks are vague, and successful prosecutions are difficult and rare. But most significantly, leakers can obtain various rewards from disclosing secrets.
One reward is the ability to explain national security and foreign relations policies to the public despite rampant over-classification of secrets. Absent disclosure of “secrets,” explained Max Frankel of The New York Times in an affidavit in the Pentagon Papers case of 1971, “there could be no adequate diplomatic, military and political reporting of the kind our people take for granted, either abroad or in Washington and there could be no mature system of communication between the Government and the people.” Senior officials (unlike Supreme Court clerks) regularly talk with reporters in ways that serve legitimate national security and democracy goals, and sometimes these conversations involve disclosure of classified information.
Government officials also spill secrets for less exalted reasons. For years, the Obama administration has disclosed details about its targeted-killing operations, in part to show itself, and especially the commander-in-chief, in a good light. As White House chief of staff, Rahm Emanuel “pushed the CIA to publicize its kinetic successes” for just this reason, reports Daniel Klaidman in his book, Kill or Capture. This manipulation of the secrecy system by senior officials sends a permissive message to subordinates that is the opposite of the one the justices send to their clerks. Emboldened lower level officials become disrespectful of the secrecy system and sometimes disclose classified information to spin an operation in their favor, to settle a bureaucratic score, or to appear important.
Of course, the executive branch still keeps innumerable secrets, and there is always the possibility that a case as freighted as Obamacare could leak through winks and nods. But the incentives for secrecy within the two institutions remain starkly different. So long as that’s the case, Washington’s most reliable keepers of secrets won’t be its national security officials, but its justices.
Jack Goldsmith is a law professor at Harvard and a member of the Hoover Institution Task Force on National Security and Law. He is the author of Power and Constraint: The Accountable Presidency After 9/11 and was a Supreme Court clerk for Justice Anthony Kennedy. This article appeared in the July 12, 2012 issue of the magazine.