Balancing and the Unauthorized Disclosure of National Security Information: A Response to Mark Fenster's Disclosure Effects: WikiLeaks and Transparency

Abstract

In his recent article, Disclosure’s Effects: WikiLeaks and Transparency, Mark Fenster argues that WikiLeaks demonstrates the “impossibility” of balancing the public benefits of national-security-information disclosure with the effects of the disclosure on the nation’s national security and foreign policy interests. This article is a continuation of Professor Fenster’s previous work examining the costs and benefits of transparency. In his prior work, he fleshes out the criticisms of the current transparency regime that appear somewhat fleetingly here: namely, that we should question the assumption that transparency promotes an informed and engaged electorate as well as better, more responsive, and accountable government. I wholeheartedly agree with Professor Fenster’s argument that calculating the costs and benefits of the disclosure of national security information is a frustratingly difficult task. I am not sure anyone truly disagrees with that argument. But an underlying assumption of Professor Fenster’s argument is that balancing the effects of disclosure against the benefits to the public discourse are at the heart of the laws relating to the unauthorized disclosure of national security information by government insiders and outsiders. Although the various statutes and regulations aimed at controlling the disclosure of sensitive national security information may strive to strike the right balance between the harm to national security and the free flow of information in a democracy, judges themselves are rarely required to do this kind of explicit balancing. While balancing is common in other areas of the First Amendment, such as the rights of government employees, the reporters’ privilege, and the right to engage in anonymous speech, it is not clear that balancing is required in cases involving the unauthorized disclosure of national security information.