David Pozen '07 on The Law of Leakiness: Why the Government Criminalizes, and Condones, Unauthorized Disclosures

Friday, March 1, 2013 - 12:00pm
Yale Law School See map
127 Wall Street
New Haven, CT 06520
Event description: 

This is a National Security Group event, cosponsored by ISP Foreign Affairs in the Internet Age and Thomson Reuters Speaker Series.

It is a commonplace that the U.S. government leaks like a sieve.  For decades, presidents have complained bitterly about the constant flow of classified information to the media through unauthorized, anonymous sources.  And yet for all of this hand-wringing, the laws against leaking are almost never enforced.  Throughout U.S. history, only nine criminal cases have ever been brought against suspected leakers. 

In The Leaky Leviathan, Pozen dismantles the standard account of this phenomenon, which emphasizes the difficulties of apprehending and prosecuting leakers, and offers a new theory of leaks of how we should think about leaks. The executive branch's "leakiness" is often taken to be a sign of institutional failure. Pozen argues that it may be better understood as an adaptive response to key external liabilities -- such as the skepticism generated by presidential secret-keeping and media manipulation -- and internal pathologies -- such as overclassification and fragmentation across a sprawling bureaucracy -- of the modern administrative state.  The leak laws are so rarely enforced not only because it is difficult to punish violators but also because key institutional players have a shared interest in vilifying leakers while maintaining a permissive culture of classified information disclosures.

Bio: David Pozen '07 is an Associate Professor of Law at Columbia Law School. From 2010 to 2012, Pozen served as special advisor to the U.S. Department of State’s Legal Adviser, Harold Hongju Koh.  Previously, Pozen clerked for Justice John Paul Stevens on the U.S. Supreme Court (2009-2010) and for Judge Merrick B. Garland on the U.S. Court of Appeals for the D.C. Circuit (2008-2009).  From 2007 to 2008, Pozen served as special assistant to Senator Edward M. Kennedy on the Senate Judiciary Committee.


Foreign Affairs in the Internet Age