Jewish law and Washington leaks

To leak or not to leak.

That is the question apparently facing an inordinate number of people in Washington these days. This especially seems to be the case within the various agencies that guard our national security. The leaks, however, also seem to be coming from within the White House and Congress. Anecdotal evidence, at least, suggests that the first six months of the Trump presidency has seen more leaks than any previous start-up presidency in recent memory.

So far, only one leaker has been identified and arrested. It is alleged that a 25-year-old Georgia woman, Reality Leigh Winner, leaked a highly classified National Security Agency report that concluded that Russian military intelligence hackers did manage to break into some voter records last year.

Another leaker of sorts, by his own admission, is former FBI Director James Comey — “of sorts,” because Comey caused non-classified memos he wrote himself to be leaked to a news outlet. He wrote them, they were not classified, and he no longer was a government employee when they were leaked.

That being said, how would Jewish law view the leaks and the leakers?

The question is not answered so easily. The fact of a leak itself is not the determining factor. Many other issues are involved. Among them are the circumstances that surrounded or encouraged the leaks, whether theft of any kind was involved, whether the leaks were meant for personal gain, and whether the leaks violate any of the nuanced variables attached to the laws of “bad speech” (lashon hara).

In almost every instance, the overwhelming majority of leaks since January 20 have centered around the broad issues of national security and US international interests. Narrowly defined, they involve two questions:

The first question is whether Russia in any way interfered with and thereby changed the outcome of the 2016 national election. It is almost universally accepted outside the Trump White House that Russia did interfere with the election, and in a big way.

Whether that interference brought about a Trump victory would require getting into the head of every person who voted for Donald Trump, or who voted for neither Trump nor Hillary Clinton. That is impossible. A convincing circumstantial case can be made that the flood of fake revelations about Mrs. Clinton turned off many of her would-be voters. However, she did win the popular vote by a hefty margin of 3 million votes. Her loss thus properly could be attributed to poor campaign strategy, which ignored several crucial states she needed to win in the electoral college.

Circling around the question of Russian interference is the second question, the why of that interference. Was it just another attempt by Russia to destabilize the world’s greatest democracy at its heart — the election process? Or was it an attempt to put into the White House an administration that would put Russian interests ahead of American ones?

A case in point is NATO. Vladimir Putin has declared publicly that NATO is an ever-growing threat to Russia’s security. The collapse of NATO thus is a high Russian priority.

Until noon on January 20, standing in Russia’s way if it might try to eliminate this claimed threat was NATO’s number one supporter, the United States. Now, the United States is seen as a potentially destabilizing influence inside NATO. For his part, President Trump also has been unwilling to offer any serious criticism of Putin or Russia, although others in his administration have done so.

Trump’s attitude toward Russia and his tepid views about Putin appear to be behind the flood of leaks from the security agencies, and notably the FBI, the CIA, and, most tellingly, the NSA itself. The fear seems to be that Russia has a pipeline into the White House — that there are one or more people there who are in Russia’s pocket and capable of influencing the president of the United States.

There simply is too much smoke for the leakers, none of whom seem motivated by personal gain, to ignore. (The media does not pay leakers, and they potentially could serve time in federal prison if caught.)

That brings us to Jewish law, which almost never is black and white.

One area of Jewish law is g’neivat da’at, the theft of knowledge. The law is most often applied in financial matters. Misleading advertising or misinformation campaigns (something of which the Russians are guilty) qualify. However, it also applies to “stealing” intellectual property. The materials being leaked are classified reports prepared by individuals for their employer, the United States government. It is the government’s intellectual property.

The way to avoid g’neivat da’at in intellectual property matters is to properly cite the source of the information being revealed, as long as the information itself is in the public domain. In the case of leaks, the source (a government report of some kind) is revealed, but the material is classified. Even citing the source, therefore, does not cleanse the act of g’neivat da’at.

On the other hand, there is the overarching question of the need to know. Is the material being kept secret something the people need to know? It can be argued, quite convincingly, that the people have a need to know anything that could damage their national security.

Because protection of life overrides nearly all other commandments, and potential threats to national security inevitably lead to protection of life, the “need to know” would seem to override “theft of knowledge.”

Take Comey’s motive, for example, even though his leaking probably did not violate any law. He leaked his memos to influence the appointment of a special prosecutor who would be independent of the administration, and who would be charged with the task of getting to the whole truth about Russia, its interference in our last election, and its possible ties to Trump and/or some of his associates. This motive is illustrative of the motives of other leakers, including Reality Leigh Winner.

Then there are the “bad speech” elements. Many of the leaks involve such people as Lt. Gen. Michael Flynn (ret.), President Trump’s fired national security adviser, and Jared Kushner, Trump’s son-in-law and senior adviser, among other Trump associates. Lashon hara makes no distinction between truth and falsehood. It is as much lashon hara to tell Reuven a truth about Shimon that Shimon has no need to know, as it is to tell Reuven a lie about Shimon.

In the end, how Jewish law should judge the leaks and the leakers must depend on what we finally learn about the underlying issues.