Government LeaksChelsea Manning Army Leak, 2009-10 | Edward Snowden NSA Leak, June 2013

Resources » Government Leaks



In the past decade, several controversial cases have emerged involving government leaks. Late in 2009, Chelsea Manning (at that time called by his birth name, Brad), a U.S. Army Intelligence Analyst in Iraq began transferring to WikiLeaks what would eventually amount to 750,000 government documents. In 2013, Edward Snowden, an American IT professional, gave journalists thousands of classified documents that he had taken from the NSA while doing contract work for them. Manning and Snowden were both charged under the Espionage Act of 1917, among other charges. While Manning served part of a prison sentence for her leak, Snowden fled America before disclosing his stolen documents and has since then received asylum in Russia. Snowden’s and Manning’s efforts to bring government secrets to light have been alternately lauded and condemned, revealing deep differences in our perception of the legitimacy of government secrecy and the rights and duties of government agents.


The Law


There are two First Amendment questions when it comes to government leaks: what are the rights of the government employee who gives away government information, and what are the rights of those who publish that information? There is little question that the government can fire employees for releasing classified information, just as a company can fire and sue its employees for giving away secrets (see Garcetti v. Ceballos). There can also be criminal charges for theft of records, just like other kinds theft, although the Department of Justice does not typically prosecute for theft of intangible records (e.g., orally reported secrets or electronic documents).

Most important, however, are crimes related to security. It is illegal to give any information (classified or otherwise) with the intent of hurting the U.S. or aiding a foreign enemy. It is also illegal to disclose classified information relating to intelligence communication (e.g., releasing information about codes or encryptions used in government communication). These criminal laws are all considered to be consistent with the Supreme Court’s current view of First Amendment speech protections. To disclose such information would directly harm the United States.

When it comes to the rights of the publishers of stolen, classified information, there is more latitude. In New York Times v. United States (1971), the Supreme Court decided, in keeping with the principles of Schenck and Brandenburg, that the government could not punish a newspaper for publishing state secrets if they did not pose an immediate danger to national security. This principle was extended more generally in Bartnicki v. Vopper (2000) to anyone publishing or disclosing illegally acquired information as long as they did not personally participate in the illegal acquisition. The NYT v. U.S. and Bartnicki decisions were a natural development from New York Times v. Sullivan (1964), which had established a fairly extreme standard of press immunity. One important exception, however, was the decision in Branzburg v. Hayes (1972) that the press does not have immunity from government compulsion to reveal sources.




Chelsea Manning and Adrian Lamo’s Chat Logs

Adrian Lamo, a former high-profile hacker, turned in Manning to authorities after she confided in him about her leaks. Lamo subsequently released the logs of their internet chats to Wired magazine, which decided to publish them in their entirety in 2011.

Read the chat logs at Wired Magazine.

The Afghan War Diary

This is the name given by WikiLeaks to more than 91,000 reports that Manning leaked documenting the U.S. war in Afghanistan.

The Afghan War Diary on WikiLeaks

The Iraq War Logs

This is the name given by WikiLeaks to 391,832 reports that Manning leaked documenting the U.S. war in Iraq. The collection has been organized and presented differently by different news organizations.

The Iraq War Logs on WikiLeaks

Geoff Morrell, Statement from the Department of Defense

The Defense Department issued a response to WikiLeaks’ publication of the Iraq War Logs in October, 2010.

Read the response at the New York Times.

Chelsea Manning’s Statement to the Military Court

Below you can hear the full audio of Manning’s statement at her court martial, which was later leaked.

Access the audio broken down into excerpts with transcripts at the Freedom of the Press Foundation.

United States vs. Pfc. Manning

The record of Manning’s trial was never officially released to the public but much of it has been obtained through FOIA requests and through anonymous leaks. A nearly-complete record of the case has been compiled by Alexa O’Brien on her personal website.

Find court documents at Alexa O’Brian’s website.

Chelsea Manning: The Dystopia We Signed Up For

Manning published this editorial in the New York Times on September 13, 2017.

Read it at the New York Times.

The NSA Archive

In 2013, Snowden released thousands of files documenting the surprising extent of the NSA’s surveillance efforts. The American Civil Liberties Union has a searchable archive of these files on its website, as does

Search the NSA Archive at ACLU.

Find Snowden’s files at

Edward Snowden: A Manifesto for the Truth

Snowden sent this short statement to Der Spiegel on November 1, 2013, which published it in German.

Read Martin Eriksson’s translation at his website.

Read the original publication at Der Spiegel.




Hennessey, Susan and Helen Klein Murillo. “The Law of Leaks.” Lawfare, February 15, 2017.

This article gives an excellent and accessible run-down of the law pertaining to leaks.

Find it Lawfare Blog.

Rosenzweig, Paul, Timothy J. McNulty, and Ellen Shearer. Whistleblowers, Leaks, and the Media: The First Amendment and National Security. American Bar Association, 2015.

Find it on Amazon.

Sagar, Rahul. Secrets and Leaks: The Dilemma of State Secrecy. Princeton: Princeton University Press, 2013.

Find it on Amazon.

Find it on JSTOR (restricted access).

Fidler, David P., Ed. The Snowden Reader. Bloomington: Indiana University Press, 2015.

Find it on Amazon.

Find it on JSTOR (restricted access).

Pozen, David E. “The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information.” Harvard Law Review 127, No. 2 (2013): 512-635.

Abstract: “The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, roughly a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice. This Article challenges the standard account of that disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances an alternative theory of leaking. The executive branch’s ‘leakiness’ is often taken to be a sign of organizational failure. The Article argues it is better understood as an adaptive response to external liabilities (such as the mistrust generated by presidential secret keeping and media manipulation) and internal pathologies (such as overclassification and bureaucratic fragmentation) of the modern administrative state. The leak laws are so rarely enforced not only because it is hard to punish violators, but also because key institutional actors share overlapping interests in maintaining a permissive culture of classified information disclosures. Permissiveness does not entail anarchy, however, as a nuanced system of informal social controls has come to supplement, and all but supplant, the formal disciplinary scheme. In detailing these claims, the Article maps the rich sociology of governmental leak regulation and explores a range of implications for executive power, national security, democracy, and the rule of law.”

Find it on JSTOR (restricted access).

Kitrosser, Heidi. “Classified Information Leaks and Free Speech.” University of Illinois Law Review No.3 (2008): 881-931.

Abstract: “This article provides a timely response to the recent trend toward ‘cracking down’ on classified information leaks and the absence of significant scholarship, theory, and doctrine on classified information leaks. The article begins by explaining the President’s vast secret-keeping capacity and the capacity’s manifestation in the classification system. This capacity is particularly manifest in the problems, at least partly intrinsic, of broad executive branch classification discretion and overclassification. The author then describes the major constitutional arguments for deference to political branch decisions to criminalize classified information leaks and publication of the same: such leaks are not speech but conduct; such leaks—even if speech—fall within the political branches’ wide ranging power to protect national security; and the judiciary lacks the expertise to second-guess such political branch decision making. The author refutes these arguments by explaining that a common thread underlying them is the notion of vast deference to political branch—particularly executive branch— determinations regarding what information disclosures constitute national security threats. The author contends that this notion’s fatal flaw is that the Constitution’s speech- and transparency-related checks and balances not only do not vanish upon the wielding of a classification stamp, but are of special constitutional importance in this context given the vast secret-keeping capacities of the executive branch. Finally, the author considers the doctrinal implications of the preceding analysis and proposes judicial standards to test the First Amendment validity of prosecutions for classified information leaks.”

Download it from the Illinois Law Review.

LoPilato, Krystal. “Garcetti v. Ceballos: Public Employees Lose First Amendment Protection for Speech Within Their Job Duties.” Berkeley Journal of Employment and Labor Law 27, No. 2 (2006): 537-544.

“Under constitutional and employment law, the government generally cannot punish you for speaking freely, but your boss can. What happens when your boss is the government and you have expressed some unwelcome information or ideas? Public employees sit at an uncomfortable intersection between “citizen” and “worker,” and the degree to which their speech is protected from employer retaliation has been the subject of recent controversy. In Garcetti v. Ceballos, the Supreme Court addressed this
conflict over where to draw the boundaries of First Amendment protection
for government employees.”

Find it on JSTOR (free access).

Katz, Alan M. “Government Information Leaks and the First Amendment.” California Law Review 64, No. 1 (1976): 108-145.

“This Comment analyzes the extent to which the first amendment protects government employees who leak government information and the press that publishes such information. After setting out the
interests of the parties involved when an unauthorized leak occurs, the author suggests tests to determine the extent of first amendment protection in this area.”

Find it on JSTOR (restricted access).

Methven, Bruce E. “First Amendment Standards for Subsequent Punishment of Dissemination of Confidential Government Information” California Law Review 68, No. 1 (1980): 83-105.

“In interpreting the first amendment, the judiciary often faces a conflict when the issue involves ‘government information,’ i.e., information within the government’s control or custody, including closed hearings and meetings. On one side of the conflict is the public’s interest in obtaining government information that is relevant to participatory democracy. The countervailing consideration is the sovereign’s interest in keeping certain government information confidential; legitimate government functions can be seriously harmed if such information is disseminated. To resolve fairly the conflict between these two interests the judiciary must create a system of review that will maintain some  confidentiality while allowing enough informed discussion to prevent the misuse of power and permit effective self-government.”

Find it on JSTOR (restricted access).

Bella, Patricia L. “WikiLeaks and the Institutional Framework for National Security Disclosures.” The Yale Law Journal 121, No. 6 (2012):1448-1526.

Abstract: “WikiLeaks’ successive disclosures of classified U.S. documents throughout 2010 and 2011 invite comparison to publishers’ decisions forty years ago to release portions of the Pentagon Papers, the classified analytic history of U.S. policy in Vietnam. The analogy is a powerful weapon for WikiLeaks’ defenders. The Supreme Court’s decision in the Pentagon Papers case signaled that the task of weighing whether to publicly disclose leaked national security information would fall to publishers, not the executive or the courts, at least in the absence of an exceedingly grave threat of harm. The lessons of the Pentagon Papers case for WikiLeaks, however, are more complicated than they may first appear. The Court’s per curiam opinion masks areas of substantial disagreement as well as a number of shared assumptions among the Court’s members. Specifically, the Pentagon Papers case reflects an institutional framework for downstream disclosure of leaked national security information, under which publishers within the reach of U.S. law would weigh the potential harms and benefits of disclosure against the backdrop of potential criminal penalties and recognized journalistic norms. The WikiLeaks disclosures show the instability of this framework by revealing new challenges for controlling the downstream disclosure of leaked information and the corresponding likelihood of ‘unintermediated’ disclosure by an insider; the risks of non-media intermediaries attempting to curtail such disclosures, in response to government pressure or otherwise; and the pressing need to prevent and respond to leaks at the source.”

Find it on JSTOR (restricted access).

“Government Leaks and the Espionage Act at 100.” We the People, National Constitution Center Podcast

Discusses the use of the Espionage Act in prosecuting recent government leaks.