The Volokh Conspiracy - An Odd Argument:

Philosophy professor Thomas Nadelhoffer writes:

Last week U.S. Senator Rick Santorum suggested that the individuals who leaked information about our domestic and international surveillance programs were traitorous (see here). Moreover, he claimed that, "If leaking this information is traitorous, then publishing it is also complicit with that activity." Just to be clear, his first claim is that the act of leaking information about these surveillance programs amounted to treason--presumably because it involved divulging information that was supposed to be kept secret (i.e., outside the eyes and ears of the public and beyond the scope of the law). His second claim is that the news agencies that published the information that had been leaked were themselves complicit with treason--presumably because they made the public aware of the information that should have been kept secret in the first place.

For now I want to set aside the tricky issue of determining precisely what complicity involves (see here for an earlier discussion). Instead I simply want to suggest that if one takes Santorum's reasoning seriously, then it appears that he, too, is being complicit with treason. After all, if he had not brought the subject up yet again, the issue would be getting less public attention. Instead, Santorum's comments make the issue even more visible--which in turn means that the secrets that were improperly leaked and published are more visible. And, based on his own reasoning, bringing attention to the secrets is treasonous. Hence, Santorum is a traitor who by his own standards "must be pursued aggressively." Luckily, I just moved to Pennsylvania. So, I get to play a part in kicking him out of office in the fall.

Let's set aside the technical definition of "treason" for now (since Prof. Nadelhoffer isn't really focusing on it), and the difficult First Amendment question of whether publishing leaked secrets may be properly criminalized. Let's instead focus on Prof. Nadelhoffer's argument, "if one takes Santorum's reasoning seriously, then it appears that he, too, is being complicit with treason."

Isn't there a pretty clear and sensible distinction between (1) publishing for the first time material that may help terrorists evade surveillance, and (2) "mak[ing] the issue even more visible" by commenting on this publication?

The former takes a secret and publishes it to the world, to the point that many terrorists will see it for the first time (I realize many of them might have already suspected it, but there's suspecting and there's knowing, especially knowing that involves knowing some details). The latter takes an already published secret -- one that's been in lots of high-circulation newspapers, and has presumably been seen by most terrorists -- and at worst reminds people of it. Perhaps the program will thus be "more visible" to some people as a result of Santorum's reminder; but I suspect that it will be materially more visible to terrorists, who have strong personal reasons for paying attention to the program quite without Santorum's further comments. Or is there some philosophical argument supporting Prof. Nadelhoffer's position that I'm missing here?

	[Eugene Volokh, August 15, 2006 at 4:28pm] Trackbacks An Odd Argument: Philosophy professor Thomas Nadelhoffer writes: Last week U.S. Senator Rick Santorum suggested that the individuals who leaked information about our domestic and international surveillance programs were traitorous (see here). Moreover, he claimed that, "If leaking this information is traitorous, then publishing it is also complicit with that activity." Just to be clear, his first claim is that the act of leaking information about these surveillance programs amounted to treason--presumably because it involved divulging information that was supposed to be kept secret (i.e., outside the eyes and ears of the public and beyond the scope of the law). His second claim is that the news agencies that published the information that had been leaked were themselves complicit with treason--presumably because they made the public aware of the information that should have been kept secret in the first place. For now I want to set aside the tricky issue of determining precisely what complicity involves (see here for an earlier discussion). Instead I simply want to suggest that if one takes Santorum's reasoning seriously, then it appears that he, too, is being complicit with treason. After all, if he had not brought the subject up yet again, the issue would be getting less public attention. Instead, Santorum's comments make the issue even more visible--which in turn means that the secrets that were improperly leaked and published are more visible. And, based on his own reasoning, bringing attention to the secrets is treasonous. Hence, Santorum is a traitor who by his own standards "must be pursued aggressively." Luckily, I just moved to Pennsylvania. So, I get to play a part in kicking him out of office in the fall. Let's set aside the technical definition of "treason" for now (since Prof. Nadelhoffer isn't really focusing on it), and the difficult First Amendment question of whether publishing leaked secrets may be properly criminalized. Let's instead focus on Prof. Nadelhoffer's argument, "if one takes Santorum's reasoning seriously, then it appears that he, too, is being complicit with treason." Isn't there a pretty clear and sensible distinction between (1) publishing for the first time material that may help terrorists evade surveillance, and (2) "mak[ing] the issue even more visible" by commenting on this publication? The former takes a secret and publishes it to the world, to the point that many terrorists will see it for the first time (I realize many of them might have already suspected it, but there's suspecting and there's knowing, especially knowing that involves knowing some details). The latter takes an already published secret -- one that's been in lots of high-circulation newspapers, and has presumably been seen by most terrorists -- and at worst reminds people of it. Perhaps the program will thus be "more visible" to some people as a result of Santorum's reminder; but I suspect that it will be materially more visible to terrorists, who have strong personal reasons for paying attention to the program quite without Santorum's further comments. Or is there some philosophical argument supporting Prof. Nadelhoffer's position that I'm missing here?