SECURITY STATES OCTOBER 10, 2013
The Obama administration is engaged in an unprecedented campaign to control the flow of information to the press, characterized by “legal policies . . . that disrupt relationships between journalists and government sources,” surveillance programs that “cast doubt on journalists’ ability to protect those sources,” and restrictive information disclosure practices “that make it more difficult to hold the government accountable for its actions and decision-making.” That is the harsh judgment of a report issued today by the Committee to Protect Journalists—a report lent weight and credibility because it is authored by the thoughtful, well-respected, and non-hyperbolic former executive editor of the Washington Post, Leonard Downie Jr. “The administration’s war on leaks and other efforts to control information are the most aggressive I’ve seen since the Nixon administration, when I was one of the editors involved in the Washington Post’s investigation of Watergate,” Downie writes, with establishment oomph, in his report.
Downie is undoubtedly correct to conclude that Obama administration policies have chilled government officials from talking to the press, and thus has made it harder for journalists to figure out and report on what the government is doing. But by focusing on this narrow issue that is of great concern to journalists, Downie misses the bigger story: Changes in technology and norms related to the secrecy system have swamped the government’s efforts to control information, with the result that, at least in the national security area, secrets are harder than ever for the government to keep.
A central theme in Downie’s story is how the government deploys technology to track and punish leakers—especially through aggressive surveillance techniques and by identifying digital evidence of officials communicating with journalists. What Downie does not emphasize is a point that Joel Brenner makes in his book America the Vulnerable: Technology also makes it harder for the government to keep secrets. It took Daniel Ellsberg months to copy and sneak out of RAND the seven-thousand-page Pentagon Papers reports. Chelsea Manning and Edward Snowden downloaded much more information much more quickly in a much smaller (and thus easier to hide) format. Technology defeats government secrecy in other ways. Digital signals emitted by airplanes, on-line flight-tracking databases, data-mining software, and instant global communication via the Internet enabled CIA sleuths around the globe to uncover the CIA’s secret rendition flights and prisons. Without digital camera technology, electronic mail, and the Internet, Abu Ghraib might never have been reported. And the secrets stolen by Manning and Snowden were much harder for the government to control once out because the Internet allowed their easy (and encrypted) global dispersion. In short, the same technologies that have empowered the government to know more about its employees and their communications with journalists have also empowered the employees and the journalists to disclose or discover more about government secrets.
Downie also reports that the government has changed the norm about prosecuting leakers and about harassing journalists who report leaks with legal proceedings. That is true, but once again Downie ignores how norms have changed in countervailing ways. Section 798 of the U.S. Criminal Code makes it a crime for anyone—including journalists—to publish “any classified information ... concerning the communication intelligence activities of the United States” that prejudices the safety or interest of the United States. Contrary to convention wisdom among journalists, neither the Pentagon Papers case nor any First Amendment principle precludes the government from prosecuting journalists for violating this statute—a statute that, compared to other criminal laws related to leaks, is narrowly and precisely drawn. There was a time when possible criminal liability under this statute seriously chilled newspapers and journalists from publishing information related to U.S. surveillance capabilities. But in contrast to the comparatively trivial publication of NSA surveillance secrets by the New York Times and others in 2005-2006, almost no one today is calling for journalists to be punished for publishing Snowden’s documents. As the tidal wave of Snowden-related publications about NSA techniques attests, journalists and their editors are no longer much worried about prosecution. And with good reason: it would be impossible, in light of this tidal wave, for the government to go after the press in this context.
Similar evidence of surprisingly powerful pro-journalistic norms were on display when the press disclosed that the Justice Department had secretly subpoenaed a Fox News reporter’s phone logs. President Obama was sufficiently embarrassed by this episode that he spoke out against it in May, noting that he was “troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.” Attorney General Holder effectively had to eat crow on the issue by meeting with journalists and changing DOJ rules about subpoenaing reporter notes. The bottom line is that the public, and thus also the government, are much more accepting today than in the past of the idea that it is a legitimate function of newspapers and journalists to publish classified information, including information related to surveillance techniques, if they can get it.
These and related changes in technology and norms help explain why classified information pours out of the government and is published every day in leading newspapers. (One of the inadvertently funniest aspects of Downie’s report is his serial quotations from prominent journalists who regularly report about highly classified information yet who complain to Downie about how hard it is to get secrets.) Indeed, the increased flow of classified information out of government as a result of these changes—changes exacerbated, of course, by the enormous growth in the size of the secrecy bureaucracy—is precisely why the government is trying so hard, yet with so little overall effect, to crack down on leakers. Downie’s report captures one side of this coin, but he misses the other.
Also missing from Downie’s report is any serious consideration of the harms to national security from massive leaks of classified national security information, or the government’s necessary duty to try to preserve these secrets as a part of ensuring national security. Downie interviewed me for the report, and he quotes me for the proposition that “too much secrecy and too much leaking are both bad.” But he doesn’t say much more about the costs of the massive increase in reporting of sensitive national security secrets over the last dozen years. The government, of course, cannot afford to ignore these costs, for it is charged with keeping us safe. The reason it has aggressively attempted to control the flow of national security secrets to the public is that it thinks—correctly in many instances, no doubt incorrectly in some—that disclosure of these secrets jeopardizes that security by making it harder to conduct operations against those who would do us harm.
Barton Gellman of the Washington Post, who has been reporting some of the Snowden leaks, wrote in 2003:
In practice, the flow of information [between government and press] is regulated by a process of struggle as the government tries to keep its secrets and people like me try to find them out. Intermediaries, with a variety of motives, perform the arbitrage. No one effectively exerts coercive authority at the boundary. And that’s a good thing.
Formal and informal structures keep this system in equilibrium. The letter and practice of law enforcement make it difficult, but not enormously dangerous, to broach secrets in print. That is a fine balance, and the status quo I’m describing depends on it. Those with lawful access to classified information are forbidden by contract to disclose it and face loss of their jobs, civil and potentially criminal penalties. A government official needs a very good reason to take these risks. Having found such an official, reporters and their publishers incur little risk themselves. No law on its face, and unambiguously, forbids me to possess or publish a government secret.
It is surely possible for a government to work harder than this to suppress its secrets. If we look overseas, most do. Every White House would prefer a tighter grip on its secrets. But on balance, at the systemic level, the behavior of recent presidents implies a tacit belief that such a grip cannot be had at acceptable cost.
This decade-old description of government-press relations remains true today. The government is not doing nearly everything it could to control secrets, for doing so would come at an unacceptable cost. It has become more aggressive in trying to control national security information leaks along some dimensions, but that is simply an attempt to restore the equilibrium of secrecy and transparency that suffered a shock as a result of 9/11, the massive growth of the secrecy bureaucracy, and changes in technology and norms that led to a massive outpouring of sensitive secrets in the last dozen years. Downie’s report makes the government’s response to these changed circumstances seem alarming, but in truth the response is simply an attempt—and almost certainly a losing one—to restore the equilibrium that prevailed before 9/11.