The New Republic

Bush's Law: The Remaking of American Justice
By Eric Lichtblau
(Pantheon, 384 pp., $26.95)

I.

In May 1940, defying a congressional ban, President Franklin D. Roosevelt secretly authorized warrantless wiretapping inside the United States. His attorney general, Robert Jackson, had ordered a halt to the wiretapping a few months earlier, after the Supreme Court made clear that the Communications Act of 1934 prohibited it. But when J. Edgar Hoover got word to Roosevelt that Jackson had blinded the FBI to German espionage activity in the United States, the president ordered Jackson to reverse his decision and to authorize wiretaps against suspected subversives. "I am convinced that the Supreme Court never intended any dictum ... to apply to grave matters involving the defense of the nation," Roosevelt weakly reasoned, adding that it is "too late to do anything about it after sabotage, assassinations and 'fifth column' activities are completed." Jackson "had not liked this approach to the problem," the attorney general would remark in his memoir. A dozen years later he penned the most famous Supreme Court opinion delineating the limits of presidential war power. But in the minatory spring of 1940, with the Germans racing toward Paris and Dunkirk, the young attorney general acquiesced in Roosevelt's order.

Much in this episode resonates today: Roosevelt's anxiety to find terrorists hidden among civilians before they could strike without warning; his crystalline statement of the prevention doctrine; his frustration with surveillance laws designed for a different problem; and his contortion of the law, with the assistance of the Justice Department, to meet a scary threat. And yet the task of our current president (and of the president who will soon succeed him) in thwarting terror attacks is more challenging than anything that Roosevelt faced. Al Qaeda and its friends are harder to find than the Nazis, because our society is more complex, its citizens are more jealous of their liberties, and the government is more constrained by law. They are harder to deter, because they are willing to commit suicide and they have no homeland to protect. And they are more lethal, because of the spread of ever smaller and more powerful weapons and our increased reliance on vulnerable infrastructures.

For terrorists to do anything really bad to us, they must be able to communicate, to coordinate their plans, and to secure the financing necessary to see their plans through. That is why the government's ability to identify terrorists and to monitor their communications and financial transactions is vital. It is often said that modern communications technologies--the Internet, anonymous and encrypted email messages, disposable cell phones, and the like--give terrorists an asymmetrical advantage. Yet the same technological advances that help terrorists plot to deliver weapons of mass destruction can also make it easier for the government to discover and preempt terrorist plots. Since September 11, the government has aggressively exploited its technological advantages.

These advantages work best, and often only, in secret. When terrorists learn how we monitor them, they adapt to prevent detection. Unfortunately, they have learned a lot in the last seven years. As head of the Justice Department's Office of Legal Counsel from 2003 to 2004, I was "read in" to several top secret intelligence programs related to terrorist surveillance. Beginning on December 16, 2005, every one of these programs, and another one about which I knew nothing, was disclosed by the nation's leading newspapers. On that date, The New York Times published a story by Eric Lichtblau and James Risen about what became known as the Terrorist Surveillance Program, which was the National Security Agency's secret program of monitoring suspected terrorists' international phone calls and e-mail messages without a warrant. Over the next eight months, Lichtblau and Risen followed up this blockbuster with scoop after scoop purporting to disclose many classified details about the government's surveillance capabilities.

Prying these closely held secrets from the government and publishing them in the Times is an impressive journalistic feat, and Lichtblau and Risen won a Pulitzer Prize and other prestigious awards. Lichtblau has now written a book that tells a panoramic if largely familiar tale about how the Bush administration overreacted to September 11, swept up innocents, broke the law, and damaged American traditions. The most interesting aspect of the book is Lichtblau's insider account of why the Times decided to publish his surveillance stories, and of how the paper views its role in reporting on secret government actions to protect national security. It is not a pretty story--not for the Bush administration, and not for the Times.

If secrecy is vital to surveillance, it is also dangerous, for citizens cannot hold government accountable for what they do not know, and government tends to overreach when it acts outside public scrutiny. It is not hard to see why later iterations of the warrantless wiretapping program that Robert Jackson failed to stop resulted in so many abuses. Gathering information on wires (and later in other media) is relatively simple for the government to do and relatively hard for the target to detect. It is easier and safer to wiretap someone than to conduct physical surveillance or to infiltrate his organization. Since the marginal cost of surveillance is low, resource constraints pose only a small barrier to listening in on others in the target's network for whom there is little or no suspicion of wrongdoing. Once surveillance begins, it is hard to shut off, for fear of what might be missed--a problem that grows as data storage becomes ever cheaper. And because all this happens in secret and--until 1972--without meaningful regulation or oversight, the government often goes too far and then covers up its mistakes and excesses.

In 1972, the Supreme Court ended warrantless surveillance of suspected domestic subversives, and in 1978 Congress put legal restrictions on the surveillance of foreign agents suspected of subversive activity. But the congressional restrictions are complicated, and the executive is entrusted with interpreting and enforcing them against itself in secret--a recipe for opportunism. So Congress created two other mechanisms to replicate checks and balances out of public view. The president must report important surveillance activities to the congressional intelligence committees in a classified setting; and he must seek a warrant from a secret court before listening in on many communications by foreign agents, including suspected terrorists. These checks also have their limits, for Congress and the secret court usually do not know what the president does not tell them. The whole system, in other words, depends on the executive branch's good faith in using it.

In the summer and fall of 2004, Lichtblau and Risen learned that the executive branch had been secretly skirting this system and wiretapping terrorism suspects on American soil without a warrant. The Times sat on the story through the presidential election, and, according to Lichtblau, killed it in December 2004. It did so, he says, because the White House insisted that the program was lawful, and that its disclosure would "do serious and perhaps irreparable harm to national security" by tipping off the terrorists to our capabilities. Lichtblau was unpersuaded by these arguments. His government sources had told him that the program had legal problems. And for Lichtblau "it was never clear what Osama bin Laden and his henchmen would gain from learning--confirming, really--that the United States spy services were listening to them."

But the editor of the Times, Bill Keller, reacted differently. He would later claim not to have thought much about the program's legality in the fall of 2004. But he worried a lot then about national security. "I've never had a case where the government raised such strident alarms, at such a high level, as the NSA eavesdropping program," Keller told Lichtblau. On this basis Keller decided not to run the story. "It was a close call," reports Lichtblau, but his editors felt "the concerns about the national security threat posed by public disclosure of the program held sway."

The Times revived the story in the autumn of 2005, according to Lichtblau, because Risen, frustrated with the paper's decision to kill his piece, had the "heretical idea" of disclosing the Terrorist Surveillance Program in his own forthcoming book about the CIA. Once the fear of being scooped by its own reporter persuaded the Times editors to reconsider running the story, Lichtblau and Risen did new reporting that confirmed their suspicions that the White House had been breaking the law. "There were deep concerns within the administration that the president had authorized what amounted to an illegal usurpation of power," Lichtblau concluded. "The image we'd been presented a year earlier in our meetings with the administration of a united front--with unflinching support for the program and its legality--was largely a facade. The administration, it seemed clear to me, had lied to us."

This lie, says Lichtblau, was the main reason the Times' editors reversed themselves. He says less about a second reason that Keller later claimed was critical. When the Times began to rethink running the NSA story in the fall of 2005, the White House again pushed back hard, first with a meeting hosted by the president's senior counterterrorism officials, and then with an extraordinary plea from President Bush himself. Lichtblau does not say why these meetings failed to persuade Keller and Times publisher Arthur Sulzberger Jr., but in 2006 Keller said that his reporters had "reworked the story into a version that, we were confident, would not provide useful information to terrorists who were the targets of the eavesdropping program." And so the Times told the world about the Terrorist Surveillance Program.

II.

For Lichtblau, this episode vindicates the press's role as a watchdog over government. Since the shadow system of checks and balances for ensuring presidential accountability in secret had collapsed, and since the Times had reason to think the government had been breaking the law, it was right, in Lichtblau's view, for the Times to restore political accountability through reporting.

But judging what the Times did is really a more complicated affair. For one thing, the government had taken steps to fix its legal problems before the Times got the story or published it. (Lichtblau's book discusses some aspects of my own role in these efforts.) For another, the Times' unauthorized disclosure of the Terrorist Surveillance Program and related details about American surveillance capabilities was itself probably a crime. Most news media publications of classified information do not implicate criminal liability because the pertinent laws--especially ones in the original Espionage Act of 1917--are not drafted clearly enough, or targeted at the press with adequate precision, to survive the scrutiny that the First Amendment demands before holding journalists liable. Yet there is a law that is perfectly clear, which is directed at what the Times did in its original Terrorist Surveillance Program story and in subsequent stories about the government's surveillance capabilities.

That law is Section 798 of the U.S. Criminal Code. Section 798 grew out of a recommendation in 1946 by the Joint Congressional Committee for the Investigation of the Attack on Pearl Harbor to ban disclosure of all classified information. Congress thought this proposal too broad, but in 1950 it did enact a more modest law banning publication of what the House Judiciary Committee described as "a small category of classified matter, a category which is both vital and vulnerable to an almost unique degree." Included within this category is "communication intelligence," a term defined to mean "all procedures and methods used in the interception of communications." Section 798 says that "whoever knowingly and willfully ... publishes ... in any manner prejudicial to the safety or interest of the United States ... any classified information ... concerning the communication intelligence activities of the United States" shall be fined or imprisoned not more than ten years. This law is a "model of precise draftsmanship" that shows "concern for public speech" by limiting its prohibitions "to a narrow category of highly sensitive information," noted Harold Edgar and Benno Schmidt in 1973, in their definitive study of Section 798. It was supported by the American Society of Newspaper Editors (including The New York Times) as a reasonable national security restriction on the press, and passed the House and Senate with little controversy.

Lichtblau does not mention Section 798 in his book, but he rejects the idea that journalists should be prosecuted for reporting classified information. His view is "modeled after the independent press corps envisioned by Justice Hugo Black in the Pentagon Papers case [in 1971], when he wrote that the rights of a free press were protected in the Constitution 'so that it could bare the secrets of the government and inform the people.'" In that decision, in 1971, the Supreme Court declined to enjoin The New York Times and The Washington Post from publishing the Defense Department's classified internal history of the Vietnam War, because Congress had not authorized such an injunction and the First Amendment placed a high bar on prior restraints. But the Pentagon Papers case did not say that journalists are immune from post-publication punishment. To the contrary, three justices stated that the First Amendment was not a bar to prosecutions, and at least two others implied as much. Justice White, joined by Justice Stewart, said he would have "no difficulty in sustaining convictions" of the newspapers under Section 798 even though a prior restraint was unwarranted.

To say that the Times and Lichtblau committed a crime is not to say that they will be prosecuted for it. The government has never prosecuted a member of the press for revealing classified information. In 2006, Attorney General Alberto Gonzales floated the possibility, but the administration has taken no public action and likely never will. In part this is because a successful prosecution would invariably reveal yet more classified information. Just as important, it would be very controversial for the government to use its most powerful coercive tools against press critics who disclosed controversial and possibly illegal government action. The legal and political battle would be monumental. There is a good chance that no jury would convict. And the process would harm the Justice Department, and also the country. This is why an administration angered by leaks and not normally shy about pushing legal prerogative has been unwilling to pull the trigger on prosecuting the Times.

Whether the government deploys it or not, Section 798 is still relevant to assessing what the Times did. Lichtblau does not explain how the publication of "vital" communications intelligence in the name of democracy can be squared with the democracy's judgment that this sort of publication is wrong and should be punished. Perhaps he would say he was engaging in civil disobedience--that what the government was doing was so bad, and its disclosure so important, that he is willing to suffer personal sanctions to vindicate higher principle. But I doubt it. Throughout his book, Lichtblau displays a surprisingly thin-skinned and even self-pitying attitude toward criticism of his work, which he likens to the "Swift boating" of John Kerry. He also complains that Justice Department investigations of his and Risen's sources have made his job harder and less rewarding.

Section 798 is relevant also for a more important reason. The government's practical inability to enforce this law against the press, and Lichtblau's inability to imagine why he might be criticized for disclosing sensitive classified information, raises the ancient question of who is guarding the guardians. Does the Times exercise its watchdog role over secret government activity wisely? Lichtblau assures us that it does, noting that the Times editors serve as a "built-in backstop, a check and balance" on reporters, and adding that for "the editors to even consider running a piece, we knew that there had to be a legitimate public interest that outweighed any potential harm to national security."

But despite the Times' delay in reporting the original surveillance story, there are many reasons to be skeptical. Saying the editors are a check on what the Times publishes is like saying we can trust the president to curb the excesses of his subordinates. It affords little comfort, especially since the public has no access to the process of the editors' decision-making. One wants to know precisely how the editors weigh the public interest in knowing against national security harm. Even if the editors possess the expertise to identify and to assess these trade-offs (something that is doubtful), is their judgment distorted by the pursuit of fame and profit? The separation of powers, the institution of elections, and the free press help to ensure that government's self-directed motives do not get out of hand. But there are few checks on the press itself. The most powerful constraint on the press is the marketplace of ideas--but this marketplace is designed to sort out truth, and it is no corrective when journalists irresponsibly disclose sensitive national security information. The absence of a real sanction from the government should make us worry that the press's judgments about whether publication unduly harms the national interest are skewed.

 
III.

These worries are borne out less by the original Terrorist Surveillance Program story than by the flood of Lichtblau-Risen stories that followed. In June 2006, for example, Lichtblau and Risen reported on a secret government program involving the Society for Worldwide Interbank Financial Telecommunication (SWIFT). SWIFT is a global banking consortium based in Brussels that facilitates international financial transfers. Soon after September 11, it began providing the United States with financial information related to possible terrorist-related transfers in response to U.S. administrative subpoenas. This information is crucial in the fight against terrorism. It helps the government to disrupt terrorists' financial transfers and thus makes it harder for them to kill. And it helps to identify terrorists and their sympathizers and thus makes them easier to stop.

When the Times got the SWIFT story, the government again begged it not to publish, and the Times again went ahead. Lichtblau's explanations are revealing. He says the SWIFT program rested on a "largely untested legal theory" and was "arguably extralegal." Lichtblau is not a lawyer, and beyond quoting such conclusory judgments from anonymous sources, he does not tell us how or why he reached these conclusions. But his insinuations that the government was acting illegally are simply wrong. Of course the government was trying new and more aggressive tactics after September 11, but the SWIFT program violated no American privacy laws and is a straightforward exercise of the power that Congress gave the president in the International Emergency Economic Powers Act. These facts eventually led the Times' public editor, Byron Calame, to criticize the paper for running the story. Lichtblau does not mention his criticism.

Lichtblau also tries to downplay the significance of the SWIFT program for national security. He quotes from a 9/11 Commission staff report that says that "completely choking off the money to al Qaeda and affiliated terrorist groups has been essentially impossible." That is true, but the report goes on to say that the goal is not to completely cut off the money, but rather to make it harder to obtain. Lichtblau also neglects to tell his readers that the otherwise critical Final Report on the 9/11 Commission Recommendations, issued six months before his SWIFT story ran, gave the government its only A grade--an A-, to be exact--for "vigorous effort against terrorist financing." Despite the obvious importance of terrorist financing, Lichtblau finds "oblique at best" claims that his SWIFT disclosures harmed national security. "That the U.S. government was actively monitoring terrorist-financing was no secret," he reasons. Perhaps not. But how it was doing so was a secret until disclosed. Lichtblau reports that the SWIFT program helped capture an Al Qaeda associate named Hambali, the architect of the bombings in Bali in 2002. It is much less likely to work now that the Times has told everyone about it.

So the Times incorrectly evaluated both the legality of the SWIFT program and the impact on national security from its disclosure. Lichtblau implicitly responds to this criticism when he claims that the aim of the Times "was never to declare the program legal or illegal, effective or ineffective." Its objective was instead to "lay out the facts of the program and let people decide for themselves what they thought of it." And Lichtblau adds that the story was, "above all else, an interesting yarn about the administration's extraordinary efforts since 9/11 to stop another attack," as if its aesthetic merit were relevant to the decision to publish. This is hardly the careful exercise of judgment about whether public accountability warrants a compromise of national security that Lichtblau and the Times promised us. It is, instead, the casual renunciation of such judgment.

The Times' miscalculation of the national security impact of running this "interesting yarn" is typical of the other surveillance stories the paper ran. Lichtblau frequently insists that his stories did not endanger national security because the terrorists already knew that we were watching and listening to them. But the Times has never done any reporting on whether Lichtblau is right. Nor has it explained why Keller thought the stories were reported in ways that did not harm national security. If the Times looked into the matter with the same vigor with which it pursued the surveillance stories, it would discover that these stories have significantly harmed our national security. I say this a little awkwardly, because it is difficult for me to explain without violating my own obligation not to disclose classified information helpful to our enemies. (This is one reason why the government says so little about why certain leaks are damaging: the information necessary to do so, if revealed, would make matters worse.) But I say it also very confidently.

Some of the Lichtblau-Risen stories mentioned the successes of the operations in question. The SWIFT story noted the Hambali capture. The original Terrorist Surveillance Program story acknowledged that that program led to the disruption of a plot by an Al Qaeda agent named Iyman Faris to bring down the Brooklyn Bridge, as well as planned fertilizer bomb attacks by Al Qaeda in Great Britain. Lichtblau's own stories make clear that the terrorists do not always take full precautions in their communications. One reason that they do not do so is that the programs were, as Lichtblau never fails to point out, "secret," and thus they were not known generally even if they were known to some. Yet terrorists naturally ramp up their precautions and make themselves harder to find when government successes under a secret surveillance program are reported in the newspaper.

Lichtblau and his colleagues did not just report on the fact that the United States was aggressively tracking terrorists. They disclosed, much more damagingly, many operational details about how it did so. They reported not only the details of the SWIFT program, but also on data mining and pattern analysis of telephone and e-mail information, the government's listening in on purely international communications that "transit" through the United States, the close cooperation of private telecommunications firms in these efforts, and government analysis of ATM transactions, credit card purchases, wire payments, and more. I am not permitted to say which of those stories are true, but I can say that the true ones involved matters that were unknown to our enemies, and therefore gave the government a big advantage in tracking them. Their disclosure helped terrorists to avoid forms of communication that we were good at monitoring, and instead to switch to channels of communication in which we lack comparative advantage.

And then there are the more diffuse harms caused by the Times' revelations. Once the highly classified programs were disclosed, it became hard for the government to explain its actions without revealing--sometimes inadvertently--related surveillance activities. To take one example, Lichtblau reports that in the course of discussing the Terrorist Surveillance Program, former Senator Bob Graham, who was once the chairman of the Senate Intelligence Committee, revealed that many purely international communications--from, say, Afghanistan to Indonesia--"transited" through the United States in ways that could easily be detected by the American government. This revelation, Lichtblau says, induced the Times "to probe more deeply into areas that were regarded as offlimits just a few days earlier," and led the paper to report on yet more detailed secret surveillance techniques.

The Times also reported on private industry's secret cooperation with the government. Such cooperation is an essential element of our national surveillance capability, and its disclosure has dimmed the willingness of corporations to help. Lichtblau notes, for example, that his SWIFT program revelations diminished the banking consortium's cooperation. And it is well known that foreign intelligence services are ever more wary about sharing information and engaging in joint intelligence operations--including, presumably, surveillance operations--because American secrets tend to end up on the front pages of American newspapers.

Last year Michael McConnell, the national intelligence director, declared that public discussion of American surveillance capabilities "means that some Americans are going to die, because we do this mission unknown to the bad guys because they're using a process that we can exploit and the more we talk about it, the more they will go with an alternative means." McConnell is imprecise here: we cannot now say for sure that we will be hit again, or that the surveillance stories will be a contributing cause. It is more accurate to say that the stories made it easier for terrorists to plan and to execute attacks, and in that sense endangered the physical safety of Americans.

But if McConnell went too far, so too does Lichtblau when he calls McConnell's claim a "startling assertion" that represents a "philosophy antithetical not only to a free press, but to a free country." McConnell was not attacking a free press; he was merely describing the consequences of the exercise of its freedom. It is not startling, nor is it antithetical to a free press and a free country, nor is it demagoguery, to acknowledge that public discussion of the government's once-secret surveillance techniques in a war that depends on stopping terrorists before they strike will help the bad guys, and will likely result in more people dying than would otherwise be the case. It is simply to state the realities of terrorism and counter-terrorism. Lichtblau's failure to acknowledge these realities, and his suggestion that doing so is somehow un-American, reflects a flawed understanding of both the First Amendment and national security, and exacerbates concerns that the press cannot be trusted to get the balance right.

 
IV.

My criticism of The New York Times is not meant to downplay the dangers of executive branch secrecy, or to deny that press scrutiny of secret government activity is important to keeping government accountable. Fear of leaks causes national security officials to think twice about what they do, and deters them from doing things that they should not do. The problem is that the press operates with its own imperatives and with a romantic conception of itself and under few real constraints, and sometimes it publishes stories that harm national security while furthering little public interest. How can we maintain the virtues of a vigorous press, but minimize the disclosure of secrets that should remain secret?

The answer to this large question lies with the executive branch of government. Many people think that the executive branch should crack down more on leakers, because the regularity of leaks without sanction legitimizes leaking and leads to more. The Bush administration has tried to punish those who leak details of its surveillance and interrogation programs, but it has had a hard time identifying them--a difficulty that will only grow if, as seems likely, Congress enacts a new shield law to protect journalists from disclosing their sources. And even when leakers are discovered, it is hard to prosecute them, for many of the same reasons that it is hard to prosecute members of the press--poorly drafted laws and fear of disclosing leaks.

Yet the absence of sanctions is not the real problem. The real problem, and the source of many of the most harmful leaks in the past few years, is the perception within the government of illegitimate activity. Secret surveillance activities that began in 2001 did not leak until after a legitimacy crisis had already developed, beginning in June 2004, around the Abu Ghraib scandal and the leaked interrogation memos. Lichtblau explains that it was the Terrorist Surveillance Program's circumvention of checks and balances, and the attendant anxiety about the program's legality, that led people inside the government to tell him about it. By contrast, the secret surveillance court that the administration bypassed issues thousands of warrants each year, many of them newsworthy--and yet the court's work never leaks, because the process is widely viewed as legitimate: expressly sanctioned by Congress, supervised by Article III judges pursuant to known rules, and reported publicly and regularly by the executive.

A root cause of the perception of illegitimacy inside the government that led to leaking (and then to occasional irresponsible reporting) is, ironically, excessive government secrecy. "When everything is classified, then nothing is classified," Justice Stewart famously said in his Pentagon Papers opinion, "and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on selfprotection or self-promotion." And he added that "the hallmark of a truly effective internal security system would be the maximum possible disclosure," noting that "secrecy can best be preserved only when credibility is truly maintained."

The Bush administration defied these precepts and suffered as a result. Instead of employing the secrecy stamp sparingly, it did so extravagantly. Instead of engaging the press and public about the disclosable aspects of what it was up to, the Bush administration shut off the press, heightening its suspicion and mistrust. Instead of working with Congress or the secret surveillance court to update its surveillance powers after September 11, it took a go-it-alone approach. The administration kept the very existence of the program from all but the secret court's chief judge, Lichtblau reports, and gave congressional briefings only to the congressional leadership (the "gang of eight") rather than to both intelligence committees, many of whose members would later complain that they were briefed incompletely. The administration even short-circuited normal procedures inside the executive branch. It kept the number-two person in the Justice Department out of the loop. And it didn't share legal opinions related to the program with the National Security Agency that was running the program.

The secrecy of the Bush administration was genuinely excessive, and so it was self-defeating. One lesson of the last seven years is that the way for government to keep important secrets is not to draw the normal circle of secrecy tighter. Instead the government should be as open as possible, and when secrecy is truly necessary it must organize and conduct itself in a way that is beyond reproach, even in a time of danger. In the end, not Congress, nor the courts, nor the press can force the government to follow these precepts. Only the president can do that.

Jack Goldsmith is a professor at Harvard Law School and the author of The Terror Presidency (Norton). He worked in the Bush administration from 2002 to 2004.

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