LAW MAY 18, 2010
by Gabriel Schoenfeld
W.W. Norton & Company, 309 pp., $27.95
In December 2005, The New York Times revealed a secret National Security Agency operation that spied on Al Qaeda’s communications. Six months later the Times reported that the U.S. government gained access to an international financial clearinghouse, which allowed the feds to track the financial transfers of Al Qaeda. By the Times’s own accounts, these programs achieved significant successes; but the disclosure surely compromised that effectiveness. In most countries, the reporters who broke these stories—Eric Lichtblau and James Risen—would have been placed in shackles and interred in the deepest dungeon, along with their editor, Bill Keller. In the United States, they receive prizes.
American law prohibits the disclosure of secrets. The Bush administration chose not to prosecute, but now Gabriel Schoenfeld steps into the breach and delivers the indictment of Lichtblau, Risen, Keller, and other members of the press who, in Schoenfeld’s view, placed their personal ambitions and the scoop-telling norms of their tribe above the security of the country. Schoenfeld’s indictment is grounded in a history of secrecy and law in the United States, which he provides as a “counter-narrative” to the Whig history of civil liberties advanced by the law professor Geoffrey Stone.
In his celebrated book, Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism, Stone recounts the history of U.S. government security measures taken during times of emergency. Like other sophisticated civil libertarians, Stone acknowledges that, both legally and morally, civil liberties can be compromised for the sake of national security—in principle. But he argues that in every case he examines—the quasi-war with France at the end of the eighteenth century, the Civil War, World War I, World War II, the Cold War, the Vietnam War—“the nation went too far in restricting civil liberties.” Measures that led to the internment, execution, and harassment of harmless people did not advance security, or they did so only a little at great cost to individual freedom, when less harsh means were available. Stone does not argue that all of the measures imposed during these emergencies were illegitimate, but he concludes that courts and the rest of us should be skeptical when the government claims today that some new liberty-compromising security measure is needed.
Schoenfeld argues to the contrary. He believes that often the nation has not gone far enough in restricting civil liberties. Painting on a narrower canvas than Stone, Schoenfeld argues that the United States has not worked hard enough to protect its secrets from government leakers and the press. Where it showed restraint, it should instead have cracked down.
The argument starts at the Founding. Schoenfeld notes that the founders valued secrecy, that the deliberations at the Continental Congress and the Constitutional Convention were held in secret, and in drafting the Constitution the founders permitted the new House and Senate to hold secret proceedings and the executive to keep secrets as well. The founders’ views anticipated those of successive government administrations, scholars, and commentators. Nearly everyone agrees that the government should keep at least some secrets, that some deliberations ought to be private, that spies should be prosecuted. And although journalists often celebrate government officials who leak to the press, nearly everyone else understands that leakers can cause harm, and in serious cases should be prosecuted.
Yet the real question—the motivation of the book—is whether journalists should be prosecuted for publishing secrets. Schoenfeld points out that the founders never thought that the First Amendment licensed the press to publish government secrets essential to national security. But the founding-era history turns up a fact deeply embarrassing to Schoenfeld’s thesis: “prosecutions for publication of leaks … do not appear in the historical record.” The founders and their nineteenth-century successors complained about leaks but never prosecuted those who published them. This fact cuts against Schoenfeld’s wisdom-of-the-founders argument, as it suggests that even if the founders believed that journalists should not publish secrets, they also believed that journalists should not be prosecuted if they do.
The government’s reluctance to prosecute the press did not end in the nineteenth century. Herbert Yardley was an accomplished cryptographer who ran what he called the American Black Chamber, a code-breaking agency within the State Department after World War I. Yardley’s unit solved the codes and ciphers of dozens of foreign governments. By cracking the Japanese code, it enabled the American government to score a diplomatic victory at the Washington Naval Conference of 1921, which produced an early arms control pact that limited the size of the British, American, and Japanese navies.
Later Yardley was dismissed from his position, and he decided to cash in. He wrote a book that revealed all the major intelligence operations of the Black Chamber, as well as its organizational structure and budget, and even “actual intercepts, decrypts, and translations of the communications not only of our adversaries but of our allies as well.” The book hit the bestseller lists not only in the United States, but also in Japan, where it stoked outrage at treacherous Uncle Sam. Dozens of countries updated their codes, frustrating American surveillance of its adversaries—among them, Japan, whose improved code-breaking system would pose challenges to the United States in the years leading up to Pearl Harbor. Still, Yardley and his publisher were never prosecuted. Prosecutors feared that a trial would spur more revelations.
This pattern recurs. During World War II, a powerful member of Congress, Andrew Jackson May, learned from the military that the Japanese improperly deployed depth charges against American subs, and announced this fact to the press, which duly reported it, enabling the Japanese to fix the problem and to kill more Americans. Colonel Robert McCormick, the publisher and editor of the Chicago Tribune, an enemy of Franklin Roosevelt and an opponent of war, published secret mobilization plans shortly before Pearl Harbor. The Tribune later announced that the United States had cracked Japanese codes. But again there were no prosecutions. The defendants were too politically powerful, and the government feared that secrets would be disclosed at trial and press attention would alert enemies of the importance of the disclosures.
In the 1960s a radical magazine called Ramparts disclosed CIA funding of the National Student Association and other organizations. Later that decade, Daniel Ellsberg leaked a series of war secrets to the press, culminating in the 1971 publication of the Pentagon Papers. In 1974, Seymour Hersh splashed onto the broadsheets revelations of CIA surveillance of antiwar protestors and other dissidents in the United States. Former CIA agents joined the carnival, publishing books that exposed CIA operations and even the names of agents, one of whom was subsequently murdered by a Greek terrorist group. In 1979, a radical magazine called The Progressive attempted to publish instructions for constructing a hydrogen bomb.
No one was prosecuted. In only a few instances was the government able to obtain injunctions or other remedies against leakers and journalists, and to extremely limited effect. The first successful prosecution of a leaker did not take place until 1985, when Samuel Loring Morison, a U.S. naval intelligence analyst, was convicted of disclosing secrets to Jane’s Fighting Ships, in the hope of obtaining a job. In 2006, a defense department employee would be convicted of turning over secrets to AIPAC. Such was the effort to plug holes in a dike long ago swept away by an ocean of leaks. And although a few journalists have gone to jail for refusing to disclose sources, no journalist or media outlet has ever been prosecuted for disclosing government secrets.
Schoenfeld is too scrupulous an intellectual to be a successful polemicist. His nuanced historical account constantly undercuts his argument that the government should prosecute journalists who publish leaks. The fact is that, even with the benefit of hindsight, and the opening of archives, it turns out to be difficult to show that intelligence breaches caused much harm.
As Schoenfeld recounts, historians disagree about the effects of the publication of Yardley’s book. It caused diplomatic embarrassment, but of a ritualistic kind: what government thinks that it is not being spied on by other governments? It alerted foreign intelligence services that the United States had cracked their codes, but intelligence services constantly update their codes, precisely because they know that foreign intelligence services are likely to crack existing codes.
May’s and McCormick’s disclosures were certainly outrageous, but Japanese archives offer no evidence that Japan paid attention to them. (In the case of May, it is hard to blame the press for reporting a news conference of a Congressman.) The Pentagon Papers contained out-of-date information that was mostly in the public domain. The Progressive also had merely brought together publicly available information—how much could this have helped a foreign power intent on manufacturing a hydrogen bomb? In yet another instance, the Washington Post learned of an operation to tap an underwater Soviet communications cable; the CIA threatened to prosecute the Post if it revealed the secret; then it turned out that the Soviets had already discovered and removed the tap. It is plausible that many of the disclosures compromised intelligence operations and aided enemies, but aside from the death of a single agent, concrete examples are hard to come by.
Meanwhile, the government in many of these cases acted little better than the leakers. High-level government officials would insist on the apocalyptic consequences of a revelation, only to be caught short by some absurd fact—for example, that the key diagrams in the hydrogen bomb article had been reproduced from an article in the Encyclopedia Americana written by Edward Teller. The CIA would claim that leaks dissuade allies from sharing secrets with it, while leaking with abandon when doing so served its purposes. Schoenfeld accuses government agents of anti-Semitism in the AIPAC case, in the process undercutting his argument that prosecutions should be encouraged.
Finally, the press has in fact showed a measure of restraint. Here again Schoenfeld’s scrupulous reporting weakens his own argument. Prior to the 1960s, the press engaged in voluntary self-censorship (famously not reporting the impending Bay of Pigs invasion), and indeed collaborated with the CIA. All of this changed in the 1960s, when the press learned not to trust the government, which, after all, repeatedly lied to it. For all the irresponsible and even ridiculous rhetoric of journalists (mockingly quoted by Schoenfeld), even today the press will not disclose certain secrets.
What is different today is that journalists no longer accept government assurances that a particular disclosure will cause some vague, long-term injury to national security. Instead they demand hard proof that disclosure will immediately cost lives or cause other significant harms. This self-restraint does not reflect superior righteousness, it reflects market forces: the decline of the press’s trust in government tracks the time trend of public opinion, which nonetheless is still capable of outrage if the press goes too far. The loss of subscribers and advertisers is far more terrifying than the majesty of the law.
This is surely why Keller at the Times heldthe NSA surveillance story for more than a year. Risen and Lichtblau uncovered the program in the summer of 2004. The White House persuaded Keller to withhold the story, and the Times stayed its hand until December 2005. What caused the Times finally to print it? Schoenfeld eviscerates Keller’s lame excuses, arguing that he finally published the story only because Risen was going to put it in a book, and that Keller did not want his paper to be scooped by its own reporter. But Schoenfeld also omits a critical fact. In April 2005, the CIA confirmed that no weapons of mass destruction were in Iraq. The Bush administration had either lied about its motives for going to war or badly mishandled its public justification. In either event, its credibility was shot. Keller must have realized that if the Times withheld stories on the Bush administration’s say-so, then the Times’s reputation would collapse along with that of the Bush administration if and when those secrets finally came out.
This helps to explain why the Bush administration did not try to prosecute the Times, and, indeed, why prosecutions of journalists for publishing secrets have never taken place. The reason has nothing to do with the First Amendment, which, as Schoenfeld notes, does not bar prosecutions of journalists for disclosing secrets. Rather, the government has strong pragmatic and political reasons not to try journalists. The pragmatic reason is the graymail threat: if prosecution occurs, journalists can disclose whatever information they have held back, and their lawyers can demand the disclosure of further secrets so that an adequate defense can be mounted. In addition, the government fears that the fact of prosecution discloses vital information to enemies—namely, that the disclosure is significant rather than trivial, authentic information rather than a spurious plant, and hence worthy of prosecutorial resources.
But even more important is the political cost of prosecution. When governments prosecute journalists, the public assumes that the government wants to silence critics. The press enjoys an important advantage over the government. The press can tell the public: “here is everything we know.” And the government can only respond: “trust us.” The government cannot tell you why the press acted badly—why journalists should go tojail—without disclosing more secrets. Who are you going to believe?
Secrets disable as well as empower. Those who keep secrets must take extraordinary steps to retain trust. It is in this sense that the journalists’ false but unshakeable belief that the First Amendment allows them to publish anything they want, as self-serving as it is, expresses a sociological truth that Schoenfeld and many constitutional lawyers do not understand. Statutes and constitutional precedent permit the government to prosecute journalists for publishing secrets, but politics and prudence ensure that it never does.
Eric A. Posner is a professor at the University of Chicago Law School.