The government’s struggle to protect sensitive national-security information continues, even in the age of Obama. In April, a federal grand jury indicted Thomas Drake, a former National Security Agency official, on ten felony charges arising from his alleged leaking of classified information about secret NSA programs to a Baltimore Sun reporter.
A few weeks earlier, Attorney General Eric Holder had approved a subpoena addressed to New York Times reporter James Risen, ordering him to appear before a grand jury to answer questions regarding his confidential source for a chapter in his 2006 book, State of War, about the CIA’s attempts to infiltrate Iran’s nuclear program. His lawyer vowed to fight the subpoena, asserting that, in reporting the classified information, Risen “adhered to the highest standards of his profession.” Risen was no stranger to reporting on leaked national-security information: Sharing a byline with Eric Lichtblau in a December 2005 front-page Times story, Risen blew the cover off the NSA’s electronic terrorist-surveillance program.
Despite doing incalculable damage to the nation’s anti-terrorism effort, and probably violating federal anti-leak statutes, Risen and the Times have not, to date, been charged with a crime for publishing the details of that program. Indeed, no one — neither reporter nor source — has faced criminal charges for the leak or publication. Risen and Lichtblau were, instead, awarded a Pulitzer Prize.
The Lichtblau-Risen story serves as the starting point for Gabriel Schoenfeld’s enthralling new book, Necessary Secrets. Schoenfeld uses the episode as an illustration of the dramatic tension between two ever-warring interests: first, the government’s need to keep its most sensitive national-security information out of the hands of those who would use it to harm the nation; and second, the public’s right to know what its government is up to.
The NSA program was a remarkably successful effort to keep tabs on al-Qaeda’s worldwide operations. Because most international communications travel in some way through switches and similar electronic checkpoints in the U.S., the NSA had a rich source of information about terrorist capabilities at its fingertips. The program was not without its detractors: There were disputes at the highest levels of the Bush administration over certain aspects of its legality. But the Times learned initially of the program apparently not from the participants in those disputes but from an operational functionary, a Justice Department lawyer named Thomas M. Tamm, who anonymously passed details of the classified program to the Times. Schoenfeld explains that Tamm acted not only because he objected to the program itself, but also because he was “pissed off” at other administration policies and hoped that the story would damage President Bush’s 2004 reelection hopes.
The Times’ plan to publish the story led to an extraordinary confrontation, which Schoenfeld recounts. In a sitting room just outside the Oval Office, President Bush and his national-security team pled with Times publisher Arthur Sulzberger Jr., executive editor Bill Keller, and other Times higher-ups not to publish what they had learned about the program. The Times had sat on the story for more than a year in response to earlier administration entreaties, but was determined in December 2005 finally to publish it. According to Keller, Bush warned the Times that “there’ll be blood on your hands” (Keller’s paraphrase). His pleas fell on deaf ears, and the Times published the story.
#page#Keller issued a statement explaining the decision to publish. He said the paper had developed “a fuller picture” of the internal government debate surrounding the legality of the program, and would now expose the program because “we were convinced there was no good reason not to publish [the story].” But Schoenfeld exposes the falsity of this self-serving account. While the mainstream media came to regard the program as an historic presidential abuse of power, Schoenfeld reminds the reader that the Bush administration had fully briefed the top-secret court that oversees government intelligence wiretapping several times, and even adjusted the program in response to concerns raised by one of the judges. Congressional intelligence-committee leaders were briefed more than a dozen times. Hardly the stuff of unchecked power. And the Times’ decision to publish the story was actually prompted by Risen’s plan to publish his book in January 2006. “In a manner of speaking the Times was being blackmailed by its own reporter,” writes Schoenfeld: Either publish the story or I’ll scoop you.
Schoenfeld examines the greater questions posed by the NSA-program debate: If the program was so valuable to the government’s efforts to keep track of al-Qaeda, why has no one been prosecuted for the leak? Risen and Lichtblau reportedly worked more than 20 sources familiar with the program’s details. All of them would have signed anti-disclosure agreements. So why have Tamm and the others gotten off the hook?
Equally important, what of the New York Times? Should we be comfortable with media that make unilateral decisions about what secrets should be kept and what can be disclosed to the public and our enemies? Or should there be a price paid by reporters like Risen and Lichtblau, who profit from the publication of our most sensitive national-security secrets? In short, in an America often obsessed with the public’s “right to know,” isn’t there still information that the public does not want to know?
The Times defended the story as part of a rich tradition of an adversarial press envisioned by the Founders. “The people who invented this country,” Keller wrote of yet another decision to publish details of another classified program in 2006, “saw an aggressive, independent press as a protective measure against the abuse of power in a democracy and an essential ingredient for self-government.”
Schoenfeld exposes that claim as hogwash. He paints a much different picture than Keller’s publish-with-immunity account of media responsibility. Benjamin Franklin famously observed that, while liberty of the press should be exercised with full vigor, journalistic libel of the government should be met “in moderation” with “tarring and feathering.” The First Continental Congress — and later the Constitutional Convention — operated in utter secrecy, with participants swearing an oath to keep their deliberations from public view.
While advocates of greater openness were many, even they recognized the need for protecting certain information. Even as he labeled secrecy an abomination, Patrick Henry explained that he was “not an advocate for divulging indiscriminately all the operations of government,” leaving especially military matters and other “affairs of great consequence” to the protection of government secrecy. The same Founders who adopted the First Amendment also adopted harsh criminal penalties for speech-related conduct in the Alien and Sedition Acts — measures Schoenfeld rightly describes as “the most extensive infringements on freedom of the press” in our history. Though that legislation did not criminalize the act of leaking government information to the press, it hardly demonstrated a Founding era committed to the principles that Bill Keller now describes as founding truths.
Schoenfeld’s book is a useful recital of the government’s struggle to protect sensitive information, especially during wartime. Modern anti-espionage statutes, including criminal prohibitions of the disclosure of classified information, were born of World War I. Those statutes went much farther in restricting freedom of the press — once again criminalizing seditious and even “disloyal” speech against the government. (The Supreme Court repeatedly upheld the legislation.) Congress even required that foreign-language newspapers submit to pre-publication government screening. Against these measures, Schoenfeld concludes that the Bush administration’s anti-terrorism policies were the picture of restraint.
#page#The story of classified leaks having to do with World War II actually started years before the war: In 1931, a cryptographer named Herbert O. Yardley took it upon himself to disclose the government’s “Black Chamber” program. As Schoenfeld explains, Yardley “let spill almost every secret that the U.S. government held,” the equivalent today of revealing the complete communications operation of the NSA. Among the secrets he disclosed was the U.S. deciphering of Japanese codes — a disclosure that caused the Japanese to make major changes to their codes, changes that may in turn have contributed to the failure a decade later to “connect the dots” before Pearl Harbor.
While the leaker (affectionately known today as the “whistleblower”) has long been respected, Schoenfeld points out that the “patriotic press” has not always taken today’s hostile, anti-government posture. Indeed, during World War II, the federal government actually provided certain sensitive information regarding atomic-weapon testing to the press, as part of an effort to prevent its accidental publication. The press complied willingly. The New York Times even lent its science reporter to the Manhattan Project to serve as its official reporter.
So where did the patriotic press go? Schoenfeld chalks up the change of media attitudes to the Vietnam era, especially the Pentagon Papers dispute, in which the government unsuccessfully sought to prevent publication of a 7,000-page classified study of decision-making in Vietnam, warts and all. The government’s extraordinary effort to impose a prior restraint on the publication of this information — much of which was years old — was rejected by the Supreme Court. Notably, however, the Court left open the possibility of subsequent prosecution — both of the leaker and of the publisher.
Yet these prosecutions are few and far between. On rare occasions, the government will prosecute a small fish like Thomas Drake who leaks classified information. Yet to date, the government has not sought to prosecute media outlets that decide — often over the pleas of government officials — to publish that information. Often the reason is itself a matter of national security: Prosecutions are messy affairs and threaten to disclose details of classified programs. In other cases, the reason could be called political. When controversial programs are disclosed, government officials may conclude that picking a fight with the media is only digging the hole deeper. Given the multitude of such stories and the important First Amendment principles involved, the government must exercise some restraint in deciding whether to prosecute. The irony is that the greater the damage done by the leak, the more likely nothing comes of it in a court of law.
While Schoenfeld is certainly not calling for tireless prosecution in the case of every leak, he concludes that letting the big ones go comes at significant cost. As Justice Robert Jackson famously observed, the Constitution is not a suicide pact. Deciding where to draw the necessary lines is a continuing challenge. Schoenfeld’s compelling account rightly suggests that the First Amendment must not be viewed as a source of absolute immunity for a media establishment that would take the decision of where that line should be drawn away from “we the people,” and put it in the hands of a few unelected editors.
– Mr. Coffin, a lawyer at Steptoe & Johnson LLP in Washington, D.C., served as counsel to Vice President Cheney.