Times of Clear and Present Danger

In the early history of our republic, the press enjoyed constitutional protection as well as practical statutory immunity when printing true facts, yet it refrained from reporting—among other salacious happenings—secrets of the military and intelligence agencies. After a decade where bloggers vied against Pulitzer-winning reporters for the greatest disclosure of classified information, something has clearly changed. In the new book Necessary Secrets, Gabriel Schoenfeld, a resident scholar at the Witherspoon Institute, explores the causes and effects of this loss and of the federal government’s inability to craft a meaningful response.

Up until the late 1960s,  the national interest, broadly defined, overruled First Amendment privileges in times of declared or undeclared war. In a 1961 speech to the American Newspaper Publishers’ Association, President Kennedy described the press’s duty amid circumstances surprisingly like today’s:

In time of war, the government and the press have customarily joined in an effort based largely on self-discipline, to prevent unauthorized disclosures to the enemy. In time of “clear and present danger,” the courts have held that even the privileged rights of the First Amendment must yield to the public’s need for national security.

Today no war has been declared—and however fierce the struggle may be, it may never be declared in the traditional fashion. Our way of life is under attack.…

On many earlier occasions, I have said—and your newspapers have constantly said—that these are times that appeal to every citizen’s sense of sacrifice and self-discipline. They call out to every citizen to weigh his rights and comforts against his obligations to the common good. I cannot now believe that those citizens who serve in the newspaper business consider themselves exempt from that appeal.

Schoenfeld captures the appeal admirably: “Along with the public’s ‘right to know,’ constantly invoked by the press, there is also something rarely spoken about let alone defended: namely the public’s right not to know.” Through its representative government, the public restricts secrets of military and intelligence operations to those with an operational requirement to know them or with responsibility to oversee these operations as part of the same democratic process. In the face of self-defined public interest, publishers who disclose legally protected information either act against that interest or, rejecting its definition, arrogate the authority to redefine the public interest. For those who betray these necessary secrets, the public prescribes penalties through various legislation including the Espionage Act of 1917 and the COMINT (Communications Intelligence) Act of 1946—both enactments supported by leading newspapers.

From the Revolution through World War II, the “patriotic press” (in President Franklin Roosevelt’s phrase) conducted its wartime operations with a remarkable self-discipline, marked by a few incredible lapses, though no prosecutions. Schoenfeld reviews these mind-boggling episodes, beginning in the Revolutionary War with the expulsion of Thomas Paine from Congress for publishing details of covert French support of the American insurrection. Other exceptions arose from hubris, as in the case of cryptanalyst Herbert Yardley’s 1931 memoir of cracking Japanese codes in the 1920’s, which made Japanese communications harder to read during the tensions building up to Pearl Harbor. Still others were politically motivated, such as the isolationist Chicago Tribune’s 1941 revelation of a military plan to invade occupied Europe (despite America’s official neutrality). Thoughtlessness has also played its role, as in 1943 when a congressman bragged to reporters that Japanese destroyers were failing to sink American submarines because their depth charges were fused to a shallower depth. These exceptions, however glaring and strange, proved the rule of self-discipline.

What happened to patriotism and self-restraint? In a word, Vietnam. Disenchanted and radicalized after a visit to Saigon, RAND contractor Daniel Ellsberg spent a few years passing top-secret information including the History of U.S. Decision-Making on Vietnam Policy—later known as the Pentagon Papers—to newspapers including the New York Times and the Washington Post. The Nixon administration, by seeking prior restraint on the newspapers (which the Supreme Court would deny) and ordering illegal “special investigations,” contaminated the case against Ellsberg and turned him into an anti-war folk hero. The newspapers were never indicted.

Fast-forward forty years. As in Vietnam, the Allies’ political will to sustain the war on terror is under attack. Among the enemy’s potential vulnerabilities are networks for directing and financing terrorist activities. To exploit such weakness in a clandestine, adaptive adversary requires not only superb intelligence-collecting capabilities but also the enemy’s ignorance of these capabilities.

Thus, the New York Times dealt severe setbacks to the U.S. war effort in 2006 by publicizing two extremely successful surveillance programs, one the so-called warrantless wiretapping program in the NSA, the second a financial surveillance program operated by the CIA and the Department of the Treasury. Times reporters Eric Lichtblau and James Risen, who broke both stories, won a Pulitzer for their efforts.

The NSA wiretapping case is an extremely complicated one in which both the White House and the Times were forced to act prematurely. The statute governing wiretapping, the 1978 Foreign Intelligence Surveillance Act (FISA), no longer served its original intent. (It did not require a warrant for wireless monitoring since international calls traveled wirelessly and domestic calls via landline, but cellular phones and fiber optics have largely reversed this distinction).

Despite modifications to FISA via the PATRIOT Act, international calls or emails between suspected terrorists were still off-limits without requesting a warrant from the FISA court, incurring a delay that was unacceptable given the time-sensitivity and sheer volume of intelligence requirements after 9/11. The Bush administration directed the NSA and the Justice Department to conduct warrantless wiretaps, and it informed Congressional leadership of both parties, as well as the head FISA judge, about its decision—and no official objected at the time. Times editor-in-chief Bill Keller exercised self-discipline and held the story for over a year, until the impending publication of Risen’s tell-all book. Instead of being scooped by his own reporter, he printed his story.

As the scandal grew, both the Department of Justice and the Times developed retroactive justifications. The Department of Justice eventually cited the executive’s unitary authority as Commander in Chief to override laws in times of national emergency, the same justification used against the Constitution itself by Lincoln during the Civil War and against the Neutrality Act by President Roosevelt in 1940. President Bush rejected the possibility of going back to Congress for a new wiretapping law because doing so would alert terrorists to the NSA’s actions, not to mention weakening this unitary authority by implying the need for Congressional authorization.

Keller, on the other hand, justified the Times’ story by raising “legal and civil liberties questions” about Bush’s decision. His justification is weakened (or rendered “woefully inadequate,” to quote the Times ombudsman) by two facts: not only did he sit on a story of what he now claims is an illegal action for over a year, but he then broke the story after these legal concerns had been addressed through changes to the program. If we take him at his word, Keller knowingly broke the COMINT Act because his concerns with the potential violation of one law trumped his obedience to another. Thus, both the executive branch’s and the Times’ elaborate rationalizations boil down to claims of being above the law.

The case of the Terrorist Finance Tracking Program, on the other hand, is instructive in its simplicity. Not only was Congress again fully informed, but it had granted the executive branch authority to conduct such operations in 1977. Having obtained a warrant to do so, the Treasury was monitoring the interbank network as permitted by U.S. law. The Times ombudsman would eventually declare the program entirely legal and regret the publication of what Lichtblau conceded was “above all else an interesting yarn about the administration’s extraordinary efforts since 9/11 to stop another terrorist attack.” The financial surveillance program, it turns out, was merely spooky, at least to those who chronically distrust the nation’s intelligence apparatus.

Schoenfeld attributes this pervasive distrust among journalists to a skeptical and often hostile attitude toward American government cultivated in the nineteen-sixties. I would attribute it more narrowly to hostility toward American national security policy—although when the Washington Post runs a three-day, page-one exposé of the inefficiencies of Obamacare a la “Top Secret America” I’ll gladly retract the point.

The point of contrasting the NSA and Treasury cases is not merely that the second breach is more egregious. Both breaches clearly violate the COMINT Act, which provides for ten years imprisonment for anyone who knowingly publishes classified information concerning a government’s COMINT activity. The Act does not provide exculpation for those who find the activity in question spooky, legally dubious, or even illegal, nor does it grant lenience to those who spin it into “an interesting yarn.” The administration’s failure to prosecute the Times over the less sensitive NSA wiretapping case emboldened the paper and its reporters to break the much more damaging banking story, for which they received Congressional censure but nothing in the way of prosecution. The cost of this precedent will become clearer as journalism students note the professional accolades heaped on Lichtblau and Risen and go on to emulate them after graduation.

While their precedent poses long-term danger, the leaks immediately degrade the effectiveness of U.S. intelligence and law enforcement. Years after the breach, we can observe terrorists’ adaptations to see what they have learned from reading the Times. Faisal Shazad, the Times Square pseudo-bomber, was trained by al Qaeda to use cash financing, written communication via courier, and disposable cell phones, evasive tactics all motivated by publicized U.S. intelligence capabilities. Had Shazad merely built a better bomb, some would conclude that the deaths of hundreds of New Yorkers could be directly attributed to the Times.

Before Necessary Secrets, leak decisions have been understood as a trade-off between informing and protecting the public (including by protecting the protectors). But Schoenfeld argues forcefully that leaking does not ultimately advance the democratization of information. Now that any cleared individual who reads the newspapers realizes he can leak with impunity, the executive branch is forced to restrict sensitive decisions to an ever-smaller circle of individuals (and, I would add, an ever-shorter decision timeline), denying the executive much of the expertise and experience at his disposal.

Schoenfeld’s case studies deal with leaks in newspapers and books, but the internet also contains an emergent threat to necessary secrecy. The blog revolution has circumvented whatever institutional safeguards remain in the traditional press, which in turn allows the press to freely print secrets while reasonably pointing out that they would eventually appear online anyway. In May, former FBI contract linguist Shamai Leibowitz received a twenty-month prison term for passing five classified documents concerning American communications intelligence activities to an unnamed blogger. In June, Tenth Mountain Division private Bradley Manning admitted to sending 260,000 classified cables, including coalition casualty data, from Iraq to the Sweden-based WikiLeaks. Although the Army is prosecuting Manning, the Obama administration has taken no action (diplomatic or otherwise) to shut down the website, undermining the prosecution’s claims about the leak’s harmful nature. Although newspapers still publish the most sensational leaks, the steady drizzle from the blogosphere may ultimately prove even more damaging.

Prosecuting the source but not the publisher in the Pentagon Papers case set a practical (though not legal) precedent which even today continues to hinder the government’s response to leaks. There are historically two perpetrators in a leak: the insider and the publisher. The easy consensus seems to be that the insider should be jailed or at least fired for violating the terms of his employment. Those who glorify the insiders as “whistleblowers” completely misunderstand the procedures for blowing whistles. But these sources tend to speak on condition of anonymity, so the government needs to be able to credibly threaten to punish the reporter or editor, if only to persuade him to divulge the identity of the source. The movement towards a federal “shield law” for journalists is deeply troubling because it would remove this credible threat and elevate the confidentiality between newspaper and source to a sacerdotal status. For now, the Branzburg decision and the absence of a federal shield law remind us that reporters are fair game, and if the government doesn’t put up a serious fight soon, it will have less credibility going after the more egregious leaks that are bound to follow.

Schoenfeld argues that newspapers can and should be held accountable under the Espionage and COMINT Acts, but he does not endorse the independent prosecutor. The Times did endorse the independent prosecutor, as long as he was investigating the Bush administration. When the prosecutor, Patrick Fitzgerald, turned on reporter Judith Miller, the Times’ position pivoted too. Schoenfeld criticizes the special prosecutor statute as one which “throws by the wayside the formal and informal checks and balances of our judicial system.” Yet current means of prosecuting leakers have proven woefully inadequate. As illustrated by employees from Deep Throat to the leakers of the interrogation memos and the NSA warrantless wiretap program, referring leak investigations to the Department of Justice is asking the fox to investigate a break-in at the hen house. Without a powerful, independent force willing to lock up rogue reporters, publishers, and bureaucrats, the public’s only recourse is to hope for a little self-control in the Times. Unfortunately, it seems that if such self-control is ever to be regained, it will be only after the cost of Keller’s negligence is unmistakably inked across page one. Written before WikiLeaks and the latest round of Islamic terror attempts, Necessary Secrets anticipates these developments and worse. It provides by far the most comprehensive history and current standing of the uneasy legal relationship between the writing and fighting estates.

The opinions expressed here are solely the author’s own.