Exclusive: Necessary Secrets - Too Hot For The Press to Handle?
by RUTH KING
July 12, 2010
“Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.”
On June 23,2006 the same authors in the same newspaper wrote a column with a slightly less explosive title “Bank Data Is Sifted by U.S. in Secret to Block Terror
” where revealed secret government activities that monitored and traced Al Qaeda bank transactions by accessing the private banking records of “thousands of Americans and others.”
President Bush, Vice-President Cheney, legislators and commentators were swift in denouncing The New York Times. Senator Jim Bunning of Kentucky demanded a trial for treason.
On July 6th
, 2006 in a Weekly Standard column “Leaks and the Law- The case for Prosecuting the New York Times
” which was adapted from his previous testimony to the Senate Judiciary Committee, Gabriel Schoenfeld argued that the New York Times
was in violation of Section 798 of Title 18, the so-called Comint statute, a law passed in 1950 by Congress to prevent leaks that could inflict “ irreparable harm” to our security.
The law states:
“Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information . . . concerning the communication intelligence activities of the United States . . . shall be fined not more than $10,000 or imprisoned not more than ten years, or both.”
Mr. Schoenfeld continued:
“Given the uproar a prosecution of the Times would provoke, the attorney general's cautious approach is certainly understandable. But what might look like a prudent exercise of prosecutorial discretion will, in the face of the Times's increasingly reckless behavior, send a terrible message.”
“Can it really be the government's position that, in the middle of a war in which we have been attacked on our own soil, the power to classify or declassify vital secrets should be taken away from elected officials acting in accord with laws set by Congress and bestowed on a private institution accountable to no one?”
He skillfully traces secrecy in governing from the founding fathers to the present dilemma. Along the way we learn of public disclosures of classified information that seriously compromised security and strategy and the lives of American agents in the great battles of the last century including the Cold War.
Many journals, including The New York Times, have featured fine reviews of this very worthy book. It is informative, meticulously documented, elegantly written and perfect reading for our summer of political discontent. We at FSM are delighted that Gabriel Schoenfeld has graciously agreed to the interview which follows:
RK: There is a great deal of buzz lately about the intent of the Founding Fathers. Your book opens with a quote from our first president: “There are some secrets, on the keeping of which so depends, oftentimes, the salvation of an Army. Secrets which cannot, at least ought not to be, intrusted to paper; nay which none but the Commander in chief at the time, should be acquainted." In the chapter on the founders you then quote Benjamin Franklin’s appeal to “leave the liberty of the press untouched, to be exercised in its full extent, force and vigor.” Could you comment on their debate?
GS: The views of the Constitution’s framers on the problem of secrecy are of interest for a variety reasons, not least because so many journalists present them, and especially the First Amendment, as a permission slip to publisher whatever they choose, including classified information that can severely damage U.S. national security. But our Founding Fathers would have recoiled at such practices. In his Commentaries, Joseph Story, the preeminent 19th-century interpreter of the U.S. Constitution, bluntly stated that the idea that the First Amendment “was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private . . . is a supposition too wild to be indulged by any rational man.”
Among the framers, even the most ardent advocates of openness, like Patrick Henry, who called governmental secrecy an “abomination,” believed that information related to foreign affairs and defense was deserving of protection.“Such transactions as relate to military operations or affairs of great consequence,” he wrote, “the immediate promulgation of which might defeat the interests of the community, I would not wish to be published, till the end which required their secrecy should have been effected.”
RK: Whistleblowers are romanticized by popular culture…and they have often disclosed corruption at high levels of industry and government. Are there any examples where the press has acted properly and responsibly in disclosing secret documents and data?
GS: Not a day goes by in Washington without government officials sharing inside information with journalists and lobbyists in off-the-record briefings and in private discussions over lunch. Some of the material changing hands in this fashion winds up getting published. A study by the Senate Intelligence Committee counted 147 separate disclosures of classified information that made their way into the nation’s eight leading newspapers in a six-month period alone. As these startlingly high numbers indicate, leaks to the press are a well-established informal practice. The problem does not lie with leaking per se, but rather with the leaking of secrets that truly endanger the public.
Who gets to decide which secrets are dangerous and which are useful for the public to know? Both the press and the government justly claim rights in that zone. Ultimately, a balance has to be struck. In my book, I make the case that we’ve tipped too far in one direction, with potentially lethal information seeping out. But I am hardly arguing that the press should never publish government secrets. Given rampant mis- and over-classification in our system, that would be an outcome that would stifle public understanding of critical national-security questions.
RK: You argued that Risen and Lichtblau could be indicted and even land in prison. Can you comment on the pending case against Risen and his book about the CIA’s efforts to subvert the Iranian nuclear program? Is President Obama going farther than his predecessor?
GS: Actually, I’ve never argued that Risen, Lichtblau, or anyone else at the Times should be sent to prison. Although the statutes that I believe they violated include prison as a punishment, they also contain lesser penalties, including fines of up to $10,000. I think a guilty verdict from a jury, followed by the imposition of a fine—even if it were a mere $1—would send a powerful message that would vindicate the public’s rights. Sending journalists to prison for publication of a story would be a very sad day in the history of American freedom. Colonel McCormick, publisher of the Chicago Tribune, certainly deserved a spell in prison for publishing secrets about our successes breaching Japanese encrypted communications during World War II. But that case wasn’t prosecuted to avoid calling Japanese attention to the story.
The current proceedings involving James Risen are something else entirely. He is not being prosecuted. He has merely been summoned before a grand jury and asked to disclose the confidential sources who provided him with information about CIA efforts to disrupt the Iranian nuclear program. If he declines to testify, he can be held in contempt and sent to jail until he changes his mind. Like almost everyone else in our society (with a few well-established and limited exceptions, like clergymen and) psychotherapists) journalists are required to tell grand juries what they know about crimes. Congress has repeatedly declined to pass a special privilege for them.
Given that it is the Obama administration that is pursuing this case, it is safe to surmise that the damage done by the disclosures in Risen’s book was severe. In general, the Obama administration is taking a very tough line on leaking. In the President’ first 18 months in office, it has initiated an unprecedented number of prosecutions and already gained one guilty plea, which is only the third conviction for leaking in all of American history.
RK: There is a great deal of talk today about “home-made” nuclear bombs. In the chapter on Daniel Ellsberg, you mention the publication of an article with the beguiling title “The H-Bomb Secret: To Know How Is To Ask Why” which included a virtual “do it yourself” guide to building a bomb deadlier than Hiroshima. Could you tell us about it?
GS: In 1979, editors of the Progressive, a left-wing journal published in Madison, Wisconsin, settled on the provocative idea of publishing detailed instructions for building a hydrogen bomb. Their efforts provoked a fascinating court case in which many issues surrounding governmental secrecy were thrashed out. The article itself was finally published. It is unclear to this day whether it helped any foreign countries—India would be the most important case—in their bomb-building efforts. The Carter administration acted responsibly in trying to get the article suppressed, but it badly mismanaged the effort and we ended up with the worst of all worlds: the H-bomb design information was released and U.S. government experts in effect declared in court proceedings that the information was accurate!
RK: In a recent talk at the Manhattan Institute you alluded to your “Achilles Heel.” Could you elaborate?
GS: A weak point in my argument arises from the difficulty of demonstrating in any given instance that leaks of sensitive information actually cause damage. If one looks back in history, one can indeed find striking examples, as in the one of the breaches that preceded the Japanese attack on Pearl Harbor. But it took a decade for the damage from that leak—the so-called Black Chamber affair—to become apparent. The same problem arises today. Government officials decry damage from disclosures like those published in recent years by the Times, but they don’t specify exactly what the damage is. They no doubt have good reasons for their reticence, including a desire not to spill even more secrets, but the public is left guessing and must operate on trust. Since trust is sometimes abused, this is not an altogether satisfactory state of affairs. This is one of the many ambiguities that arise from the persistent tension between secrecy and openness in a democratic society.
RK: You have written a great deal about the Cold War, and in a Commentary article in 1999 you wrote: “The Iron Curtain came down in 1989. Two years later, the Soviet Union itself was no more, and neither was the cold war—a conflict that, for well over four decades, had divided the world into two hostile camps.” Then in the Wall Street Journal in august 2008 you wrote: “Not only has Russia retained a sizable nuclear arsenal, its military and political leaders regularly engage in aggressive bluster about expanded deployment and possible use, and sometimes they go beyond bluster. Six months ago, Russia began sending cruise missile-capable Bear H bombers on sallies along the coast of Alaska” And now we have Russia’s dalliance with Iran. Is the Cold War back?
GS: No, fortunately, the cold war is not back. Underlying the great confrontation between the USSR and the US was a deep and irreconcilable ideological rift. Today, however, Communism no is more. In the current difficulties in U.S-Russian relations we are dealing with the residuum. Russia has great power aspirations, but they are no longer in the service of any idea larger than Russian nationalism. Obviously, there are many points of friction between the two powers, but they do not derive from a burning desire on the part of the Kremlin to remake the world in its own image and according to the Marxist-Leninist vision. However fraught are relations between Washington and Moscow at the present moment, the death of Communism in Russia leaves a great deal more room for cooperation in areas, like counterterrorism, where we do have shared interests.
RK: A final question. You wrote a book: “The Return of Anti-Semitism” in 2004. During the Cold War foreign contributions to our academies and institutions were severely curtailed. Do you think Islamism and Arab prestige and petrodollars contribute to anti-Semitism in the West?
GS: There is little question that a great deal of anti-Semitic thinking is flowing into Europe and the United States from Islamic and Arab tributaries. But here in the U.S., the most alarming trend is indigenous. It is the singling out of American Jews as disloyal, or loyal to a foreign power, namely, the state of Israel. This line of thought, which has a long and unsavory history, was given a veneer of respectability by two academics, John Mearsheimer of the University of Chicago, and Stephen Walt of Harvard, in their book, The Israel Lobby. They have succeeded in mainstreaming a set of ideas long consigned to the gutter.
RK: Thank you for your excellent book and for taking the time to answer these questions.