The government claims a right to hide certain facts. The public—and the press—claims a right to know them.
By John O. McGinnis
There is an obvious tension between a democratic public’s need for information—its right to know—and the government’s need, at times, for operational secrecy. A broad sense of what officials are doing is at the heart of any democracy, and not only in principle: Collective wisdom in the long run tends to thwart government’s bad schemes and improve its better ones. But secrecy is essential to statecraft. By keeping our enemies ignorant of our intentions, and hiding our knowledge of their own, we help to keep the country safe. Any administration—President Barack Obama’s is no exception—will find itself engaged in a perpetual struggle with reporters over the fate of its classified material.
Gabriel Schoenfeld brilliantly illuminates this fundamental dilemma in “Necessary Secrets.” His inquiry, he confesses, was prompted by his visceral anger at the New York Times for revealing, in 2005 and 2006, two highly classified national-security programs: One tried to spy on the communications of terrorists by monitoring phone calls passing through U.S.; the other tried to follow the terrorist money trail by accessing international bank records.
The decisions of the Times’s editors, Mr. Schoenfeld notes, were made less than five years after 9/11, when he had himself wiped the dust from the Twin Towers off his car. In Commentary magazine, Mr. Schoenfeld argued that the government should prosecute the Times for its revelations. In “Necessary Secrets” he does not back down from this position, but he broadens his range of reference. “Necessary Secrets” is less a polemic than a dispassionate history and analysis of leaks—the publication of facts that the American government claims a right to hide.
It is a complicated history, to say the least. Mr. Schoenfeld shows that government officials themselves have leaked secrets from the earliest days of the republic. After George Washington dismissed Edmund Randolph, his secretary of state, Randolph relied on secret diplomatic correspondence to write a pamphlet vindicating his conduct. Then, as now, one of the great obstacles to protecting information was the tendency of government officials to disclose secrets in order to advance their own interests.
It was only in the 20th century, Mr. Schoenfeld says, that newspapers became a sluice-gate for secrets. During World War I the New York Times revealed that the government was constructing steel nets under New York Harbor to catch German submarines, something the Germans would naturally be pleased to learn. Three decades later, and even more rashly, the Chicago Tribune reported that the Navy had known ahead of the Battle of Midway the precise strength of Japanese forces in the area, clearly implying that the U.S. had covert access to Japanese plans. Yet the Roosevelt administration (understandably) declined to prosecute the Tribune, because a trial might have revealed even more secrets and drawn more attention to the breach.
During World War II and much of the Cold War, Mr. Schoenfeld notes, most of the press acted responsibly. Only relatively recently, he says, has a patriotic press morphed into an adversarial one. First, Watergate made the media distrust government claims of confidentiality, because the Nixon administration so often used secrecy to cloak illegality. Second, media competition grew as outlets multiplied, making each news service ever more eager to break stories. The Times may have gone ahead with its long-held article about the government’s surveillance program in part because its own reporter was about to reveal his scoop in a book.
The costs of such revelations are high, as Mr. Schoenfeld demonstrates. In the case of the Times stories, it is easy to imagine members of al Qaeda rerouting their finances or communications to avoid U.S. monitoring. But the effects of leaking go beyond the damage to individual programs. The threat of leaks reduces the willingness of foreign intelligence services to collaborate and, within our own government, encourages the president to restrict access to important plans, isolating him from the critiques he needs. The disclosure of secret programs will of course subject them to public scrutiny; but the possibility of a leak means less internal “scrubbing” for the programs that remain under wraps.
In “Necessary Secrets,” Mr. Schoenfeld does not say exactly how we should balance free speech and the need to shroud certain government actions. He instead tries to shame the press back into a sense of responsibility. It is an admirable effort but probably a futile one, given intensifying press distrust and media competition.
Even so, Mr. Schoenfeld’s history points to a couple of useful strategies. After egregious disclosures, Congress often defines a narrow category of information, like the names of intelligence agents, and singles out the category for punishment. Prosecuting the news media under such statutes is less damaging to free speech than indictments under general espionage statutes, which may broadly block information in the public interest. Congress should protect more such categories, like covert programs aimed at preventing attacks by weapons of mass destruction.
As Mr. Schoenfeld shows, government officials who break their oath of confidentiality can themselves be punished. Mr. Obama’s Justice Department has in fact brought prosecutions against officials for revealing classified information during the Bush administration. If made with sensible discretion, such indictments can deter the leaking of truly dangerous material without the chilling effect on the media that flows from making reporters felons.
As it happens, the Justice Department has recently subpoenaed one of the Times reporters whose story prompted Mr. Schoenfeld’s book. The government’s investigation, this time, has to do with yet another story—about a covert action to disrupt Iran’s nuclear program. To the surprise of national-security hawks and the chagrin of the Fourth Estate, the Obama administration may turn out to be better than its predecessor at acting to preserve secrets.
Mr. McGinnis teaches at the Northwestern University Law School.