An unnecessary secret

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Gabriel Schoenfeld’s Necessary Secrets: National Security, the Media and the Rule of Law will be published on May 24. I read Schoenfeld’s book in galley proof. It is an important and (to borrow an adjective) necessary book. At our invitation, Schoenfeld has prepared a post for Power Line readers adapted from the book’s preface. Look for it here on May 24.
Schoenfeld’s book does something that, to my knowledge, hasn’t been done before. It provides an unexpurgated account of the media’s disclosure of highly classified national security information, some of which — such as the James Risen/Eric Lichtblau New York Times story blowing the NSA al-Qaeda eavesdropping program, and the Risen/Lichtblau story blowing the SWIFT terrorist finance tracking program — has violated the espionage laws of the United States and done great damage to American national security. Unfortunately, such acts of espionage will land you a Pulitzer Prize rather than time in the clink.
Alarmed into reflection and research by Risen and Lichtblau, Schoenfeld investigates the conflict between free expression and national security in American history. The standard legal history presents an unfolding story of unfettered freedom; Schoenfeld finds the standard legal history wanting. Schoenfeld is a model of tact in formulating the problem with the standard legal history: “Major histories of First Amendment law prefer overwhelmingly to argue by omission, with the result that they conceal as much as they reveal.”
Schoenfeld cites Geoffrey Stone’s Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism as a prime purveyor of the standard legal history that he now seeks to revise. Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago Law School. Like Risen and Lichtblau, Stone has received numerous national awards for his work, including the Robert F. Kennedy Book Award for 2005, the Los Angeles Times Book Prize for 2004 as the best book in the field of history, the American Political Science Association’s Kammerer Award for 2005 for the best book in Political Science, the Hefner Award for the best book on the First Amendment [Ed.: !]., and Harvard University’s 2005 Goldsmith Award for the best book in the field of Public Affairs.
Schoenfeld notes that Stone’s book has been hailed as “a masterpiece of constitutional history” by no less a figure than Elena Kagan. “Yet this ‘comprehensive’ tome,” Schoenfeld writes, “fails even to mention episodes that cut against its thesis, such as the so-called Black Chamber affair in the 1930s, the nearly catastrophic Chicago Tribune leaks during World War II, and an array of cases from Marchetti to Snepp in which the federal government has gone to court, successfully, to rein in the printing presses to protect national security secrecy in times of both war and peace.”
The New Republic has now posted a review of Schoenfeld’s book by Professor Eric Posner. Posner also teaches at the University of Chicago Law School, and he mentions Stone’s book in his review. I’m sure Posner’s review will generate collegial feeling among the law school faculty, but it won’t do much for readers interested in the subject of Schoenfeld’s book.
Professor Posner somehow omits to mention the thesis of Schoenfeld’s book in his review. Schoenfeld’s thesis is that journalists are not above the law, and that the First Amendment does not offer protection for publishing certain kinds of government secrets. Professor Posner treats the thesis of Schoenfeld’s book as a secret, though it is one that by my reckoning falls under the category of unnecessary secrets.
Professor Posner also minimizes, or assumes away, the damage of the cases discussed by Schoenfeld. He doesn’t discuss the potential harm caused by the Risen/Lichtblau NSA and SWIFT stories. He presents the history of leaks as if he himself unearthed it all.
Professor Posner argues against prosecution of journalists, but he fails to note that Schoenfeld himself makes the case against prosecution in all but the rarest cases. Consistent with Posner, Schoenfeld argues against prosecution under the circumstances of particular cases on grounds of prudence and political tradition.
Professor Posner’s review is bad in the sense that it obscures the book’s argument while pretending to present it. At one point Professor Posner acknowledges the intellectual probity of Schoenfeld’s book. Professor Posner’s review does not meet the standard of probity that Schoenfeld sets in the book.
Professor Posner is the coauthor of a good book on international law with Harvard Professor Jack Goldsmith. Professor Goldsmith is the author, most recently, of The Terror Presidency. On the jacket of Schoenfeld’s book, Professor Goldsmith calls Necessary Secrets “a truly great book — the best account ever of the relationship between the press and the government concerning the protection and disclosure of national-security secrets…”
There seems to be a disagreement between Professors Posner and Goldsmith regarding Schoefeld’s book. In this case Goldsmith has it exactly right.

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