Gabriel Schoenfeld’s Necessary Secrets: National Security, the Media and the Rule of Law is published today. 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. Schoenfeld writes:
I am a New Yorker who was in Manhattan on the morning of September 11, 2001. Like millions of others here, I saw the destruction wrought by al Qaeda firsthand, saw the dust-covered survivors trudging northward, breathed the smoke from the smoldering rubble and felt it sting my eyes. That afternoon, after the trek home to my family in Brooklyn, seven miles from ground zero, I found a layer of ash on my car. What was in the ash? Along with pulverized concrete, glass, and steel, did it contain the remains of firefighters and office workers turned to dust? That was just one of the many questions coursing through my brain on the evening of the day that war came to my city. I was again in Manhattan on March 11, 2004, the day that Islamic terrorists bombed the Madrid transit system, killing 191 people and maiming more than 1,700. And I was in Manhattan once again on July 7, 2005, when suicide bombers struck the London transit system, killing 52 and wounding hundreds. Like millions of others, I ride the New York City subways daily. So do two of my three daughters.
It was in light of this history and these circumstances, a personal history and personal circumstances in no way unique to me, that I was incensed by the publication in the New York Times of a series of stories in 2005 and 2006 compromising some of the secret counterterrorism programs that the U.S. government had initiated to avert a repetition of such terrible catastrophes. But along with outrage, I was intensely curious about the legal regime that permitted, or appeared to permit, this kind of tell-all-and-damn-the-consequences journalism. This book is an outgrowth of my impassioned curiosity.
The disclosure of wartime secrets and the role of the press in protecting or disclosing them is a subject both important and complex, pitting our most cherished values against one another and bringing key institutions of democratic governance into collision. In exploring this terrain I have been drawn into the broader task of constructing a counternarrative to the standard history of free expression in America, which, as I have discovered, has ossified into orthodoxy. Its adherents have fallen into the trap described by Herbert Butterfield in The Whig Interpretation of History, in which the historian stands on the summit of the present and peers down upon the past to affirm and reaffirm his own political convictions, a mode of mountaineering that obscures a proper view of history’s slopes.
Although my attempt at historical correction leaves me sharply critical of the recent conduct of the New York Times and the First Amendment absolutism that underpins it, my book is not intended as a prosecutor’s brief. The problem of governmental secrecy has become a burning issue in American political life and cries out for historically informed analysis. It is my hope that a fuller understanding of our past can help us skirt some self-imposed perils and return us to a proper balance between the exigencies of national defense and the blessings of our cherished liberty.
Here let me reiterate what I wrote last week about Schoenfeld’s book. 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.
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.” Among other things, Schoenfeld’s book thus fills in some large holes in the standard history.