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Necessary Secrets: A necessary review

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Gabriel Schoenfeld’s Necessary Secrets: National Security, the Media and the Rule of Law was published on May 24. I read Schoenfeld’s book in galley proof. It is an important and (to borrow an adjective) necessary book. We posted a word from Schoenfeld adapted from the book’s preface here.
Schoenfeld’s book does something that 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.”
How will the New York Times react to Schoenfeld’s history and his argument? Tomorrow’s New York Times Book Review provides a partial answer. Tomorrow’s Times carries Alan Dershowitz’s review of Schoenfeld’s book, and it is a review that is both fair and favorable. Dershowitz writes, for example:

In his aptly titled book, “Necessary Secrets,” Gabriel Schoenfeld, a senior fellow at the Hudson Institute, has presented a subtle and instructive brief challenging the right of the press to make unilateral decisions to “publish and let others perish,” as he puts it somewhat tendentiously or, as he quotes a newspaper editor, to publish “no matter the cost.”
No reasonable person can dispute the reality that there are “necessary secrets,” like the names of spies, the movement of troops, the contents of codes and ciphers, the location of satellites and the nature of secret weapons. Nor can any student of history doubt that there are unnecessary secrets, like old and useless information that remains classified by bureaucratic inertia. There is also information kept secret under the pretext of national security but really in order to protect the reputation or electability of government officials. And then there is the most interesting category of secrets — those that are genuinely designed to protect national security in the short run, but whose disclosure may well serve the national interest in the long run. (An example of this last category, at least with the benefit of hindsight, was the decision by The New York Times to withhold publication of the Kennedy administration’s imminent intention to invade the Bay of Pigs. Had it disclosed this information, the fiasco might have been called off, many lives saved and America’s reputation less tarnished.)

On the nub of Schoenfeld’s argument regarding the contemporary malefactions of the Times, Dershowitz writes:

Schoenfeld seems to acknowledge that The New York Times was right to publish the Pentagon Papers when it did, since these papers were largely an account of past mistakes leading up to a controversial war. But he makes a strong case that The Times was probably wrong in publishing “an article revealing the existence of a highly classified N.S.A. program designed to tap Al Qaeda phone calls and e-mails,” since disclosure of the program may well have caused Al Qaeda to change its methods of communication.
Schoenfeld is scrupulously honest in assessing the real costs and benefits of unilateral decisions by the press. It has become an article of faith among some civil liberty absolutists to deny that there are any costs associated with disclosing secrets like the National Security Agency’s high-tech program. This is part of a more general mantra of denial that covers other contentious issues as well: torture never produces actionable intelligence; capital punishment never deters; censorship never prevents harm; and a national identification system would never stop any terrorist. Each of these claims is highly questionable.

Some kind of congratulations are in order to the Times not only for reviewing the book, but also for assigning the book for review by a man of Dershowitz’s intellectual integrity.

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