Journalism or espionage?

Back in the dark days of the Bush administration I wrote about the New York Times’s damaging violations of the Espionage Act on Power Line and in the Weekly Standard column “Exposure.” I was appalled by the Times’s revelation of secret eavesdropping and monitoring techniques adopted by the administration to detect and undermine al Qaeda.

I wasn’t alone in my concerns. Writing from the front lines of the battle against al Qaeda in Iraq, then Lt. Tom Cotton forwarded us a copy of the powerful letter he sent to the editor of the New York Times. The Times didn’t see fit to publish it, but we did. I think it’s fair to say that Tom seconded my concerns.

Gabriel Schoenfeld subsequently took a deep look at the issues in the March 2006 Commentary essay “Has the New York Times violated the Espionage Act?” The Commentary essay elicited an outpouring of correspondence that Commentary has made accessible online here.

Schoenfeld followed up his Commentary essay with the book Unncessary Secrets: National Security, the Media and the Rule of Law. In my view, in his Commentary essay and in his book, Schoenfeld set the gold standard for analysis of the issues.

I deeply wanted the Bush administration to throw the book at the Times reporters and editors and the Times’s faithless sources. Inside the Bush administration, suffice it to say that cooler heads prevailed. One still has to wonder, however, whether the Times is a law unto itself, and whether the unlawful disclosure of our deepest national security secrets is A-OK so long as it is filtered through elite organs of liberal opinion.

It’s been interesting, to say the least, to watch the issues play out in the Obama administration. The Obama administration has written a new chapter in government-press relations, something along the lines of the course of action I urged on the Bush administration. In doing so, however, it seems occasionally to have had in mind concerns other than the rule of law. Where is Schoenfeld when we need him?

In the National Affairs essay “Journalism or Espionage?” Schoenfeld now returns to the subject. He has sent out an email to friends introducing the essay:

With its crackdown on leaks and leakers, the Obama administration, we are being told by voices on both the Left and the Right, is engaging in a “war on the press.” Over at Commentary, my former magazine, they have gone so far as to speak of Obama’s “jihad against the press,” and suggested that some of what our president is doing “renders the First Amendment protections of the press null and void” and is comparable to what Vladimir Putin has done to the press in Russia.

Pardon me if I find some of this criticism just a wee bit overheated.

There are certainly serious problems with what the Obama administration has been doing in our ongoing secrecy wars—but those problems are quite different from what is commonly supposed.

In the fall issue of National Affairs I take a look at them in an essay entitled Journalism or Espionage?

Here are the first few paragraphs of Gabe’s essay:

No one can doubt that keeping state secrets is essential to national security. Whether the threats we face come from Islamic radicals intent on wreaking mayhem and murder or hostile regimes like North Korea and Iran intent on acquiring nuclear weapons, America and its allies depend on secrecy to observe our adversaries and obstruct their plans. Yet national-security secrets are now leaking from our government at a rate without precedent in our history. Indeed, when it comes to America’s protection of government secrets, the old order — in which leaks were seldom terribly damaging and were largely tolerated by the federal government — appears to be coming to an end. A new order is taking its place in which, on one side, aggressive journalists are joining with self-appointed “whistleblowers” to disseminate some of our government’s most sensitive secrets, and, on the other side, the government is forcefully cracking down.

The old order began to crumble under George W. Bush. He earned a reputation for running what his critics frequently called the most secretive administration in American history. And those critics were on to something: Responding to terrorist threats after September 11th entailed launching a host of secret initiatives. But the critics may not have adequately appreciated that, as details of the classified counterterrorism programs began to appear in the press, Bush and his subordinates responded with little more than words.

In 2005, President Bush personally warned the New York Times against publishing a story about the monitoring of terrorist communications by the National Security Agency, saying the paper would have blood on its hands were another terrorist attack to occur. After the story appeared, his attorney general Alberto Gonzales vaguely indicated that the newspaper might have violated the law and that prosecution was being explored, but nothing came of the threat. In short order, the Times struck again with a major leak about another secret counterterrorism program. Once again there were no consequences other than bluster from the administration. Despite constant accusations that Bush was waging “a war on the press,” his Justice Department convicted only one leaker under the Espionage Act, and in a case that had nothing to do with any of the major breaches of classified information. The old order may have started to disintegrate under Bush’s watch, but a new one did not rise in its place.

That new order — both in terms of the flow of secrets into the public domain and of the government’s response to that flow — has emerged only during the Obama presidency. Barack Obama took office pledging to run the most transparent administration in history. Given the massive increase in the number of leaks during his presidency, he has perhaps achieved that goal, but hardly as he intended. Between 2005 and 2009, a period that roughly coincided with Bush’s second term in office, 183 leaks from intelligence agencies were reported to the FBI; under Obama, 375 leaks came under investigation in just one eight-month period between November 2011 and June 2012. If the figures for these two periods are commensurable (which is unclear, because they were themselves generated in secret by two separate agencies), they represent an impressive upward shift. But commensurable or not, such numbers would still actually understate the scale of a phenomenon that, with the appearance of mega-leakers like Bradley Manning and Edward Snowden, has assumed hitherto unthinkable dimensions.

No less striking is the Obama administration’s ferocious response to the leaking. While, as noted, only a single leak case was prosecuted under the Espionage Act in the Bush years, under Obama we have already seen seven such prosecutions, more than double the total for all previous presidents combined, and more indictments are reported to be in the works. The intensity with which the administration is cracking down is evident not only in the tally of leakers prosecuted, but also in the remarkably aggressive methods the administration has employed to ferret them out, including the use of search warrants and subpoena powers to obtain the internal communications of news organizations and to compel journalists to disclose their confidential sources.

These developments add up to an unprecedented set of circumstances. On the one hand, national-security secrets are hemorrhaging, hampering our efforts to counter terrorism and nuclear proliferation and causing significant damage to our country’s international standing. On the other hand, the government has initiated a crackdown on leakers that is more vigorous than any we have seen in our history, leaving many observers outraged that the First Amendment guarantee of freedom of the press is being imperiled. The imperatives of national security have collided head on with the imperatives of openness, and the consequences pose grave challenges that most Americans have yet to grasp.

I urge interested readers to check out Gabe’s essay, which National Affairs has posted online here.

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