Secrecy and criminality

Last night I wrote about the dramatic events that culminated in President Bush, under pressure from his Justice Department, revising existing administration policy on terrorist surveillance. Jack Goldsmith, who now teaches law at Harvard, was a key player (perhaps the key player) in this drama.

Professor Goldsmith has written a review for the New Republic of a book by Eric Lichtblau of the New York Times called Bush’s Law: The Remaking of American Justice Lichtblau covers the Justice Department for the Times. Along with James Risen, he broke the news about the terrorist surveillance program in question. Later, the same two revealed classified details about SWIFT, a U.S.-instigated international bank surveillance program. In between, they came up with what Goldsmith describes as “scoop after scoop purporting to disclose many classified details about the government’s surveillance capabilities.”

The thesis of Goldsmith’s review is that the history of the Bush administration’s actions, and the New York Times coverage, “is not a pretty story — not for the Bush administration and not for the Times.” As for the Times, Goldsmith states that its disclosure of the terrorist surveillance program “was probably a crime.” Moreover, while the Times claims that it ignored administration pleas not to disclose the program in part because of criticism lodged by some within the administration, the government had taken steps in response to that criticism to “fix” the alleged legal problems before the Times got the story.

Goldsmith believes, correctly I’m sure, that the government will not prosecute Lichtblau and Risen for their crime. But for him this poses all the more acutely “the ancient question of who is guarding the guardians.” Goldsmith believes that Lichtblau provides no satisfactory answer. He concludes, moreover, that the Times “incorrectly evaluated both the legality of the SWIFT program and the impact on national security of its disclosure.” He writes: “If the Times looked into the matter with the same vigor with which it pursued the surveillance stories, it would discover that [its] stories have significantly harmed our national security.” Indeed, the Times’ stories “made it easier for terrorists to plan and to execute attacks, and in that sense endangered the physical safety of Americans.”

Thanks, guys.

As I noted, Goldsmith is also highly critical of the Bush administration. In fact, he blames much of the “leaking” upon which Lichtblau and Risen relied on the administration’s “extravagant” use of the “secrecy stamp.” According to Goldsmith, “the administration even short-circuited normal procedures inside the executive branch,” keeping “the number two person in the Justice Department out of the loop” and declining to “share the legal opinions related to the [surveillance] program with the National Security Agency that was running the program.”

Goldsmith concludes:

The secrecy of the Bush administration was genuinely excessive, and so it was self-defeating. One lesson of the last seven years is that the way for government to keep important secrets is not to draw the normal circle of secrecy tighter. Instead the government should be as open as possible, and when secrecy is truly necessary it must organize and conduct itself in a way that is beyond reproach, even in a time of danger. In the end, not Congress, nor the courts, nor the press can force the government to follow these precepts. Only the president can do that.

It may be that, in the context where Goldsmith operated, leaks were a reaction to “the perception of illegitimacy” that “excessive secrecy” produced. And the leakers themselves may not have been inherently hostile to the administration. In different contexts, the CIA for instance, leaks may have had more to do with out-and-out hostility to the administration and its substantive policies, or to crass careerist motives. In either context, the leaks cannot be condoned. So far as appears, Goldsmith and his colleagues were able to force a revision of the administration’s surveillance program, notwithstanding strong resistance by the vice president, without resorting to leaks.

And Risen and Lichtblau really should be prosecuted.

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