Do you want to know a secret?

Putting the Wikileaks episode to one side, by far the most damaging leaks of classified information in the past 10 years must be the disclosures that blew the NSA terrorist eavesdropping program (James Risen and Eric Lichtblau, New York Times, December 16, 2005) and the Treasury Department’s SWIFT terrorist finance monitoring program (James Risen and Eric Lichtblau, June 23, 2006).

I wrote about the first of these leaks in the online Weekly Standard column “Exposure,” pointing out that the publication of the Times story violated the Espionage Act. Prior to the publication of the article based on the second set of leaks, President Bush met with Times managing editor Bill Keller and personally begged him not to blow the SWIFT program. Keller provided his defense of the Times’s decision to publish in a letter to readers. Gabriel Schoenfeld explored the two cases in depth in Necessary Secrets: National Security, the Media, and the Rule of Law.

Perhaps understandably, the Bush administration never got serious about prosecuting these leaks. The one notable national security prosecution that it chose to pursue — of former AIPAC executives Keith Weissman and Steven Rosen — seemed designed to embarrass those of us who believe in enforcement of the espionage laws. The Obama administration put the case against Weissman and Rosen out of its misery in May 2009.

The Obama administration has nevertheless cranked up the apparatus supporting national security prosecutions in a way that the Bush administration never did. Indeed, for all the world, it looks like the Obama administration is making a desperate bid for additional recognition in Glenn Reynolds’s “They told me if I voted for John McCain” series.

Writing about one such prosecution last year, New York Times reporter Scott Shane noted that Obama had “already outdone every previous president in pursuing leak prosecutions.” Addressing the case brought against former NSA officer Thomas Drake, Shane wrote that Drake’s indictment “was the latest evidence that the Obama administration is proving more aggressive than the Bush administration in seeking to punish unauthorized leaks.” Shane’s long June 2010 story on the prosecution of Drake also touches on its possible relationship to the Times NSA terrorist eavesdropping story. (Shane first wrote about Drake’s indictment in this article.)

Shane returned to the subject yesterday in a page-one story on the prosecution of Stephen Kim for leaking a CIA analysis of the likely North Korean response to a United Nations resolution condemning its nuclear and missile tests. Kim leaked the analysis to James Rosen of Fox News. According to Rosen, the CIA analysis was based on sources inside North Korea. But for the attribution of the analysis to sources inside North Korea, the CIA analysis sounds like something you could write from clipping articles in the Times itself.

Unlike Shane’s long story about the Drake prosecution last year, Shane’s story about the indictment of Kim omits any mention of the vested interest of the New York Times in discouraging leak prosecutions. Shane calls on Gabriel Schoenfeld to pooh-pooh the venture: “You’re accusing someone who’s doing something irresponsible and wrong. But he might be a well-intentioned civil servant and he’s not trying to betray his country.”
Unfortunately, Shane does not go so far as to quote Schoenfeld’s considered judgment on the Times rendered in Necessary Secrets:

Along with the public’s “right to know,” constantly invoked by the press, there is also something rarely spoken about let alone defended: namely the public’s right not to know. Yet when it comes to certain sensitive subjects in the realm of security, the American people have voluntarily chosen to keep themselves uninformed about what their elected government is doing in their name. The reason why they choose to keep themselves uninformed is not an enigma. It is obvious. What they know about such matters our adversaries will know as well.

Schoenfeld adds: “A late convert to this was none other than the Times’s ombudsman himself. Having originally applauded his newspaper for publishing the SWIFT story, four months of digesting letters from readers led to a change of mind.” On second thought, Times ombudsman Byron Calame wrote, “I don’t think the article should have been published.”
Schoenfeld comments: “Too late, the damage was done.”


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