Power and Constraint — how the press compromised U.S. anti-terrorism efforts

The U.S. response to 9/11 is mostly a success story, but that story has not been without its discouraging aspects. For example, I wrote here about the hijacking of key aspects of American anti-terrorism policy by military lawyers. Another example, from my perspective, is media disclosure of U.S. government anti-terrorism initiatives, the efficacy of which depended on secrecy.

In his new book Power and Constraint, Jack Goldsmith devotes considerable attention to this phenomenon. Here, from my review of Power and Constraint for the Federalist Society’s Journal, is my take:

“Secrecy,” Goldsmith stipulates, “is vital in wartime to avoid tipping off the enemy about government plans and operations and to promote candid deliberation inside the government about these plans and operations.” After 9/11, however, journalists saw their function as “piercing the government’s secrecy system.”

They succeeded. “Very soon after top-secret counterterrorism programs became operational, they were discussed in some detail on the front page of the Washington Post and elsewhere,” Goldsmith reports. The programs publicly discussed included monitoring of international financial transfers that support terrorism, data-mining techniques, interrogation techniques, CIA renditions, and secret prisons.

Consequently, General Michael Hayden declared that there are only a “very narrow number of specific operational acts” he was involved with that are as secret now as the day they were conceived. After 9/11, Hayden served in one key intelligence leadership position after another. Thus, he knew most if not all of America’s important intelligence secrets. So, apparently, did journalists and, in many instances, their readers, including the terrorists we were fighting.

Should we be sanguine about this state of affairs? According to Goldsmith, President Obama is not. And Obama’s Under Secretary of Defense for Intelligence has testified to Congress that leaks of classified information “place[] our forces, our military operations, and our foreign relations at risk.”

Goldsmith, though, is relatively sanguine. He recognizes the harms that have resulted from the disclosure of secrets, but considers them a fair price to pay because disclosure increases the ability of the public and its representatives to evaluate the soundness of the executive’s wartime efforts.

But wartime efforts become less sound when the enemy receives notice of their nature. And the public can evaluate the efficacy of the executive’s efforts by looking at results.

Satisfactory results are sometimes achieved through debatable methods or in spite of the methods used. But our elected representatives have broad powers with which to ascertain what methods the executive is employing and with what efficacy. Thus, the executive can be held accountable without its secrets being splashed onto the front page of the newspaper.

Goldsmith notes that Congress has often been reluctant to become significantly involved. Presumably, this reluctance reflects public indifference to anything other than results. Wartime efforts should not be compromised to provide the public and its representatives with information they don’t particularly care to know.

Goldsmith contends that “the United States has basically decided” that the benefits derived from publication of government secrets outweigh the harm to national security that sometimes results. He points out that Congress hasn’t given the President much power to prosecute leakers and Presidents have been reluctant to use the power they possess.

It may be a stretch to characterize this inaction, probably caused by unwillingness to antagonize the press, as a decision based on the weighing of costs and benefit. In any event, the “decision” should be re-visited, and might very well be in the next serious crisis.


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