Secrecy in Shreds
By Bill Keller
Last year, Gabriel Schoenfeld, a veteran of the conservative magazine Commentary, published a book that explained how The New York Times could be prosecuted under the Espionage Act. The book said a lot of other things too, but you'll understand why that particular proposition stuck in my mind. At one point Schoenfeld conjured an image of authorities "frog-marching a shackled Bill Keller into court."
Schoenfeld's book, "Necessary Secrets," is a valuable history-with-attitude of the long war between the American government and the press over the protection and disclosure of secrets. Two stories this newspaper broke were particularly troublesome to him: one, in 2005, about the National Security Agency's antiterror-agents' eavesdropping on Americans without warrants; the other, published in 2006, about the Treasury Department's screening international banking records. Recently I invited Schoenfeld in for a conversation about secrecy, a subject blown back to life by the phenomenon of WikiLeaks.
The impact of WikiLeaks on the press is being masticated all over the place, but there is another side of the subject that makes editors a little uncomfortable, and Schoenfeld has put his finger on that sore spot.
Let us stipulate that there are things that should not be publicly disclosed; we may disagree about what they are, but they exist. Let us stipulate, too, that some fraction of the people cleared to handle secrets will not be trustworthy.
The digital age has changed the dynamics of disobedience in at least one respect. It used to be that someone who wanted to cheat on his vow of secrecy had to work at it. Daniel Ellsberg tried for a year to make the Pentagon Papers public. There was a lot of time to have second thoughts or to get caught. It is now at least theoretically possible for a whistle-blower or a traitor to act almost immediately and anonymously. Click on a Web site, upload a file, go home and wait.
For those charged with keeping secrets, WikiLeaks is a wake-up call. So what should the government do to make the leaker's task - and my job as a nosy journalist - harder?
The surprising good news is that there are some fixes that almost everyone who thinks hard about this subject agrees on. They do not include those Draconian proposals floating on Capitol Hill to expand the government's power to lock up more leakers and, in some versions, more of the journalists who traffic in leaks. Prosecuting leakers is something the Obama administration is already doing far more vigorously than its predecessors (five criminal cases, compared with three in the previous 40 years), and even Schoenfeld worries about overreaching.
"I'm against reform," he told me, referring to the new leak-punishing proposals. "The system has been working reasonably well, with a couple of egregious exceptions - most of them involving The New York Times."
The broadest area of consensus is that classification should be less promiscuous and declassification should be easier - for some material, the "secret" designation should expire automatically. To its credit, the Obama administration has with little fanfare initiated a wholesale review of government secret-keeping. Steven Aftergood, an open-government campaigner who has monitored the review, regards the potential as exciting but the progress so far as "embarrassingly modest."
A second remedy is to better restrict access to the secrets that matter. Since 9/11, the conventional wisdom has moved the opposite way, favoring broader intelligence-sharing as essential to the early detection of terrorist plots. But it is one thing to ensure that law-enforcement agencies share reports of flight-school trainees who have no interest in learning to land their planes. It is another to give an Army private (and 500,000 others) access to a network that contains all the midlevel secrets of the Pentagon and the State Department. According to recent Congressional testimony, the government has been installing software that prevents the downloading of classified information to portable devices and sends an instant alarm when data is being transferred out of a secure system.
As for punishing leakers, my sample of experts agrees, the current law seems to be more than adequate, and the current practice - at least for the rank and file - is anything but permissive. (Indeed, many find the treatment of Pvt. Bradley Manning, who is accused of passing material on to WikiLeaks, offensive. That includes the former State Department spokesman who was forced out for saying so but does not include the president.) Still, few question that the government is entitled to fire or prosecute employees who violate its trust.
"If people sign nondisclosure agreements, they should not disclose," Aftergood says. "And in extraordinary cases where they feel compelled as a matter of conscience, then ideally they should stand up and say, 'I have been a witness to an unethical act,' and accept the consequences."
Those consequences would most likely be taken more seriously if the people howling against leakers set a better example. Jack Goldsmith, who worked in the George W. Bush Justice Department, argues that nothing undermines respect for secrecy like watching government officials disgorge their notes to Bob Woodward and other inside-story writers.
"People in government won't take classification decisions seriously when top officials who insist they are important don't respect them half the time," Goldsmith says.
Which leaves the tricky issue of us: those whose business includes digging out secrets and publishing them. Schoenfeld, my erstwhile nemesis, says he was never comfortable with the idea that the editors of The Times be imprisoned.
"Along with the single benefit to prosecuting a major newspaper, deterrence, there are huge costs," he said. "We all depend on newspapers and television for information about how we are being governed. Leaks are part of that daily flow, and we depend upon leaks. I as a citizen depend upon leaks."
His point, he says, is simply that freedom of the press can't be absolute.
In 1942, the ultra-isolationist publisher of The Chicago Tribune, Col. Robert McCormick, printed on his front page the fact that the Allies had broken Japan's naval code - a wartime breach that could have cost many thousands of lives. The Japanese overlooked it, and McCormick was never charged. (The Navy decided that a prosecution would draw the enemy's attention.) But it is a tale Schoenfeld uses to good advantage as a case study: Is the press ever culpable?
Schoenfeld thinks McCormick could have been successfully prosecuted under the Espionage Act. So, as matter of fact, does Floyd Abrams, the dean of First Amendment lawyers. And personally I would not testify in the publisher's defense. While the First Amendment is a wonder of our democracy, it would be arrogant to insist it protects everything done in the name of journalism.
For The Times's international-banking article, Schoenfeld tells me he would have favored a conviction - to clearly establish the government's right to use the Espionage Act - and a symbolic fine. To give leakers pause, he says, the government should assert its power but not overdo it.
Well, phew! But Schoenfeld has more faith in the government's restraint than I do. Sometimes a little clarity is a dangerous thing.
Bill Keller is the executive editor of The New York Times.