Gabriel Schoenfeld's book Necessary Secrets is very readable and argumentatively seductive. I agree with Schoenfeld that we should have a meaningful debate about the tension between transparency and secrecy and the appropriate role of the press, especially during national security crises. I also agree with his observation that "war is one of the great engines of secrecy" (though I would also add, one of the great catalysts of government overreaching and infringement of civil liberties.) However, while Schoenfeld identifies a problem — the publication of true facts that are secret — he never plumbs the deeper and more salient question: What if the true and secret facts are illegal?
His central complaint is articulated in the second paragraph of the book: "I was incensed by the publication in the New York Times of a series of stories in 2005 and 2006 compromising some of the secret counter-terrorism programs that the U.S. government had initiated." In particular, Schoenfeld takes aim at the explosive Dec. 16, 2005, Times article that revealed that President George W. Bush's National Security Agency (NSA) had been spying on American citizens without warrants. Schoenfeld views this as a program the U.S. government had initiated to avert the repetition of another Sept. 11, 2001, but fails to mention that this program became one of the biggest scandals of the Bush administration, which many viewed as its single most flagrant act of lawbreaking.
His solution is that newspaper sources and reporters should face prosecution, be fined or even be sentenced to jail under the Espionage Act of 1917, and he outlines what a "hypothetical prosecution" of The New York Times for its revelation of electronic eavesdropping would look like.
Part of the problem with Schoenfeld's argument is that he talks about "national security," but he really means "governmental secrecy." What is done as part of the latter is often justified by the former, but does not necessarily further it, and sometimes is even at odds with it. To buy Schoenfeld's arguments about "the appropriate role of the press in wartime," you must subscribe to his operating premise that "[e]ver since September 11, the country has been at war," a notion in vogue some eight years ago, but one that has been roundly criticized by both liberal and conservative scholars for being an undeclared war of indefinite length. You must also believe that secrecy is just as "an essential prerequisite of self-governance" as openness, a proposition antithetical to the First Amendment, which, properly conceived, is predominantly about the public debate by which America governs itself. Secrecy is a cornerstone of autocratic rule and unaccountable political systems, not democracies
So, why are Schoenfeld's arguments so palatable? In masterful sophistry, Schoenfeld uses reverse psychology: The New York Times failed to "exercise responsibility" and "broke the public trust" by exposing electronic eavesdropping, not the Bush administration or NSA by engaging in it. Whistleblowers like Thomas Tamm violated their oath of secrecy by disclosing the scandal, not the government by violating its oath to uphold the Constitution. Although he characterizes the Watergate and the Iran-Contra affairs as "renegade governmental activity," secret surveillance (a close cousin to the illegality that underpinned Watergate) gets a pass because in some über-paternalistic way it is meant to protect us — and anyone who tries to bring forth information that would allow the public to exercise its sovereign prerogative of democratic debate be damned, or better yet, sent to prison. Isn't incarceration the ultimate way to stifle public debate by cutting off alternative information at the source?
In support of Schoenfeld's novel prosecutorial theory, he trots out many of the old arguments that have been debunked. For example, he states that the Foreign Intelligence Surveillance Act (FISA) was too "cumbersome." He also dredges up the tired excuse that "advances in telecommunications technology during the two and half decades since FISA was enacted render[ed] it unsuitable" and "[r]equiring a court order to intercept [e-mail] communications was a preposterous barrier to U.S. intelligence gathering." All of this is belied by the fact that FISA was massively expanded in October 2001, at the Bush administration's request, to (in the president's own words) "allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones." After assuring the country that he had all the surveillance tools he needed, Bush proceeded the same month with his secret spying regime.
Schoenfeld acknowledges that Con¬gress could "have adjusted FISA to better suit the NSA's proposed new role," but that for "doctrinal" reasons — which he studiously avoids referring to as the much denounced "unitary executive ¬theory" (that the president has constitutionally unlimited power in wartime) — "[t]he White House opted to circumvent the statute." Yet he assures us, contrary to this assertion and to history, that "[t]he judiciary and the executive branch were collaborating in the midst of a crisis to make a classified program succeed within the confines of law. So too was Congress kept in the loop."
Especially stunning in light of the Obama Justice Department's recent grand jury subpoena of one of the reporters who broke the warrantless wiretapping story and its indictment of a former senior NSA official, Thomas Drake, for allegedly disclosing NSA waste and abuse to the press in contravention of various secrecy agreements, Schoenfeld has just a single paragraph in his entire book on whistleblowers, whom he derisively labels as "leakers."
He starts off by stating unequivocally that "officials who uncover illegal conduct in the government are by no means bound by their signature to keep silent and permit violations of law to continue." If that were true, it would negate the entire premise of his book — that New York Times sources, reporters and, ideally, the paper itself, should be prosecuted. It would also demand the immediate dismissal of the indictment against Drake. That's because all three federal judges to consider the question have concluded that Bush's NSA program violated criminal law (something Schoenfeld neglects to mention). The clear criminality of the NSA program is further amplified by Schoenfeld's glaring omission of the FISA Amendments Act of 2008 — referenced not once in his entire book — which immunized telecommunications companies, terminated all pending lawsuits against them and legalized warrantless wiretapping. It raises the question of why such legislation was necessary, especially the retroactive telecom-immunity provisions, if no law had been broken.
In the next sentence, Schoenfeld states authoritatively that "Congress has enacted 'whistle-blower protection acts' that offer clear and workable procedures for civil servants to report misdeeds and ensure that their complaints will be duly and properly considered." Here's where Schoenfeld is really out of his depth. First of all, the primary whistleblower law, the Whistleblower Protection Act of 1989, does not even cover FBI and intelligence agency whistleblowers. Second, it is riddled with problems. Since 2000, only three out of 53 whistleblowers have received final rulings in their favor from the Merit Systems Protection Board. The U.S. Court of Appeals for the Federal Circuit, which has monopoly jurisdiction over federal whistleblower appeals of administrative decisions, has consistently ruled against them, with whistleblowers winning only three cases out of 205 since October 1994, when Congress last strengthened the law.
Schoenfeld states, incorrectly, that "[w]hen classified matters are at issue, these procedures include direct appeals to the Justice Department and to members of the intelligence committees in Congress." This could have been clarified if Schoenfeld bothered to read the two-page Intelligence Community Whistleblower Protection Act of 1998. Before going to congressional intelligence committees, an employee must get preclearance from the agency inspector general. It gets worse. Although not a model of legislative drafting, this law requires the employee to go through the agency inspector general even if that inspector general does not find the employee's complaint credible. This kangaroo process is a transparent attempt to keep employees from going to Congress in violation of the First Amendment, the Lloyd-La Folette Act and various anti-gag statutes. Not surprisingly, only three such complaints have been made to the Defense Department since 1998.
Finally, Schoenfeld states, also incorrectly, that whistleblower procedures "emphatically do not include...disclosing to...the New York Times." The Whistleblower Protection Act specifically permits a government employee to make disclosures of any information that the employee reasonably believes evidences a violation of any law, rule or regulation; gross mismanagement or waste of funds; abuse of authority; or a substantial and specific danger to public health or safety. It permits disclosure to be made not only to another official of the executive branch but to anyone — a reporter, a member of Congress or an interest-group representative. This has been well-supported by legislative history and case law from the Federal Circuit, which is hardly a friend of whistleblowers. The media are independent entities, such as Congress, to which disclosures may be made. In fact, courts have held, counterintuitively, that complaints to a supervisor about the supervisor's own conduct are not disclosures covered by the Whistleblower Protection Act, but disclosures to the press are protected.
To the extent that Schoenfeld is apoplectic about New York Times revelations, one can only imagine what he thinks of Wikileaks. I submit, however, that the answer lies in meaningful whistleblower protections, not retaliatory criminal prosecutions.
PROSECUTING REPORTERS AND SOURCES UNDER THE ESPIONAGE ACT
Schoenfeld decries "retrospective symmetry," in which a vision of the past is imposed upon the present. He almost sounds like a liberal when he says: "It will not do to...hold up the handiwork of the Founding Fathers as a template for our contemporary circumstances....We enter this historical terrain not out of some originalist impulse to embrace the standards of the eighteenth century and impose them on our own institutions." Yet he does not hesitate to graft modern words like "leaking" and "terrorism" onto his revisionist interpretation of history.
Perhaps Schoenfeld should move to England, where they have an Official Secrets Act, which punishes both the source and the publisher of secret government materials. Instead, Schoenfeld advocates bypassing Congress (anyone detect a trend here?) to create what is tantamount to a state secrets act by urging prosecution under the Espionage Act, thus doing an end-run around the democratic legislative process he insists he believes in. In a key chapter, Schoenfeld outlines a "hypothetical prosecution" of The New York Times. Although Schoenfeld takes credit for this idea, a number of scholars and judges have for years argued about the applicability of the Espionage Act's sweeping § 793 provision to the press. I will leave to others more expert in the area the arguments about why the First Amendment should immunize reporters conducting good-faith investigations for stories of public concern, even if they could technically be held liable under a broad inchoate theory of liability under the Espionage Act.
What is more disturbing is Schoenfeld's application of § 793(e)'s vast language to whistleblowers. In the 93 years of its existence, there have been only three prosecutions of "leakers" under the Espionage Act, which would seemingly counsel hesitation in using it to prosecute them as spies: the unsuccessful prosecution of Daniel Ellsberg and Anthony Russo in 1971 for disclosing the Pentagon Papers; the 1985 conviction of Samuel Morison — later pardoned by President Bill Clinton — for leaking U.S. satellite photos to a military-related magazine focusing on defense planning, weapons technology and world security threats; and the aborted 2005 indictment of two employees of the American-Israel Public Affairs Committee on charges of unauthorized receipt and transmittal of classified information — the first time the Espionage Act has been used against private citizens for doing nothing more than what other lobbyists and journalists do all the time. None of these men were spies. None betrayed the United States or intended to harm it. They neither gave nor sold information to foreign governments.
Moreover, Congress never intended for the statute to have such broad effect. From its inception, the Espionage Act engendered fears about its seemingly wide-ranging applicability. Sens. Lee Overman (D-N.C.) and Key Pittman (D-Nev.) emphasized during the 1917 debates that "[t]he object of the act is to punish a man guilty of a crime, and that crime consists of spying on this Government." Sen. Pat McCarran (D-Nev.) (hardly a champion of civil liberties, he is best known for the McCarran-Walter Act, a bill that empowered the government to deny visas for ideological reasons) asked Attorney General Thomas Clark to allay similar fears in the 1949 debate over amending the Espionage Act, which occurred the next year. Clark assured him, "Nobody other than a spy, saboteur, or other person who would weaken the internal security of the Nation need have any fear of prosecution under either existing law or the provisions of this bill." (Later, as a U.S. Supreme Court justice, Clark voted to strike down as unconstitutional President Truman's seizure of the nation's steel mills to end a strike in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) — the landmark case on presidential power in wartime, which limited the power of the president to act without explicit constitutional authority or congressional approval, that the Justice Department memos justifying secret surveillance neglected to cite.
Overly broad, ambiguous laws have an irresistible quality, and now — ignoring the president's own edict to "look forward, not backward" — the Obama administration, through its marching orders to Attorney General Eric Holder Jr., has literally taken a page from Schoenfeld's book by forcing a trial for espionage on a person who is not a spy: Thomas Drake. Unfortunately, the Espionage Act does not distinguish between spying and "leaking." A hurdle in the Drake prosecution will be demonstrating to a jury that he had the requisite state of mind that is a crucial element of the crime. Specifically, did he have "reason to believe" that his disclosure — if he made one at all — "could be used to the injury of the United States"? There is more than a reasonable doubt that Drake had any such state of mind. When Drake went to a reporter, it was only after his internal complaints fell on the deaf ears of his bosses, the NSA's general counsel and inspector general, the Defense Department's inspector general and the House and Senate intelligence committees. His disclosures were a matter of public concern and were clearly of public significance: The NSA went on a "billion dollar boondoggle" and ultimately chose an extremely intrusive surveillance program over an even better program that protected privacy.
In a logical absurdity, if you subscribe to Schoenfeld's argument, sources who disclose information to reporters would be criminally liable, reporters who then write about it for newspapers would be liable, the newspapers that publish the information would be liable, and by extension, any readers would be liable, especially if they e-mail the article, discuss it or disseminate it any further. The old adage goes, "it's not the crime, but the cover-up" that will ultimately get bad actors. Under this calculus, at least malfeasors are held accountable at some point. But Schoenfeld's version appears to be "it's not the crime — ever — but the exposure of it" that will be penalized. I submit that when secrecy is used to cloak illegal conduct, that is what should be punished.
Jesselyn Radack is the homeland security director at the Government Accountability Project. As an ethics adviser to the Department of Justice, she blew the whistle on the FBI's interrogation of "American Taliban" John Walker Lindh without an attorney present.