Book review: 'Necessary Secrets: National Security, the Media, and the Rule of Law' by Gabriel Schoenfeld
the Media, and the Rule of Law
By Gabriel Schoenfeld
Norton. 309 pp. $27.95
At a time when Americans understandably feel vulnerable to international terrorism, Gabriel Schoenfeld is sounding an alarm about what he believes to be an equally menacing internal threat: journalists.
In general, he means journalists "who would subvert democracy by placing themselves above the law" when they publish classified information "leaked" by government and other sources.
And in particular, he takes aim at journalists at the New York Times who revealed in 2005 and 2006 two secret Bush administration antiterrorism programs: warrantless surveillance of some Americans' international telephone calls and e-mails, and the exploitation of a Belgian electronic banking clearinghouse to track individuals' international financial transactions. Schoenfeld forcefully argues, with deeply researched and closely reasoned legal and historical justifications, that publication of those stories violated espionage laws. In his view, Times editors and reporters, from Executive Editor Bill Keller on down, should have been prosecuted and imprisoned.
A senior fellow at the conservative Hudson Institute, Schoenfeld acknowledges that, under the First Amendment, the government, as the U.S. Supreme Court ruled in the Pentagon Papers case, may seldom, if ever, be justified in using prior restraint to prevent publication of anything. But he argues that journalists could and should be prosecuted if they knowingly violate espionage laws. "Necessary Secrets" is an expansion of what he first expressed in a 2006 Commentary magazine article and a statement he later made to the Senate Judiciary Committee.
The Times justified revealing these covert programs by claiming that 1) there was debate about their legality within the government; 2) the programs could involve invasions of Americans' privacy; and 3) the programs' extraordinary nature made them "a matter of public interest." Such reasoning, Schoenfeld argues, is outweighed by the Bush administration's determination that these covert efforts were necessary in wartime and should have remained secret. The larger problem, he concludes, is that, ever since Watergate and the Pentagon Papers, journalists have come to believe that they alone should decide what is in the national interest. He depicts them as overly eager to publish every leaked secret they can get their hands on.
He raises significant and troubling questions about whether some decisions to publish classified information are influenced by journalists' personal agendas, such as knee-jerk anti-government biases or cashing in by writing books that reveal national security secrets. But he misleads his readers by implying that classified-information leaks have been raining down on reporters who care little about the consequences of what they publish. In my experience, most national security reporting involves incremental probing of multiple sources who may eventually share fragments of information about important policy issues that must be carefully pieced together and checked for accuracy with senior officials, who are given the opportunity to raise any concerns about publication.
Schoenfeld does not dwell on those instances in which the publication of classified information, sometimes over official objections, has held the government accountable for its conduct, such as The Washington Post's revelations of secret CIA prisons in foreign countries, where "enhanced interrogation techniques" were used on terrorism suspects outside the U.S. legal system. He does not discuss, perhaps because he does not know, how often news organizations have withheld from publication classified national security information, usually specific operational details, when the government has argued convincingly that disclosure would harm human life, jeopardize military actions or disrupt covert operations. Instead, he dwells on a limited number of instances in which he believes publication caused largely unspecified harm.
His book describes the news media as relatively naive and cavalier when making decisions about national security stories. I remember from my quarter-century as managing editor and executive editor of The Post that these decisions required extensive fact-finding, expert consultation, soul-searching and, yes, knowledge of and respect for the law. Yet the weight of his book's scholarship, the timeliness of its publication and the audacity of its argument make it essential reading for anyone seriously interested in national security and freedom of the press in these testing times.
Of course, if journalists or news organizations knowingly break the law, they can be held criminally liable, just as any other citizen or institution can be. But Schoenfeld clearly wants a well-known news organization like the New York Times and its journalists, to which he is obviously antipathetic, to be prosecuted to create what lawyers call a chilling effect on the rest of the American news media, persuading them to abdicate their right and responsibility to decide what they publish and broadcast. That, indeed, would subvert our democracy.
Leonard Downie Jr. is the Weil family professor of journalism at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University and vice president at large of The Washington Post.