Should The New York Times Be Prosecuted for Disclosing Bush Administration Secrets?

Necessary Secrets: National Security, the Media and the Rule of Law
by Gabriel Schoenfeld  

Reviewed by Fritz Schwarz

This is a thoughtful, important, and interesting book.

Necessary Secrets’ principal point is that for four decades, the media has become reflexively dismissive of government claims that publication of certain secrets will severely damage national security.  The main target is The New York Times, which Schoenfeld contends should have been prosecuted for its revelations in 2005 and 2006 about the Bush Administration’s secret warrantless wiretapping and bank information programs.   

Schoenfeld’s case for prosecution is flawed.  But Schoenfeld is not a single-minded ideologue.  To the contrary, he sees both sides of important issues, and touches on some weaknesses in his case for prosecution.  Moreover, the book is well worth reading for its sweeping, and often gripping, historical survey of leaking since the Revolution. 

Despite getting his case for prosecution and a few facts wrong, Schoenfeld sparks an interesting debate, one that readers will want to join. 

Schoenfeld begins by harking back to our Founding Fathers, noting that while they “constructed a political system based on a high degree of transparency,” and believed “openness is an essential prerequisite of self-governance,” they did not flash a green light for the publication of any and all secrets.  Thus, as two early examples, George Washington wrote during the Revolution that “there are some secrets, on the keeping of which so depends, oftentimes, the salvation of an Army.”  And Patrick Henry, in opposing ratification of the Constitution, partially on the ground of its lack of sufficient transparency, said he nevertheless “would not wish to be published” material relating “to military operations or affairs of great consequences, the immediate promulgation of which might defeat the interests of the community.”  

Words aside, the Founders’ actions placed limits on openness.  The Constitutional Convention of 1787, for instance, was conducted in strict secrecy—although the significance of this has been repeatedly exaggerated by secrecy advocates, including the Supreme Court in United States v Nixon.[1]  Moreover, the Constitution itself allows both the Senate and House to meet in secret—although a seldom noticed provision allows one-fifth of the members to force all votes to be made public. 

In developing his case against the Times, Schoenfeld uses his description of the Founders to tut tut at Times’ editor Bill Keller for contending that the “‘people who invented this country’” would obviously have blessed the Times’ publication of the Bush-Cheney secrets. 

But then, in his typically fair approach, Schoenfeld rejects Scalia-type “originalism.”  Today’s secrecy issues should not be resolved—either pro or con—by reliance on the Founders’ views.  Too much has changed.  The presidency “has grown hugely in scope and power since 1789,” and “successive technological revolutions have given the executive branch surveillance and information-storage powers of astonishing reach.”    

To buttress his point that there are secrets whose disclosure harms the nation, Schoenfeld dramatizes a series of leaks.  The earliest was the revelation during the Revolution that France had been secretly providing a “massive covert infusion” of money and material assistance to America’s hard pressed revolutionary army.  The French were still publicly neutral.  The leak embarrassed them—though they continued to support the revolutionaries; soon doing so openly. 

The leaker was Thomas Paine, then Secretary of Congress’s Foreign Relations Committee, and earlier the author of Common Sense, the powerful pamphlet that boosted American’s revolutionary spirit.  While Paine faced “scathing attacks” and lost his job, he suffered no further penalty.  Indeed, years later, on George Washington’s recommendation, Paine was rewarded for his services to the Revolution with an estate in New Rochelle. 

This early example of immediate expressions of outrage about a leak, but no more serious action, has often been repeated in the more than two centuries after Paine.  When Schoenfeld makes his case for prosecution of the Times, this pattern is one of many problems he candidly recognizes.   

Jumping ahead to the 1930s, a huge leak was triggered by Secretary of War Henry Stimson’s cutting back on American code breaking because, in his view, “gentlemen do not read each others mail.”  America’s leading code breaker, Herbert Yardley, suddenly “out of a job in the Great Depression,” and believing that code breaking was a valuable tool for the nation, responded with a book that revealed all the codes we had broken since World War I.  One possible publisher, Viking, rejected the book after consulting military intelligence because of “harm to the national interest.”  But Bobbs-Merrill decided to publish.  “Aware of the risks, its lawyers did not advise restraint.” 

Among the broken codes highlighted by Yardley’s book were Japan’s––first used to Japan’s disadvantage at the Washington, D.C., Naval Conference held in 1921 where Americans read all the coded messages sent or received by the Japanese.  As Yardley put it, five-card “stud poker is not a difficult game after you see your opponent’s hole card.” 

Schoenfeld asks whether the Japanese attack on Pearl Harbour on December 7, 1941, would have been prevented absent Yardley’s leak.  Thus, Schoenfeld quotes telegrams on December 5 and 6 to and from a Japanese Consular official in Hawaii referring to “a surprise attack” on U.S. Naval ships in Pearl Harbour.  These cables were not successfully decoded and read until after the attack—perhaps because after the Yardley book, the Japanese continually revised and tightened their codes. 

In an echo of Paine being given a New Rochelle estate, however, Yardley, while derided for the book when it was published, “lies undisturbed in Arlington National Cemetery in a grave next to those of our greatest heroes.” 

As World War II was waged, there were several more harmful leaks.  For example, Congressman Andrew Jackson May learned on a tour of U.S. Pacific bases that American submarines were succeeding in part because Japanese depth charges were fused to detonate far above our submarines.  May soon held a press conference boasting about the high survival rate of American subs, attributing it to the faulty Japanese calculations.  The Japanese then recalibrated their depth charges.  Later, the Commander of the U.S. submarine fleet in the Pacific estimated that the result was the loss of ten subs and the death of 800 U.S. sailors. 

Also during World War II, the Chicago Tribune wrote a story about the June 1942 Battle of Midway, the major battle where the U.S. Navy began to turn the tide against the Japanese navy.  The story included details that made clear that U.S. intelligence was reading the secret, coded Japanese naval communications.  (The Tribune reporter had been on a U.S. ship where he was improperly shown a classified translation of the Japanese plan of attack on condition he not write about it.  But he did.) 

Neither Congressman May nor the Chicago Tribune (whose publisher, Col. Robert McCormick, despised FDR) faced any consequences.[2]  The Justice Department did open a criminal investigation of the Tribune but decided not to indict, with Schoenfeld speculating that one reason was that a trial would call greater attention to our successful code breaking when “considerable uncertainty “remained about whether the Japanese knew.” 

The Manhattan Project, responsible for building the atomic bomb during World War II, took secrecy to a historically unprecedented level which Schoenfeld captures concisely.[3]  But what was surprising to me was the extent to which whiffs of revealing information seeped through the barriers.  Tennessee newspapers mentioned “secret war production of a weapon that possibly might be the one to end the war.”  The Washington Post said the Senate’s Truman Committee was investigating a half-billion dollar War Department project.[4]  The Minneapolis Morning Tribune wrote in August 1944—one year before the bomb was used against the Japanese—that uranium sales were being restricted by the U.S. government, and that “all known explosives are popgun affairs compared to the dreadful power sub-atomic energy might loose.”  And, also in August 1944, the radio program Confidentially Yours—which reached some two million listeners—announced that the Army would soon create a new weapon based on splitting the atom. 

Fortunately, neither the Germans—who were working on their own bomb—nor the Japanese picked up these hints.  Could those hints (or the Chicago Tribune’s story about Midway) possibly be missed in today’s internet age? 

Then, for a flicker right after World War II, there was movement to relax secrecy.  The wartime Office of Censorship was abolished.  And, perhaps because leading scientists had expressed concern that blanket secrecy inhibited scientific progress, the original draft of the Atomic Energy Act called for “‘the free dissemination of basic scientific information and for maximum liberality in dissemination of related technical information.’”  With the onset of the Cold War, however, the Act as passed and signed by President Truman, shifted and banned dissemination of any information touching on nuclear technology.  Nuclear information was “born secret.” 

Truman also expanded classification, and set tight rules on the handling of classified material.  And Congress passed a new law making it a crime to make available, or publish, any classified information “concerning the communications intelligence activities of the United States.”  Schoenfeld italicizes publish, and also notes that the Comint Act was endorsed “by the American Society of Newspaper Editors, an organization in which the leading editors of The New York Times were active members.” 

Indeed, for a while after World War II, the media was generally relatively compliant with secrecy.  Probably more than was good for the country.  For, as later investigations—particularly the Church Committee for which I was Chief Counsel—and investigative reporting revealed, for decades secrecy stamps had all too often been used to cover foolishness, embarrassment, impropriety, and illegality.   

But Schoenfeld says that in the 1950s and early 1960s “top reporters and columnists and approximately twenty-five news selling organizations, including The New York Times, Time, Inc., and CBS, had been secretly cooperating with the CIA in all sorts of ways.”[5]  At some time in the late 1960s or early 1970s, however, there was, in fact, and as recounted by Schoenfeld, a sea change in how much of the media thought about secrecy.  Schoenfeld uses two case studies to illustrate the change:  Ramparts magazine’s exposure of the CIA’s secret relationship to the National Student Association and Daniel Ellsberg’s leak of the Pentagon Papers, first published in the Times.[6]   

Schoenfeld concludes that the Ramparts story appropriately revealed CIA foolishness.  It was “a virtually inevitable leak that flowed from the shortcomings of American intelligence, which, not withstanding its triumphs in the previous decade, was by the 1960s becoming increasingly sclerotic.” 

After Ramparts, the Times’ exposed many other organizations “that had been on the payroll of the spy agency.”  But Schoenfeld once again enjoys a dig at the Times:

“While publishing not a word about its own long-standing and intimate history of collaboration with the CIA, it dug further into the subsidies to others…”

As for the Pentagon Papers, Schoenfeld says the article in the Times and other papers revealed “no current operational secrets.”  Moreover, the “principal harm” was “diplomatic embarrassment and a vivid demonstration to American allies and adversaries alike that the U.S. government was having severe difficulties keeping its secrets secret.”  But, Schoenfeld opines, “both those forms of damage are no doubt ones that an open society, if it is to remain open, must accept.” 

Nonetheless, in a precursor to part of his case against the Times, Schoenfeld characterized the leak as an “assault” on “orderly government” and, without much explanation, on “democratic self-governance itself”—”because we have an “elected president and elected representatives.” 

Ramparts, and coverage of the Pentagon Papers by the Times and other papers, while important, were just part of the sea change in the media’s attitude toward secrecy.  But, when assessing responsibility, Schoenfeld, for once, is overly simplistic.  He places blame for the sea change squarely on the shoulders of Richard Nixon.  Thus, Schoenfeld concludes his chapter on the Pentagon Papers by saying:

“If our country has had an especially unhappy history wrestling with secrets over the succeeding four decades, Richard Nixon is the major reason why.  No other president in American history has given secrecy such a bad name.”  

Nixon did secretly break the law—perhaps most outrageously in ordering the break-in of the office of Ellsberg’s psychiatrist.  And Nixon then attempted stealthily to cover up White House crimes.  But if Nixon’s were the only harmful excesses of Cold War secrecy, it would not have produced a sea change in attitudes toward secrecy.  

Thus, while the Pentagon Papers were leaked during Nixon’s presidency, they dealt with earlier administrations:  Johnson and Kennedy, and to a lesser extent Eisenhower and Truman.  The sting in the press reports about the Pentagon Papers was that secret internal documents from the pre-Nixon administrations gave the lie to those administrations’ public statements about the Vietnam War.  As for Ramparts, the story was published during the Johnson Administration, and exposed CIA funding of the National Student Association for the preceding twenty years. 

In contrast to Schoenfeld’s singular blame on Nixon, the Church Committee proved that all six Administrations, of both parties, from Franklin Roosevelt through Richard Nixon had abused their secret powers.  While Nixon and J. Edgar Hoover make “convenient villains,” the abuses were not the “work of a few bad men.”[7]  The abuses were long lived and systemic. 

Schoenfeld’s narrow focus on Nixon, and his related underestimation of the systemic, longstanding harms caused by excessive secrecy, are part of a mindset that helps explain the flaws in his case for prosecution of the Times. 

Flaws in Schoenfeld’s Case Against the Times.[8]

Schoenfeld has both a simple and a convoluted case for prosecution.  The simple case is we have been at war since 9/11 and this war is “overwhelmingly dependent” on the “effectiveness of the tools of intelligence,” which, in turn, depend on “their clandestine nature.”  The convoluted case is that the warrantless wiretapping was classified; decisions about classification are made by presidents; laws against exposure of secrets are made by Congress; presidents and members of Congress were chosen in democratic elections—and, therefore, the Times’ articles were an “assault on democracy.” 

To reach these conclusions, Schoenfeld underestimates the contribution of the Times’ article to public debate on a core issue in a constitutional democracy, and overestimates the harm caused by the article.  In making these errors, Schoenfeld obscures what the Times’ article actually said, misstates the purpose of the law that requires warrants, and misreads historical examples from Presidents Lincoln and Roosevelt. 

Let’s start with what the Times did—and did not—say.  The headline of the Times’ article was “Bush Lets U.S. Spy on Callers Without Courts.”  Its lead sentence was “[m]onths after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying . . . .”  The focus of the article is on concerns within the government about “operational legality and oversight.”  (The question of legality arose because, in 1977, Congress passed the Foreign Intelligence Surveillance Act (or FISA).  The law prohibited national security wiretapping without a warrant issued by a special super-secret court (except for short emergency periods).) 

So the thrust of the article was about the Administration’s position that a president has the right to violate a law—and to do so secretly.  Surely, that is a matter of great importance in a constitutional democracy. 

Schoenfeld notes the existence of FISA but misstates its purpose.  FISA was not designed to “facilitate evidence gathering for prosecution.”  Instead, FISA covered intelligence gathering relating to “terrorism” and “espionage.”  It had different procedures—including more secrecy—than wiretapping in investigating ordinary crimes.  

The FISA court almost always had approved requests for warrants—although the need to seek warrants probably made intelligence officers more careful.  Moreover, Congress had shown a willingness to update FISA to deal with changes in the way messages are transmitted electronically.  But, as Schoenfeld correctly concludes, the Bush Administration “nonetheless rejected this idea,” for “doctrinal” reasons.  Schoenfeld explains that the White House, led in his telling by David Addington, Vice President Cheney’s counsel, believed FISA had invaded what Addington asserted was the President’s exclusive power to decide—secretly, and with no warrant requirements or other checks—who should be wiretapped. 

Then Schoenfeld goes on to “assume” the NSA’s warrantless wiretapping violated the law—surely thereby undermining his case against the Times.  But, he argues, “there were ample precedents for a president to bend or break the law when facing a supreme national emergency like the one the United States was facing after 9/11.”  The two examples given are FDR’s destroyer deal with England (“an unadorned violation of the Neutrality Act”), and Lincoln’s suspension of habeas corpus (“usurping Congress’s power under the Constitution.”).  But Schoenfeld here misses another key point.  Both Lincoln and FDR acted in the open.  Bush-Cheney did not. 

And that is what the Times story was about:  a secret program that violated a statute.  Moreover, the constitutionality of the program could only be defended by a secret opinion by the Justice Department’s John Yoo. This opinion purported to be the law, yet the Congress, the public and the legal profession were not permitted to know—or to critique—this secret law. This too merited the attention of the media. 

Moreover, the article did not undermine the effort against al Qaeda in any meaningful way.  Thus, the article was not about, for example, how NSA picks targets, or what key words it might use to decide which communications to review more closely. 

Nevertheless, before publication, President Bush told the Times, at a White House meeting, that if it went ahead with the story and another Al-Qaeda attack ensued “‘there will be blood on your hands.’”  (Perhaps between earlier drafts and publication details like key words were deleted.)  But, as Schoenfeld himself notes, the Administration never spelled out in a “precise way the nature of the harm.”  However, says Schoenfeld, “it is not difficult to imagine that a highly publicized report indicating that the NSA could readily tap into calls from, say, Islamabad to Detroit, might cause some Al-Qaeda communications to dry up.”  This is much too loose.  For, under the existing FISA warrant system, there also could be taps into calls “from Islamabad to Detroit,” which would be approved by a secret court order. 

Schoenfeld’s prosecution theory is breathtaking in its breadth.  Isn’t secretly ignoring the law and the implications for American values precisely what ought to be debated in the Congress, in the press, and among the public?  Schoenfeld implicitly seeks to trump this question by relying on another American value:  representative democracy itself.  Schoenfeld set this up by characterizing Ellsberg’s leak as an “assault on democratic self-governance.”  “For better or worse the American people in those years had elected Kennedy, Johnson, and Nixon; they had acted at the ballot box to make their leadership and policy preferences clear, including preferences about secrecy.”  Again truly breathtaking.  Surely, no voter made “clear” a preference for the secret use of “monarchial” prerogatives to ignore the law.  Yes, the public knew there was a classification system.  But classification stamps are widely known to be over-used.  And Schoenfeld is far too fair to argue that just because a classified document is published, a crime was committed by the publisher. 

Let us now hark back to Schoenfeld’s tut tut at Times editor Bill Keller’s contention that the “people who invented this country” would have blessed publication of the warrantless wiretapping article.  If one takes Keller as suggesting that the Founders would have approved publication of all secrets, it surely is correct to criticize Keller’s use of history.  But not so if the focus is on what the article actually was about.  For, having just revolted against monarchial arrogance, the Founders would surely have blessed a story exposing a president’s secret claim of power to violate a law.

The Times got at fundamental questions in a constitutional democracy.  Just as the press, at its best, should do.