NECESSARY SECRETS

A Hudson Institute scholar examines the enduring tension between the government’s need to preserve certain secrets and the role of a free press.

In December 2005, basing its article on leaked documents, the New York Times reported the details of a National Security Agency program to tap al-Qaeda phone calls and e-mails, which the paper characterized as unambiguously illegal. President Bush called the decision to publish “shameful.” Schoenfeld (The Return of Anti-Semitism, 2004) insists that the Times should have been prosecuted for this breach of security and for its subsequent decision to print the particulars of an intelligence program tracking terrorist financing. First Amendment absolutists, once apprised of the author’s conclusion, will likely ignore the rest of the book—which is a shame, because they’ll miss an intellectually muscular argument that chisels away at some cherished myths. Fully aware of the need for transparency in a vibrant democracy, and cognizant of the state’s duty to protect its citizens, Schoenfeld understands that neither the government, with its inclination to overclassify and penchant for selective, self-interested leaking, nor the press, with its competitive imperatives, is a wholly clean actor in the ongoing contest between the public’s right to know and its equally valid interest in security. As backdrop to his argument in favor of more stringent security and to legal proceedings that might extend to journalists, the author offers an efficient survey of famously unauthorized press disclosures, including the 1970s cases of Daniel Ellsberg and the 1985 case of Samuel Morison, the only successful prosecution—for reasons Schoenfeld makes clear—of a leaker in U.S. history. Throughout, the author relies on pertinent statutory and case law to demonstrate that the rules clearly contemplate criminal prosecutions covering journalists, notwithstanding any chilling effect on the press. Despite his predilections, Schoenfeld wisely counsels discretion, urging the government to distinguish between what’s right and proper from what’s wise and prudent, and for the press to understand that public tolerance of heedless behavior has limits.

A timely, sure-to-be controversial take on a problem that has no easy resolution.