Gabriel Schoenfeld, in his recent book, fails to mention that some government secrets hide illegal government activity.
August 9, 2010(Originally published in the National Law Journal)
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 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.
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 uber-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 Congress 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.
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