BROOKE GLADSTONE: This is On the Media. I'm Brooke Gladstone.
BOB GARFIELD: And I'm Bob Garfield. Last month, a former senior official at the National Security Agency pleaded not guilty to ten counts related to an investigation of leaks to a Baltimore Sun reporter. It was only briefly in the news, but, if convicted, the former NSA official would be the second person convicted of leaking during President Obama’s term in office. That’s a lot when you consider that these prosecutions are extremely rare. In 2005, The New York Times faced an investigation for printing classified information about the National Security Agency’s secret warrantless wiretapping of phone calls and email traffic between suspected Al-Qaeda operatives and American citizens. The Times held the scoop for a year, publishing it only when its reporter, James Risen, was about to reveal it in a book. The story and its timing led to accusations that the paper had self-interestedly, unpatriotically, and possibly illegally, hindered the war on terror. Among the critics was Gabriel Schoenfeld, a senior fellow at the Hudson Institute in Washington, DC, who said in Commentary Magazine that The Times had overstepped its First Amendment rights and should face prosecution for publishing such destructive National Security material. That piece inspired Schoenfeld’s new book, Necessary Secrets: National Security, the Media, and the Rule of Law, in which Schoenfeld makes the case that leaks can be deeply destructive by citing the history of consequential disclosures. His narrative begins with the founding fathers, who both affirmed free speech and agreed that not all information should be free.
GABRIEL SCHOENFELD The various Continental Congresses were conducted in secrecy. They really understood that we could not provide information that would help the British. The Constitution itself was drafted in secret to keep the members of the Constitutional Convention from being swayed by public opinion. Secrecy has a long and honorable history in our republic.
BOB GARFIELD: The Black Chamber affair, tell me about that.
GABRIEL SCHOENFELD Herbert O. Yardley, one of America’s greatest cryptographers in the 1920s, helped the United States break the Japanese codes, among other foreign governments’ codes. By the late ‘20s, early ‘30s, he was out of a job. But he knew all of the secrets of American cryptography, and he compiled them all and wrote a book about them, and he spilled the secrets. The book was very well received here, but in Japan it caused an absolute furor and provoked the Japanese military to invest heavily in cryptography over the course of the 1930s. And the speed with which our code breakers could break their codes, it slowed down. And by the time Pearl Harbor came along, we could not read most of their military traffic. It was encrypted in a way we couldn't penetrate. And part of the blame for that has to be laid on this leak by Herbert O. Yardley.
BOB GARFIELD: There’s another story you tell, of which I'd only been vaguely familiar, and it concerns Colonel Robert McCormick, who was, I think, founder and editor of The Chicago Tribune from the '20s into the '50s, and was a real FDR hater.
GABRIEL SCHOENFELD Well, there were two major leaks published during World War II under his editorship and ownership of The Chicago Tribune. First he revealed – this was December 5th, 1941 -
BOB GARFIELD: Two days before Pearl Harbor.
GABRIEL SCHOENFELD - a plan called Rainbow 5, U.S. war plans for Europe, and this had been leaked to him by an isolationist Republican senator, Senator Wheeler*. Roosevelt had promised not to take America into the war, and this was designed to show Roosevelt’s hypocrisy. Adolf Hitler read it, and it was one of the factors right after the Japanese attack on Pearl Harbor that prompted Hitler to declare war on the United States. Six months later, The Chicago Tribune went on to publish a story, right after the Battle of Midway, strongly suggesting that the United States had won that decisive naval victory because we were reading Japanese codes. If the Japanese had taken this story seriously, we would have been left blind and deaf in the Pacific. Thousands of American soldiers, possibly tens of thousands, countless civilians, would have perished and the war would have been prolonged. We were extremely lucky. The Japanese, for some reason, did not take the story seriously. They did not change their codes. The Justice Department actually initiated a prosecution, compiled a grand jury to hear evidence against The Chicago Tribune, the only time that’s ever happened with a newspaper in our entire history. But they decided to stop the proceedings precisely because the War Department had reported back to them that they were anxious not to draw even further attention to the story.
BOB GARFIELD: With very few exceptions, the government has not prosecuted whistleblowers, publications or anybody else for what might have been deemed explicit violations of statutes governing classified information. Why is that?
GABRIEL SCHOENFELD Well, first and foremost, because we're an open society, and that’s a wonderful thing. And also, it’s difficult to prosecute in many of these cases. There have been only three successful prosecutions of leakers in our entire history, one under Reagan, one under George W. Bush and one under Barack Obama. And now Barack Obama has – the Justice Department has initiated the second, a senior official at the National Security Agency who leaked information to The Baltimore Sun. And so if this man, Thomas Drake, is convicted, President Obama would become the first president to send two leakers to prison under his watch in office as President.
BOB GARFIELD: In - the immediate aftermath of a leak is often called damaging, injurious, creating a clear and present danger and so forth, often turns out to be so much huffing and puffing. The boy has cried wolf so often, it’s understandable that the default assumption, when the protests of breached national security are made, is that there’s no “there” there.
GABRIEL SCHOENFELD There are cases where the government has plainly lied or vastly overstated the damage of leaked materials. And I think that the Nixon administration in a way poisoned the well for all future administrations in the Pentagon Papers case, declaring to the courts that exceptionally grave damage would follow publication. It turned out that it was all historical material. It didn't compromise ongoing intelligence operations. But we've moved forward to a very new situation where newspapers are publishing information that is ongoing and current operational intelligence, not historical materials like in the Pentagon Papers. So when senior government officials, like General Hayden, say that the damage has been severe, I think we should take them at their word.
BOB GARFIELD: Let's return to the story that began this exploration for you – the NSA story revealing the wiretaps, without a warrant, of hundreds or thousands of American citizens. Now, you make a case that this was a blow to operational security, and it may well have been. But it also was about a program of dubious legality at the time. Wasn't it The New York Times’ duty to reveal this program once it understood that it was taking place?
GABRIEL SCHOENFELD No, I don't think it was its duty, and I don't think the program was an illegal program. Of course, there’s debate about that today, and people of good will disagree. But the fact is that Congress had been briefed on this program twelve times and no one in Congress, the Gang of Eight, or the ranking officials of Congress in both parties, objected to it on any occasion. One of them raised a question about it.
BOB GARFIELD: That was Senator Jay Rockefeller.
GABRIEL SCHOENFELD Correct. He wrote a letter to the Vice President and he put a copy in his safe, not exactly the behavior of a passionate objector to the program. And there’s been no indication of any abuses of civil liberties because of this. This was a counterterrorism program designed to keep us safe.
BOB GARFIELD: Just a few months after revealing the wiretapping program, Risen and Lichtblau came back with a story talking about another program that tracked terrorist channels of funding through their SWIFT transactions – that’s the Belgian clearinghouse for wire transfers of funds – and told Al-Qaeda and everybody else exactly how we were going about that. Flipped you out.
GABRIEL SCHOENFELD That's right, it did. And in the case of the NSA wiretapping story, The Times said, at least, well, there’s debate within the government about the legality of this program. But in this instance, there really was no such debate. The program was just black-letter-law legal. Eric Lichtblau, one of the reporters, said, “Above all” – this is a quote – he said, “Above all, it was an interesting yarn.” That’s an utterly trivial justification for publishing a story that damaged our ability to track Al-Qaeda. Attorney General Michael Mukasey has called this kind of journalism “intelliporn,” the publication of intelligence secrets to titillate the public, and for no other reason.
BOB GARFIELD: Okay, let's just say you’re right, that it was published because it was a scoop and for no other reason. And, as you lay out in the book, it’s very difficult for the government to prosecute cases not only on First Amendment grounds but just because of all the corollary information that gets revealed during the litigation of the case and because of the political blowback of prosecuting respected news organizations. But we've also established that the government over-classifies and exaggerates every single whistle-blowing incident and the consequences thereof. Where does that leave us?
GABRIEL SCHOENFELD We really are stuck. On the one hand, we do want the press to have discretion to publish secrets, precisely because there is over-classification and misclassification. On the other hand, we do want the government to be in a position to say, no, what you've done here goes too far. And there are statutes on the books that protect certain classes of information, like cryptography, like the design of nuclear weapons, like the identities of intelligence agents.
BOB GARFIELD: I should say that my greater issue with your book is that it constructs a straw man based on the supposition that the press somehow believes that it’s always okay to print whatever it learns because – because it can. But I don't think that’s true. The press wouldn't reveal, say, the timing and location of the invasion of Europe, D-Day. It wouldn't ordinarily out CIA officers or agents. It wouldn't reveal military codes. There are, in fact, established protocols for working with the government when these stories arise to determine the stakes of revealing certain information.
GABRIEL SCHOENFELD I agree with that, that the press is not reckless in every instance and that they do make an effort to consult with the government. But what concerns me are these two specific cases, where in the face of very strenuous government objections, there were – again, you had ranking Democrats like Lee Hamilton, co-chair of the 9/11 Commission, telling The Times, do not publish this. And when those particular areas are violated, I think the government can and should prosecute journalists who trespass on the public’s right not to know. And the public’s right not to know is something that’s rarely spoken about, let alone defended, but it’s perfectly obvious why we don't want to know certain things that our government is doing. It’s because if we know those things, our adversaries know them as well.
BOB GARFIELD: All right, Gabriel. Thank you very much.
GABRIEL SCHOENFELD My pleasure, it was fun.
BOB GARFIELD: Gabriel Schoenfeld is senior fellow at the Hudson Institute in Washington and author of Necessary Secrets: National Security, the Media, and the Rule of Law.
[MUSIC UP AND UNDER] *Gabriel Schoenfeld referred to senator Burton Wheeler as a Republican. In reality, Senator Wheeler was a Democratic senator.