"I know how strange all this must sound. We have been taught, particularly in the past generation of spy scares and Cold War, to think of secrets as secrets -- varying in their ‘sensitivity' but uniformly essential to the private conduct of diplomatic and military affairs and somehow detrimental to the national interest if prematurely disclosed. By the standards of official Washington -- Government and press alike -- this is an antiquated, quaint and romantic view." — Former New York Times Washington correspondent Max Frankel, 1971
Since the New York Times published two important stories containing classified information two weeks ago -- one being U.S. President Barack Obama's "kill list" and another regarding a series of U.S. cyberattacks against Iran -- Congress has been replete with bipartisan outrage. Embarrassingly, this outcry has not been directed toward debate of the potentially unprecedented constitutional implications brought about by the stories, but about who leaked the classified information to reporters.
Congress's call for increased government secrecy by way of prosecution, which has led to Attorney General Eric Holder assigning two Justice Department attorneys to investigate the alleged leaks, threatens the very foundation of reporting on U.S. national security and foreign policy. Leaks have been the lifeblood of investigative journalism -- and Washington politics -- for decades. If they become criminalized on a large scale, it could do irreparable damage to both freedom of the press and the public's right to know what the government is doing abroad in its name.
A Long History of Leaks
This was the lesson learned 41 years ago this month, when Richard Nixon's administration tried to censor the New York Times for publishing classified information in the Pentagon Papers case. As James Goodale, the paper's general counsel at the time, recounted to me this week, even the Times's outside lawyers did not understand how much leaks affected foreign-policy reporting at the start of the case. The first batch of Times lawyers quit the night before the first court hearing, and the newly hired replacements were still leery of the Times's contention that leaking was commonplace. Veteran Washington correspondent Max Frankel, who reported on the Pentagon Papers, was so incensed after trying in vain to convince them that he went home and wrote down his argument in essay form.
"What Frankel wrote became one of the most important documents in history of press freedom," Goodale said. "Not only did it sway our outside lawyers to defend the case in court, but we turned it into sworn statement which helped sway the district court judge to rule in our favor."
Without leaks, "there could be no adequate diplomatic, military and political reporting of the kind our people take for granted, either abroad or in Washington," Frankel wrote. "[T]he reporter and the official trespass regularly, customarily, easily, and unselfconsciously (even unconsciously) through what they both know to be official ‘secrets'....almost everything in government is kept secret for a time and, in the foreign policy field, classified as ‘secret' and ‘sensitive' beyond any rule of law or reason. Every minor official can testify to this fact." Attached were dozens of examples and clipped stories of classified information appearing in the paper consistently for years. Frankel's full affidavit can and should be read in full here.
Administrations have always done exactly what Obama's has: condemn leaks in public while leaking for its own benefit. Dwight Eisenhower "deplore[d]" leaks when asked, but would call New York Times reporter Scottie Reston into the White House to feed him off-the-record material. John F. Kennedy once stated in a press conference that any leak of national security information was "unfortunate" and denied knowing any specifics, yet Frankel writes of being allowed to quote from transcripts of conversations with the Soviet Union's foreign minister to demonstrate, like Obama, Kennedy's "‘toughness' toward the Communists." And Bush -- who said, "if there is a leak out of my administration, I want to know who it is. And if the person has violated law, the person will be taken care of" -- presided over an administration that leaked classified information to justify the Iraq war and outed a covert agent in response to criticism.
Franklin Roosevelt was probably the greatest leaker of all, calling reporters into the Oval Office for off-the-record press conferences, after which they could only attribute his quotes to a "senior administration official." Even the founding fathers were guilty: Thomas Paine once leaked a state secret about the United States covertly receiving aid from France before the two countries became allies. And the list goes on.