"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.
Every administration leaks classified information because it's virtually impossible not to. As Frankel explained, "For practically everything that our Government does, plans, thinks, hears and contemplates in the realms of foreign policy is stamped and treated as secret." Forty years later, his words ring truer: The U.S. government classified 77 million documents in 2010, a more than twelvefold increase since 1991. Of the more than 4.2 million people who hold some sort of classification clearance, 1.4 million of them are "top secret" -- the highest classification.
It is for that reason that one can't step a foot into the shallow end of any leak controversy without stumbling upon rank hypocrisy. Sen. Dianne Feinstein, who has led the charge calling for more leak investigations this time around, was once accused of leaking classified information when she revealed the location of a Pakistan drone base during a Senate hearing. Sen. Richard Shelby, sponsor of an anti-leaks bill that passed the Senate during Bill Clinton's administration, was found to have leaked classified information to journalists about the NSA a few years later.
Attacks on Freedom of Press
Other leak investigations have engulfed journalists, but the current probe may dwarf others. Given one of the many stories being investigated alone counted three dozen current and former officials as its sources, prosecutors will soon get their hands on mountains of email containing correspondence with reporters. Journalists from the New York Times, AP, Newsweek and perhaps others can expect the Justice Department will now have their emails with these officials. How many journalists will be spied on by the government they're supposed to cover? How many future foreign-policy stories will be disrupted because of this? Will journalists again face the conundrum: give up their sources to a grand jury or face jail? Only time will tell, but the answers will likely not be good.
Thankfully, media outrage toward the potential prosecutions has grown in recent days, as well it should; but it is long overdue. The Obama administration has already brought six Espionage Act cases against low-level leakers -- more than all previous administrations combined. And the grand jury empanelled in Alexandria, Virginia, investigating WikiLeaks for publishing classified information threatens to take this controversy one step further -- criminalizing the reporting aspect of leaks and making a mockery of the First Amendment. It shouldn't take investigations into the powerful for us to stand up for press freedom.
America's finest journalism is often produced with the aid of classified information; the New York Times's report on warrantless wiretapping and the Washington Post's exposé on CIA secret prisons, both winners of the Pulitzer Prize, are just two of countless examples. If the Justice Department were charged with investigating every leak, not only would the public not know what its government was doing, but government would cease to function. Indeed, if leak prosecutions had been commonplace for the last four decades, nearly every senior White House official would be in jail -- just for talking to Bob Woodward.
To put it simply, quoting Frankel, leaks are "the coin of our business and of the officials with whom we regularly deal." If Congress has a problem with that, then more transparency is the answer -- not more secrets.