Criminal Justice & the Rule of Law Executive Branch Intelligence Surveillance & Privacy

Critical Comments by Rahul Sagar on My Post on Kinsley

Jack Goldsmith
Monday, June 2, 2014, 10:51 AM
Rahul Sagar is Associate Professor at Yale NUS and the author of the terrific and timely Secrets and Leaks: The Dilemma of State Secrecy (reviewed favorably by Steven Aftergood on Lawfare and Eric Posner in TNR).  He writes in with some critical comments on my

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Rahul Sagar is Associate Professor at Yale NUS and the author of the terrific and timely Secrets and Leaks: The Dilemma of State Secrecy (reviewed favorably by Steven Aftergood on Lawfare and Eric Posner in TNR).  He writes in with some critical comments on my post last week on Michael Kinsley, to which I have some rejoinders at the end.
As the brouhaha over Michael Kinsley’s review of Glenn Greenwald’s screed winds down, and the Edward Snowden circus moves on to the next destination, there is a brief window to think through some of the claims and counter-claims made in recent days. I am struck in particular by Jack Goldsmith’s comment on Kinsley’s review, because his remarks appear overly restrictive with respect to the legitimacy of secrecy and overly generous with respect to the legitimacy of the press. The debate over Kinsley’s review centers around the following claim:

The question is who decides. It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy (which, pace Greenwald, we still are), that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Glenn Greenwald.

Jack offers two responses to this passage. The first focuses on the normative premise of Kinsley’s review:

I think Kinsley is also wrong about the normative question of who should decide.  The government should not have the final say about which of its secrets is published. Government action undisclosable to the American public is presumptively illegitimate. We tolerate secrecy to some degree because it is necessary for national security.

This claim is problematic on both conceptual and empirical grounds.
Conceptually, the claim that secrecy is “presumptively illegitimate” implies that only transparency is legitimate in a democracy. Is this really true? As a conceptual matter a democratic society can surely authorize its representatives to keep secrets—what Dennis Thompson has termed democratic secrecy. For example, the American people surely want the President to keep nuclear launch codes secret. If so, then, in this case at least, secrecy is presumptively legitimate. Its legitimacy rests on the fact that it has democratic sanction. To be sure, libertarians like Snowden and Greenwald who value privacy and royalties above all else may continue to insist that secrecy is illegitimate, but democrats at least can safely discount such extreme views. Empirically, the claim that secrecy is “presumptively illegitimate” runs contrary to decisions, statements, and policies of generations past and present. As to the former, we need look no further than Stephen Knott’s Secret and Sanctioned, and Gabriel Schoenfeld’s Necessary Secrets, which show how much the Founders, including Thomas Jefferson, appreciated secrecy. Subsequent generations have clearly shared in the Founders’ assessment, as we can see from the precedents, executive orders, laws, and judicial decisions that have formalized the classification system. This contemporary history buttresses the democratic legitimacy of state secrecy. So far I have argued that secrecy should not be viewed as “presumptively illegitimate.” It is, however, undoubtedly the case, as Jack points out, that

secrecy runs the risk of getting out of control, and of fostering illegal or illegitimate action, or simply action that the American people does not approve of.

This brings us to the heart of the matter, and to what I think is actually Jack’s position, namely that secrecy may be illegitimate or at least questionable in particular instances. Jack highlights some instances, most notably the secrecy surrounding the use of distasteful interrogation practices. When such moments arise, who is to decide whether secrecy is truly justified? Citizens cannot decide, because they cannot pronounce on what they do not know. This is what makes leaks so valuable from a democratic perspective—they can alert citizens to potential wrongdoing. Yet, as Jack points out, and as Kinsley notes in his review, this check on secrecy is far from ideal because journalists are often “self-interested, myopic, under-informed, non-expert about national security, biased, prone to mistakes, and often motivated in their publication decisions by fame and profit.” These facts leave us confronting an uncomfortable paradox. As Jack writes,

So leaks of secrets will occur, and they are sometimes normatively appropriate.  But of course this necessary check on government leads to all sorts of problems.  For secrecy too is sometimes necessary and appropriate, and journalists sometimes, perhaps often, publish secrets that cause enormous harms that outweigh any conceivable benefit from the perspective of democratic governance.

There appears to be an obvious answer to this paradox. The government should take legal action against reporters and publishers, and allow the courts to decide when punishment is appropriate. Yet, as Jack points out, “the government, despite its huffing and puffing about leaks, has done very little, especially against journalists, to stop them.” Why? The constraint, according to Jack, is political in nature. The government does not punish the press because “the American People don’t want it to.” The root of the matter is that, Contra Kinsley, the Demos has effectively decided that some degree of leaks is necessary to the proper operation of secret government in endless war, even though the toleration of the leaks itself produces many harms. This claim gives away the store. I have two objections in particular. First, the government typically refrains from discussing the adverse consequences of rash leaks, as this may further harm the public interest. When the American public does not know what goes on the other side of the ledger, how can we say that it approves of the non-enforcement of the law prohibiting the publication of classified information? The public has long observed what Alexander Bickel termed an “unruly contest” between press and government, but whether this contest is desirable or not is too early to tell (to steal Mao’s well-known remark about the French Revolution). Second, and more directly, it is not clear to me that the passivity of the executive branch ought to be attributed to public opinion per se. Presidents do many unpopular things. Indeed they are meant to. Consider what Federalist 71 says on the subject There are some who would be inclined to regard the servile pliancy of the Executive to a prevailing current, either in the community or in the legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. Now, having read these stirring words, consider what would happen if the President were to authorize Greenwald’s prosecution. Instantly, a legion of First Amendment lawyers would offer their services pro bono, only too keen to be the next Floyd Abrams. A host of interest groups—the ACLU, CPJ, et al—would storm onto the scene, firing off press releases about the downfall of the American republic. A million headlines and ticker tapes would declare the President a tyrant, and a dozen or so foreign intelligence agencies would gleefully settle down to parse through the evidence submitted by the prosecution. Who wants the headache? The point, in short, is that the President’s hand is held back by much more than public opinion. There is a dense network of interest groups and media corporations that the President must contend with—all better organized and armed for war over public opinion. Presidents—hemmed in by their parties, fearful for their legacies, and concerned about the derailment of their agendas—are not well placed to engage in this battle. And so Presidents learn it is better to fold than fight someone who has Twitter followers in the millions. I have argued that the President’s unwillingness to prosecute reporters and publishers should not be construed as indicating that the executive branch thinks the American public supports leaking no matter the cost. Instead, it should be viewed as a prudent maneuver—in the way that it is prudent to let someone who has a loaded gun to your head help themselves to your watch and wallet. How then to answer the paradox discussed above? How to make it more likely that the American media will only publish those leaks that evidence serious wrongdoing (and will not publish leaks that simply fatten their bottom lines by stirring up profitable controversy)? I cannot address this question at length here (though I address it in my book Secrets and Leaks). Briefly, I think that rather than relying on the law, we should turn to civil society. The need of the hour is for a well-funded, bipartisan media watchdog—an Americans For Responsible Journalism—that will have the credibility and independence to challenge rash leaks, and to push back against irresponsible reporters and publishers by speaking directly to the public. It is time to shed uncomfortable light on those who like to shed uncomfortable light on others. This, it seems to me, is the only half plausible way to restore fairness to the “unruly contest” that Bickel mistakenly thought would be kept within bounds by the exercise of decent self-restraint.
Some responses: First, Rahul says that my “claim that secrecy is ‘presumptively illegitimate’ implies that only transparency is legitimate in a democracy.”  It implies no such thing; presumptively illegitimate does not mean always illegitimate.  Of course secrecy is often necessary and legitimate in national security – a point I have often made and that no one denies.  But in a constitutional democracy where the People ultimately rule, secrecy from the People is aberrant (for they cannot govern what they do not know), and it demands special justification (thus the presumption against its legitimacy).  The Framers that Rahul cites understood this point, which is why they devoted pages to secrecy’s special justification in certain contexts.  And modern politicians understand this point, which is why they have created special and elaborate rules to try to replicate transparency and checks and balances behind walls of secrecy. Second, I acknowledge that the President is held back in pursuing journalists not just by public opinion, but also by the powerful self-interested institutions that stir public opinion, including interest groups and media corporations.  I don’t share Rahul’s view of an enfeebled presidency cowering before these groups, however, and Rahul does not mention the very powerful interest groups on the other side of the ledger – giant national security bureaucracies, defense contractors, congressional committees, and the like – who pressure the President in support of secrecy. Third, I also don’t think that the “executive branch thinks the American public supports leaking no matter the cost.” (my emphasis).  There were varying degrees of outrage over leaks about SWIFT, wikileaks, the initial leaks of TSP, and the Snowden revelations.  But stepping back, the larger picture is this: Over the last dozen years we have witnessed unprecedented leaks of highly classified national security information.  Many of the leaks were unjustified, but many revealed behavior in the name of the American People that did not find approval, leading Congress to push back against the President in unprecedented ways.  The array of leaks, including the costly and irresponsible ones, has not led either Congress or the President to crack down on journalists.  To the contrary, the Executive branch has failed to prosecute a single journalist and has weakened its internal rules against seeking journalists’ sources, and there is a serious push in Congress, supported by the President, for a journalists’ shield law and no push to tighten criminal prohibitions on publication of national security secrets.  Rahul might be right that the explanation for this trend is the “loaded gun” that journalists and their corporate supporters have pointed at the heads of our political representatives.  I continue to think that the better explanation is that our representatives and the People they represent understand that in an age of endless war waged by an unprecedentedly large and secretive national security bureaucracy, journalists – with all of their foibles, biases, errors, and harms to national security – provide a vital democratic check that is, on balance, good for our democracy.  When President Obama said at his NDU speech that “a free press is also essential for our democracy,” and that he was “troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable,” I think he meant it, even if he does not always, or even usually, like the consequences. Let me emphasize “on balance” in the previous paragraph.  As I have argued many times, journalists cause harm, sometimes great harm.  So too, sometimes, do Executive officials who act in secret.  It would be nice to have a less messy system with fewer harms on both sides of the ledger, but that has been impossible to make work in practice, and I don’t see how it can.  Let me also emphasize that I do not believe the current equilibrium is set in stone.  I can imagine publication of leaks that causes direct perceptible harm that leads to a backlash by the People and the politicians against journalists.  This might happen, but even a serious backlash would not be terribly effective in light of the digitalization and globalization of media.  I think the weakening of norms about publishing national security information and punishing journalists is explained not just by the democratic virtues of leaks, but also by the fact that secrets are irreversibly much harder to keep.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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