Published by The Lawfare Institute
in Cooperation With
Published by The Lawfare Institute
I am struck by the circumspection of the American press in not revealing the name of the CIA Station Chief in Afghanistan whom the Obama Administration inadvertently disclosed over the weekend. That name will surely come out, if it hasn’t already. But the episode made me wonder why the press appears to follow old norms regarding non-publication of covert operatives even when while they daily publish the nation’s deepest secrets about surveillance capabilities against foreign adversaries. Why the different practice in the two contexts? (To be fair, I think the norms about publishing names has weakened since 9/11, but not to nearly the same degree as the norms about communications intelligence.) The answer is not the law. If anything, the law more clearly prohibits publication of means and methods of communications intelligence than it does publication of the identities of covert operatives. I also don’t think the answer is that one disclosure serves the need for public deliberation in a democracy more than the other. Cyber-operations against the Chinese and U.S. operations in Afghanistan are both hot-button issues of public concern. I believe the answer is that journalists still tell themselves that they will not publish a secret that, as Bart Gellman put it in a 2003 lecture (not on-line), “puts lives at concrete and immediate risk.” And publishing the name of a covert operative may appear to put a life at concrete and immediate risk more obviously than publication of a method of infiltrating a communications system. It is interesting that Gellman – who represents mainstream elite journalistic opinion on this matter – included in his 2003 list of too-risky disclosures not just the “names of clandestine agents,” but also “technical details that would enable defeat of U.S. weapons or defenses.” I think it is fair to say that eleven years later, and post-Snowden, technical details concerning communications intelligence operations related to U.S. weapons or defenses are no longer considered remotely unpublishable. I expect that journalists today would argue that such disclosures do not put lives at concrete and immediate risk. (Interestingly, Greenwald reports in his new book that Snowden balked at disclosing CIA secrets even while he happily disclosed NSA ones. “‘When you leak the CIA’s secrets, you can harm people,’ [Snowden] said, referring to covert agents and informants. ‘I wasn’t willing to do that. But when you leak the NSA’s secrets, you only harm abusive systems. I was much more comfortable with that.’”) Let us concede for purposes of argument that Snowden-like revelations do not cause concrete and immediate risk to lives. The real question is: Why privilege “concrete and immediate risk” to lives over diffuse and indirect risk to lives? The harms to lives from disclosing communications secrets are harder to see because they are usually diffuse and probabilistic rather than concrete and immediate. But they are no less real. This is obviously true when the communications secrets are tied to ongoing military operations (and such secrets have indeed been disclosed recently). It is also true, for example, to the extent that the United States loses an intelligence advantage that would have helped foil a terrorist attack. And it is also true, more diffusely, in the thousands of ways that our surveillance superiority undergirds our successful national defenses. Moreover, publication of communications surveillance secrets concretely and immediately affects the agents and firms involved in intelligence operations to the extent that these actors quite rationally are less likely to cooperate with a U.S. government next time, with the attendant harms to national security that such chilling brings. These harms are real even though they are hard to discern at the time of publication. Indeed, while it is impossible to prove, it is almost certainly true that several surveillance disclosures have harmed more lives in concrete ways than the disclosure of the Afghan Station Chief would have. The media’s resistance to taking into account this form of diffuse harm from publication is ironic. Reporters fiercely protect their sources precisely because they know that revelation of a source destroys the reporter’s future credibility for keeping promises and discourages new sources from coming forward. But they reject this logic when the government makes the same argument.
Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. 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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