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Why Kinsley is Wrong About the Connection Between Democracy and the Publication of National Security Secrets

Jack Goldsmith
Wednesday, May 28, 2014, 9:18 AM
Michael Kinsley, in his review of Glenn Greenwald’s book, made the following claims about leaks of national security secrets:
The question is who decides.

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Michael Kinsley, in his review of Glenn Greenwald’s book, made the following claims about leaks of national security secrets:
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.
I disagree with Kinsley, as both a descriptive matter and a normative matter.. As a descriptive matter, the press does effectively have the final say over the publication of U.S. national security secrets.  The only constraints are the weak ones of marketplace (the NYT was widely criticized for publication of the SWIFT story) and even weaker (and weakening) legal constraints in practice.  We have been moving toward this system of journalistic hegemony for a while, and the trend has been exacerbated by digital technology and the globalization of media.  The government has enormous control over its secrets – it creates them, it stores them, it decides how widely they are disseminated behind walls of secrecy, it can punish its employees for mishandling secrets, it can create secrecy defenses, and the like.  But once a secret is out, the fact is that the press – or, more accurately, whoever holds the secret outside the government – decides whether to publish. 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.  But such 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.  The government, like all institutions, is imperfect – self-interested, myopic, under-informed, biased, prone to mistakes, motivated by glory and power, and the like.  If the government had the final say on its secrets, it could define the world of secrecy as broadly as it wanted, in a self-serving way, and shield its actions from a democratic (and judicial) check – an especially dangerous prospect during endless war where the claims of secrecy are greater. But if the government cannot have the final say, who does?  The essential problem is that journalists (like all individuals and institutions) are biased too.  They are 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.  Kinsley makes this point (and to my astonishment, many journalists, including, apparently, Greenwald, do not see it – I am always amazed that journalists who insist on the need for a robust press to expose the folly of the self-serving institutions are blind to their own self-serving interests.)  Kinsley thinks that between the self-serving government and self-serving journalists, the government, supported by the People, should have the final say. One problem with Kinsley’s conclusion is that it pushes to government absolutism on secrets in the name of Democracy, and yet the People cannot judge its government’s secret actions.  Yes, the People have approved through law a system of checks and balances behind the wall of secrecy, but that does not suffice.  Many leaks over the past decade – on interrogations, drones, and surveillance, for example – have led the People to alter the course of government action.  If the government had the final say, these and dozens of other reforms and corrections never could have occurred.  Especially in an era of endless war, the government should not decide as a final matter what the People know. 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. How to resolve this paradox?  The answer, I think, lies in two simple propositions: (1) The government could do much, much more to protect secrets, including cracking down harder on journalists, but (2) it doesn’t do so because the American People don’t want it to. As noted above, the government still has enormous control over how secrets are made and protected.  It could create many fewer secrets, and it could protect them better.  It doesn’t do so in part because it sometimes benefits from the porous secrecy system.  But even while it benefits from the system, the government could in theory crack down much harder, not just on leakers, but also on the press.  First Amendment precedents permit punishment of journalists for publication of national security secrets and allow the government great leeway in forcing journalists, on penalty of contempt, to reveal their sources.  So much is true in theory.  But in practice, legal and political norms are making it harder and harder for the government to punish journalists in these ways for disclosing secrets.   The examples are too numerous to list, but consider these few, which come in the face of massive and unprecedented leaks during the last decade, and especially in the last year: The government dare not prosecute Greenwald and others for clear violations of 18 USC 798; just this morning we learn that the Attorney General likely won’t have James Risen cited for contempt for not disclosing his sources; the Attorney General has backed down against journalists in other contexts; and Congress has done nothing to make it easier for the executive branch to pursue the press, and has been threatening a Shield Law for a while. In short, the government, despite its huffing and puffing about leaks, has done very little, especially against journalists, to stop them.  To the contrary, it has largely tolerated the massive leaks of the past decade, including the massive Snowden leaks.  As I wrote in Power and Constraint:
Underlying this persistent restraint is a recognition—based in part on politics and in part on a powerful constitutional tradition—that press coverage of secret executive branch action serves a vital function in American democracy, even though the press often miscalculates the harm of publishing secrets and thus often harms national security. “Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press,” said Madison. “It has accordingly been decided . . . that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigor of those yielding the proper fruits.”  Madison did not have publication of national security secrets in mind, but his reasoning applies to the issue.  It is no accident that, as [former Washington Post editor Marcus] Brauchli notes, the nation with the largest and most powerful military and intelligence services in the world is also the nation that, by a large margin, gives its media the freest reins in discovering and publishing classified secrets. There is in theory room to tighten these reins. But the United States has basically decided that a self-serving and institutionally biased media which pursues and publishes government secrets that sometimes harm national security achieves important accountability benefits that on balance outweigh the harms to national security.
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.  The government could change the system, it could do more against journalists, but right now all the evidence is that the government does not think it has political support for such a crackdown.  Kinsley might not accept this.  He might be arguing that the equilibrium should be changed.  But it is he who is out of step with the People on that question, at least right now.

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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