Gabriel Schoenfeld Responds to Lederman and Vladeck

I thank both Steve Vladeck and Marty Lederman for commenting on my post, a post that was drawn from a longer article, Journalism or Espionage? just published in the fall issue of National Affairs.

The publication of leaks of national-security secrets brings two constitutionally enshrined values into conflict. On one side is the First Amendment and a free press that enables us to have uninhibited, robust and wide-open debate about the direction of our country. On the other side is the necessity of providing for our common defense. A free press that publishes leaked government secrets can provide us with vital information about wrongdoing by our government. A free press that publishes leaked government secrets can also get Americans killed—and in large numbers. Balancing openness with the imperatives of national security is a perpetual challenge.

My view is that the balance has shifted to a point where secrets are being disclosed by the press without sufficient regard for the danger in which they place the public. For someone whom I regard as a careful thinker, Steve Vladeck is disappointingly careless in attributing to me views I do not hold. I never said that “protecting national security secrets is the paramount public interest,” a point of view that he attributes to me without foundation. My view is more conventional: it is simply that we need to find a better equilibrium, remaining an open society but not so open that, on account of an inability to stanch the flow of necessary secrets, we succumb to terrorist attacks or suffer major national-security setbacks.

Steve then attributes to me yet another idea to which I do not subscribe. “Gabe,” he writes, “seems to believe that the fact that particular activity is prohibited by the Espionage Act necessarily makes it ‘espionage.’” This is silly. I could not have been more explicit in my article when I wrote that “though ‘espionage’ is in its title, the [Espionage Act] includes provisions dealing with lesser transgressions,” and I then went to discuss leaking and retention of leaked secrets as among those lesser transgressions. Misrepresenting me rather baldly, Steve then draws a number of equally silly conclusions that supposedly follow from my alleged belief that journalists who violate the espionage statutes are “spies.”

While pursuing me for something I didn’t write, Steve evades answering the central question I tried to raise: namely, how to appraise Fox News reporter James Rosen for soliciting classified information from a highly cleared U.S. government official, communicating with that official by surreptitious means, obtaining highly classified information from that official, and then publishing it on the Internet, including portions that potentially put CIA human sources at risk? It was that behavior that led the FBI to conclude that Rosen was “an aider and abettor and/or co-conspirator” in a plot to violate the Espionage Act.

The issue is not whether Rosen was engaging in espionage. Clearly, he wasn’t. But was he engaging in some other crime and if he was, does he have First Amendment protection for what he was doing? Apart from the legal issues, one might also ask whether Rosen’s conduct was wise, a good model for the conduct of national-security journalism. Steve never discusses any of this. Instead, he arrives at the unremarkable conclusion that the First Amendment does not confer an absolute right to publish national security information, but rather a qualified one.” Does anyone disagree with that banality? I certainly don’t. But that tells us little about the particular facts of the Rosen case.

Marty Lederman indulges in some of the same silliness as Vladeck, using sarcasm and misattribution to have me appear as someone who believes that American journalism is a nest of “spies.” He also has me proffering the “fevered suggestion” that the Rosen case signals an “ominous” new phase in the government’s crackdown on leaking, which will lead to the prosecution of journalists.

All this led me to smile. It is journalists themselves—and their defenders in the legal community—who have been painting the truly “ominous” picture. As I noted in my article, in response to the Rosen affidavit the New York Times editorialized that the administration was doing nothing less than “threatening [the] fundamental freedoms of the press to gather news.” The Washington Post‘s Dana Milbank declared that “treat[ing] a reporter as a criminal for doing his job — seeking out information the government doesn’t want made public — deprives Americans of the First Amendment freedom on which all other constitutional rights are based.” The Reporters Committee for Freedom of the Press called the administration’s actions “extremely troubling.” Jonathan Tobin of Commentary sees in the affidavit an “attempt by the Department of Justice to eviscerate the First Amendment.”

That’s what I would call “fevered.”

In any event, Lederman has a more serious argument to make, and I found myself agreeing with some portions of it. He states that the government’s historical unwillingness to employ the espionage statutes, including the Comint Act (18 U.S.C. 798) with its easygoing intent provisions, “is striking evidence of just how unthinkable it is in our present culture even to consider prosecuting journalists for publishing leaked national security information.” Lederman gets the date of the Comint Act wrong; it was enacted in 1950, not 1951, but he is certainly right that it has never been employed against the press, notwithstanding a wealth of opportunities. He says that we “we have as a legal and political culture settled upon a rough consensus that criminal prosecution of the press is not the ideal response” to the publication of national defense material.

That’s true; there has been such a consensus. But a consensus can change. In this particular realm, our legal and political culture already has changed—dramatically and with astonishing speed. Barack Obama is a former constitutional law professor who came into office professing devotion to maximum transparency in government. No one anywhere ever expected that this most liberal president in a generation would engage in a draconian crackdown on leaking. Yet that is precisely what has occurred.

The Obama administration has already launched eight prosecutions (more than double all previous presidents) , turned the offense of leaking (in the case of Bradley Manning ) into the capital crime of aiding the enemy, and employed remarkably aggressive methods against the press itself in the effort to ferret out leakers. All this was “unthinkable” five years ago, yet it has happened. Evidently there is also today a sitting grand jury investigating Julian Assange and WikiLeaks that, according to the Washington Post, may have already filed sealed indictments. In any sensible First Amendment analysis Julian Assange is a journalist and WikiLeaks is a journalistic organization. For better or for worse, Lederman’s contentions about the invulnerability of the press from prosecution are perilously close to being proven wrong.

There are forces propelling further change. One of them is irresponsible behavior by the press itself. In publishing government secrets that place the public at risk the press is eroding its own already low standing in opinion polls. Prosecutorial restraint in the face of increasingly serious provocations may erode along with it. Collaborating with renegade NSA contractor Edward Snowden to distribute his stolen wares, some members of the press have been pushing the envelope of the acceptable. The employment of novel newsgathering techniques, like the use of codes and aliases by journalists as they communicate with highly cleared government officials, brings us closer to the tipping point.

The Rosen case is another landmark in this process. It is indisputable, of course, as Lederman points out, that in dealing with his State Department sources, Rosen used rather primitive tools. “Such Paul Revere tradecraft,” writes Lederman, “is, to say the least, a far cry from providing a government source with unbreakable encryption.” But what Lederman fails to say is that Glenn Greenwald was communicating with Snowden using high level encryption software. And under Lederman’s analysis—and this is where his reasoning reaches the point of absurdity—that’s just fine, too.

We now have a “more robust appreciation,” Lederman writes, “of the substantial value of leaving the press free to make its own judgments of when the public would be well-served by publication of leaked information.” But we have to ask: what exactly is the “press” these days? It comprises all sorts of players and characters, Americans and foreigners alike. Some of them are admirable and have good judgment. Some of them are not admirable and are out to injure the United States. Is there a “substantial value” in leaving a member of the press like Glenn Greenwald—now entrusted by Snowden with an enormous archive of top secret U.S. intelligence documents—free to make his own judgments about which counterterrorism techniques employed by our government are to remain secret? Lederman evidently thinks the public is well served by giving Greenwald such discretion. I do not think so and I doubt I am alone. 

About the Author(s)

Gabriel Schoenfeld

Senior Fellow at the Hudson Institute in Washington, DC., Senior Adviser to the Mitt Romney for President Campaign Follow him on Twitter (@gabeschoenfeld).