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The Drake Affair

Correcting the record.

11:25 AM, Jun 12, 2010 • By GABRIEL SCHOENFELD
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Obama Takes a Hard Line Against Leaks to Press” is the headline in the New York Times this morning. The piece by Scott Shane reprises the case of Thomas Drake, who has been charged under the Espionage Act of 1917 for passing secrets from the National Security Agency to the Baltimore Sun.

Shane sees the Drake affair as “the latest evidence that the Obama administration is proving more aggressive than the Bush administration in seeking to punish unauthorized leaks,” and I think he’s right. This may well be a case of a Nixon going to China, a president using his position on one end of the political spectrum to accomplish something ideologically unexpected.

President Obama is not the first president to feel his hands have been tied by unauthorized disclosures of classified information. And the leaks he has contended with thus far have not been nearly as damaging to national security as those suffered by his predecessor, George W. Bush. But there is nonetheless an emerging consensus, bringing together the executive branch and Congress, that the ability of our intelligence services to keep secrets has collapsed. Hence the wave of prosecutions launched by the Obama administration and detailed by Shane. 

Shane quotes me in his article as follows:

Gabriel Schoenfeld, author of “Necessary Secrets,” a book proposing criminal penalties not just for leakers but for journalists who print classified material, said that whatever his intentions, Mr. Drake must be punished.

“The system is plagued by leaks,” said Mr. Schoenfeld, a senior fellow at the Hudson Institute, a conservative research organization. “When you catch someone, you should make an example of them.”

I do indeed believe that our ability to keep secrets is vital to our national defense, and that the integrity of our secrecy system has broken down in recent years and needs to be restored by vigorous prosecutions. That said, I don’t believe, as Shane paraphrases me, that “whatever his intentions” Thomas Drake should be punished. Before that should happen, Drake first needs to be found guilty in a court of law.

As for the proper punishment for an alleged leaker like Drake, one hopes it would be commensurate with the damage done. If all Drake did was expose wrongdoing or malfeasance inside the National Security Agency, as the New York Times suggests, a proper sentence might be a fine, which the law provides, and which would make it plain that leaking classified information to the press, no matter one’s motives, is still a crime. If Drake truly compromised national security, as the government contends, he deserves hard time.  

Gabriel Schoenfeld is the author of Necessary Secrets: National Security, the Media, and the Rule of Law.

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