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Right of Privacy

National security meets the culture of modern journalism.

May 31, 2010, Vol. 15, No. 35 • By GARY SCHMITT
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Of course, as Schoenfeld takes care to point out, the media are aided and abetted in breaking the veil of government secrecy by those inside the government willing to leak such information. And this is not a new problem. From the beginning the government has had problems keeping things secret. Early, famous leakers included Thomas Paine and James Monroe. And perhaps the most famous leaker of all was Herbert Yardley, the onetime government code-breaker who detailed his prior success in unlocking Japanese ciphers after World War I in a series of magazine articles and then a book, with the result that the Japanese upgraded the security of their systems, leaving us blind to Japanese plans for attacking Pearl Harbor. 

Yet by all accounts the problem of leaks has grown considerably in recent years which, when combined with the press’s own predilection to run a story unless the government can conclusively show that doing so puts lives directly in jeopardy, means we have, as Schoenfeld spells out, created a dangerous dynamic.

It would be wrong, however, to leave the impression that Necessary Secrets is some diatribe against modern journalistic practices. Schoenfeld fully understands that there are costs to government secrecy in the quality of our democratic deliberations. Moreover, Necessary Secrets provides a nuanced, balanced account of the applicable laws and cases that have arisen from the government’s relatively rare efforts (and even rarer successful efforts) to prosecute anyone for breaking their secrecy pledges or publishing material that violates espionage laws. 

Although existing laws could be refined to better deal with this problem, Necessary Secrets suggests that the statutes we do have, combined with court precedents, are generally sufficient. But administration after administration has been reluctant to use them—or as Schoenfeld concludes from his review of recent history, to use them wisely. For reasons that are obvious but not satisfactory, the government has found it easier to target isolated individuals, such as Steven Rosen and Keith Weissman in the AIPAC case, than to tackle a media giant, such as the New York Times: this, despite the fact that a stronger case could be made that the Times, in publishing its stories on the intercept programs, was running more seriously afoul of the law than either Rosen or Weissman, and its actions were more damaging. 

Allowing the press to use the First Amendment as a Get Out of Jail card is, as this thoughtful book makes clear, a recipe for ensuring that keeping real secrets—necessary secrets—will only grow increasingly difficult.

Gary Schmitt is director of the program on advanced strategic studies at the American Enterprise Institute.

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