The good news today is that President Trump amended last week’s declaration that “the FAKE news media” are “the enemy of the American People!” He reprised the attack word for word at the Conservative Political Action Conference, but he added that he meant only “the fake news media or press.” The bad news is that he uses that term to describe, in their entirety, the Washington Post, New York Times, and Wall Street Journal, the three commercial broadcast news networks, and every cable news network but Fox.
Trump’s riff on leaks and anonymous sources took a darker turn today. Already last week he had asked the Justice Department to investigate “criminal leaks” from the intelligence community, a standard practice (except for the part where the president gives marching orders to law enforcement about stories he does not like). “The real scandal here is that classified information is illegally given out by ‘intelligence’ like candy,” Trump tweeted. His ongoing and frequent outbursts against news organizations blended contradictory themes: the leaks are false, the disclosures do damage; the sources don’t exist, the sources should be hunted down; “we’re going to do something about” false news reports, and nobody loves the First Amendment “better than me.” A year ago, candidate Trump said he would like to “open up libel laws.” Today, whether you take him literally or seriously, he crossed a new boundary. News media “shouldn’t be allowed to use sources unless they use somebody’s name,” he said at CPAC, and he made no effort to disguise his intent. “You will see stories dry up like you’ve never seen before,” he said.
I want to talk about hard cases in the world of leaks, and I take them up below. But first I will allow myself one long paragraph about the easy ones. If the president’s tweets are policy, as Steve Bannon told CPAC Thursday, Trump has escalated from disparagement to a call for prior restraint, the most extreme form of encroachment on free expression. Though truth is no requirement for First Amendment protection, it is worth noting that Trump’s reaction, in practice, all but vouches for the stories that sting him most: his Twitter reflex, declaring news as “FAKE!” but nonetheless apt to “have a devastating effect on U.S.,” has turned out to be a pretty good proxy for confirmation. Every journalist makes mistakes, but for the most part events have supported the stories that the president singled out. The Washington Post and New York Times reported that National Security Adviser Michael Flynn lied about his Russian contacts, and Flynn was obliged to resign. Trump himself, meanwhile, has been a prolific anonymous source since the 1980s, rivaling Henry Kissinger and other giants in the field. I am no longer employed as a journalist, but I hear enough to say that Trump’s senior staff follows that lead. A day seldom passes without anonymous interviews granted by Steve Bannon, Reince Priebus, or Jared Kushner. (Yes, I just used anonymous sources to expose anonymous sources. Sometimes there is no other way to let the public in on the joke.) Not all the most embarrassing disclosures, by the way, are sourced to U.S. government officials. The coarse misogyny revealed in October’s release of Trump’s “Access Hollywood” tape could only have come from Hollywood or New York. Accounts of his unhinged telephone calls with Mexican and Australian leaders originated with the latter. Nor are all the most damaging sources anonymous: Ambassador Sergey Kislyak and other named Russian officials have publicly contradicted the Trump administration, and Rumana Ahmed is the latest NSC staff member to speak on the record about White House bigotry and disarray. Even in the spheres of national security and law enforcement, unauthorized disclosures are seldom illegal on their face. (I commend this recent analysis in Lawfare and the magisterial treatise by Columbia Law School’s David Pozen.) No plausible damage to national security is apparent in the leaks that Trump has most heatedly condemned. FBI Director James Comey briefed Trump about an unconfirmed report of his corrupt links to Russia, and Director of National Intelligence James R. Clapper made a point of saying publicly that the intelligence community took no position on whether the report was true or false. The president’s chief of staff asked the FBI’s deputy director to tell reporters—yes, ahem, anonymously—that there was no truth in another story about the Russia investigation. These stories and others like them did no harm to the investigations themselves. The secrets they exposed concerned the president, his aides, and their fitness for positions of trust.
Here is where the easy part comes to an end. Some unauthorized disclosures do touch on classified information, and some classified information is damaging if disclosed. You are free to decide whether my role in the Edward Snowden stories is a credit or discredit to my views on the subject. In 2003 and 2004, I gave a pair of lectures at Princeton on secrecy, security, and democratic accountability. They are available in full here and here.
My central theme, then and now, is that hard questions about government secrecy involve a clash of core values. Call them self-preservation and self-government. Life and death stakes make it easy to see the vital need to deny advantage to an enemy. But the same stakes give equal urgency to the project of holding our leaders accountable for their use of power. Both interests reach peak importance in time of war.
I began the first talk with a story about the hunt for weapons of mass destruction in Iraq, where I shadowed a U.S. military task force for the Washington Post on May 1, 2003.
The team gathered up its gear—sledgehammer, flame spectrometer, pathogen assay kit. We drove to a walled compound that the Defense Intelligence Agency called “Possible SSO Facility Al Hayat”—SSO being Saddam Hussein’s Special Security Organization. U.S. Central Command ranked the site 26th of 90 top prospects for weapons of mass destruction. I watched the search team test for booby traps, scan for chemicals, cut through locks, and move by flashlight through a darkened corridor, lined with steel doors. The demolition guy broke through to the innermost chamber. And before our eyes there stood a cache—of vacuum cleaners….
Vacuum cleaners will take us soon to questions about secrecy, but a little context first. Site 26 produced much the same result as sites 1 through 25 and 27 through 90. Since I am here to talk about tensions between self-government and secrecy in the cause of national defense, I’d suggest that if you wish to assess the U.S. government’s motive for and conduct of the war, you might think it relevant that there were no weapons in 90 of the top 90 suspected weapons sites.
Relevant or not, the public had not been let in on this story.
Everything I told you about [Site 26]—that it was 26 on the priority list, that there were 90 on the list, the date and location of the search, the connection to the SSO and, yes, the vacuum cleaners—every bit of that is classified secret.
On another day, the survey team seized a suspicious document, handwritten in Arabic and illustrated with sketches of laboratory glass.
The document turned out to be a high school science exercise. The survey team’s report was classified. The school-book exercise was appended to that report—which means that some Iraqi teenager’s description of Boyle’s Law is a classified U.S. government secret. A qualified authority made a binding judgment that disclosure of this text would do “serious damage to national security.” So don’t ask me about the relationship between the pressure and volume of a gas held at constant temperature. I’d tell you, but I’d have to kill you.
All that classified information, and I put it in print. How could I justify that?
I do not need you to believe that governments measure wrongly the risks of disclosure, or that publication of secrets does no harm, or that any particular story is essential to public debate. What I want to consider is how to navigate disputes over national security secrecy and who gets to hold the rudder. And my answer, or part of it, is that government is incompetent to do so on its own. By incompetent, I do not mean unskilled. I mean that government has no legitimate claim to sole control of secrecy decisions, even on matters of common defense.
If not the president, who?
Is there anyone with a legitimate claim to balance [the conflicting interests]? A long list of incompetents comes to mind. Suppose we begin with me. I am not qualified to assess harms to national security. Don’t tell my editors, but they aren’t either. Our newsroom, in truth, has some relevant expertise and experience. But we are not trained to weigh the risks, and we are not responsible to anyone for the consequences.
The trouble was that no other institution, even in principle, could be trusted with this responsibility. After a long survey of Congress, courts, inspectors general, and so on, I concluded that “there can be no institution qualified to exert binding power over both the imperative interests at stake.”
By now I have painted myself deep in a corner… I have posed a question, declared its cosmic importance and found no one competent to resolve it. Welcome to my corner. I believe we are standing in it together.
In the end, I found myself making an argument for what then could be described as the status quo. It bore some resemblance to Adam Smith on market forces. There were complex and competing systems at work in regulating information.
In practice today, the flow of information is regulated by a process of struggle. The government tries to keep its secrets, and people like me try to find them out. Intermediaries, with a variety of motives, perform the arbitrage. No one effectively exerts coercive authority at the boundary. And that’s a good thing.
This description, which applied at least since the Vietnam War and Watergate, depended far more on norms than they did on law.
There are formal and informal structures that keep this system in equilibrium.
The letter and practice of law enforcement make it difficult, but not enormously dangerous, to broach secrets in print. That is a fine balance, and the status quo I’m about to describe depends on it.
Those with lawful access to classified information are forbidden by contract to disclose it. They face loss of their jobs and civil penalties, and there are available—though seldom-employed—theories of criminal prosecution for theft, conversion of government property or even espionage. A government official needs a very good reason to take these risks.
Having found such an official, reporters and their publishers incur little risk themselves. No law on its face, and unambiguously, forbids me to possess or publish a government secret. A novel interpretation of espionage might be offered—I’ll thank Woodrow Wilson for that if it happens—but no Attorney General has felt provoked enough to try.
The U.S. government’s tolerance for leaks was anomalous, in a good way, among nations.
It is surely possible for a government to work harder than this to suppress its secrets. If we look overseas, most do. Every White House would prefer a tighter grip on its secrets. But on balance, at the systemic level, the behavior of recent presidents implies a tacit belief that such a grip cannot be had at acceptable cost.
That underlying belief and practice, with modest exceptions, was shared by every president from Kennedy to Obama. Even Nixon had to respect the consensus, when the question arose publicly. We now have a president who is avowedly hostile to historic governing norms. What will come of that for journalism and public debate bears close watch.