Deep State

by Marc Ambinder

  It should be noted that WikiLeaks allegedly came into possession of several hundred classified files from Guantánamo Bay, Cuba, by way of Bradley Manning.6 In an effort to discredit U.S. detention policies, it released a series of prisoner reports in May 2011. Ironically, one of these reports suggested that enhanced interrogation techniques provided a crucial “dot” connecting Osama bin Laden’s preferred method of communication (courier) to his whereabouts (Abbottabad).7

  The secrecy apparatus blocks daylight by design and therefore resists oversight and reform. Since Vietnam and Watergate, journalists have taken the position that they are institutionally compelled to force the issue. They are merely exercising their constitutionally protected First Amendment rights. The government cannot abridge speech rights unless there is a compelling reason to do so. Protecting national security information fits that criterion, and there is ample precedent for the executive branch to: (1) arrest people who use their speech to incite immediate violence; (2) forbid journalists who are embedded with U.S. troops from exposing the locations of those troops; (3) arrest people who provide classified information to a foreign government or an enemy of the state for the purposes of harming the state; and (4) prevent people who have signed nondisclosure agreements from publishing information about their work without a review by higher authorities.

  Beyond those activities, however, there seems to be a bright red line. In general, people can say whatever they want, so long as it is true, and especially if it relates to “government affairs,” as stated by the U.S. Supreme Court in Mills v. Alabama (1966). Importantly, this is not a right guaranteed only to the press. Courts have gone out of their way to deny that the press has any inherent right to exercise any more power than any other citizen. The difference, until relatively recently, is that the press has been the only entity with enough resources to compete with the government for access to national security information, while rarely being punished for doing so.8

  Because the press and (for the most part) the press alone has this ability, it has developed into an informal privilege with its own boundaries and checks. The Supreme Court has even granted protection to something called “routine newsgathering,” and has implied that journalists cannot be punished for engaging in the practice. This is why it is difficult to argue that if someone passes a stolen classified document to a journalist, the journalist should be prosecuted for theft.

  Before publishing leaks—and classified material that appears in the press is usually the result of a leak by some official sworn to secrecy—responsible journalists try to balance the potential harm to national security against the public interest. Responsible journalism holds powerful interests to account, according to professors at journalism schools. Indeed, in many (but not all) instances, the “powerful interests” use the press as a mechanism to self-regulate.

  A result of the WikiLeaks diplomatic cable release is that we have some idea of the gap between what we think and what we know. It’s not so wide as anyone thought, or so malevolent. Accordingly, it would seem that most secrets are neither worthwhile nor particularly newsworthy and would rarely catch a second glance of a reader. In aggregate, foreign intelligence services obviously have a shot at puzzling out American motives and enterprises. But again, even when a thick slice of American secrecy is presented in its entirety (as was the case with WikiLeaks), our activities abroad are sometimes curious and surprising but rarely shocking. (Indeed, the most shocking revelations of WikiLeaks were the actions of other “hostile” governments, and their private cooperation and seeming friendliness with our own.)

  As WikiLeaks demonstrated, the secret actions of the United States hardly muster general outrage or unrest. Even in the case of the National Security Agency and the terrorist surveillance program, the act of revelation by the press tends to provoke greater consternation than the programs and activities themselves.

  Who decides (ultimately) where the boundary line must be drawn? In practice, as we shall see, journalists do. But who decides who, exactly, is a journalist?

  When handling sensitive material, it falls to the journalist to follow lines of information from confirmed sources to the real-world consequences of publication, and, from the information gathered, determine the nature of that information. Investigative reporting of the secrecy apparatus is not unlike the work of intelligence analysts. It involves assembling a jigsaw puzzle while blindfolded, with little clue as to the puzzle’s size and with thousands of extra pieces scattered about. Accordingly, journalists make decisions of astonishing import with little personal danger.

  When Dana Priest reported, for example, the secret “Salt Pit” facility in Afghanistan, where a detainee was slain, buried, and erased from the books as a result of enhanced interrogation techniques, she exposed the American war machine at its worst and forced corrections (one hopes) to prevent future such atrocities. Another Priest article—a 2005 report in the Washington Post that exposed the locations of terrorist detention cells around the world—is less black and white. The white: the government was torturing people in our name, for little apparent benefit. The world was now aware of such prisons, and terrorist cells gained little material advantage (but, perhaps, for new targets). The black: this information undermined cooperating governments whose citizens are hostile to the “American Imperium,” and endangered carefully orchestrated diplomatic partnerships, to say nothing of the soldiers and agents in the field.

  In the past, it might have been worth debating if it was ethical of Priest to reveal both programs. That’s still a worthwhile question for journalism classes and editorial meetings, but the truth is, if a leaker wants something out, he no longer needs Dana Priest or the Washington Post to alert the world. The Internet has moved the power and the ethical focus to the leakers themselves.

  When the threat is still active, journalists are most obliged to act with an excessive degree of restraint. On the front page of the New York Times on December 16, 2005, in an exposé headlined, “Bush Lets U.S. Spy on Callers without Courts,” reporters James Risen and Eric Lichtblau published the details of a Top Secret program in which the National Security Agency could monitor al-Qaeda telephone conversations without first arguing the wiretaps before federal judges. The entire program will be discussed later in this book. In short, the president authorized the Terrorist Surveillance Program in the post-9/11 bedlam. Expediency was key, as the terrorist organization was fast on the move and savvy to electronic communications. The laws in force at the time were antiquated at best, written thirty years before, when people still rented rotary telephones from the phone company and secrecy was essential for the program’s success. The White House did not act unilaterally; congressional leaders had been briefed on the program’s operational details no fewer than twelve times, as had the presiding judge of the Foreign Intelligence Surveillance Court.

  Here, the New York Times ran presses at the expense of national security and alerted an active and agile enemy to an effective and efficient program. In Commentary, Gabriel Schoenfeld argued:

  If information about the NSA program had been quietly conveyed to an al-Qaeda operative on a microdot, or on paper with invisible ink, there can be no doubt that the episode would have been treated by the government as a cut-and-dried case of espionage. Publishing it for the world to read, the Times has accomplished the same end while at the same time congratulating itself for bravely defending the First Amendment and thereby protecting us—from, presumably, ourselves.9

  Are these really two equivalent actions? It matters that the government employees leaked this to a newspaper because they thought the government was behaving unethically, and not to enemy agents for a paycheck. It matters that the reporters in question were informing the public of something a sizable portion of citizens would want stopped immediately.

  The Times withheld details about the project at the government’s request. It didn’t publish what it knew for a year and then did so only because the report’s author planned to publish a book
with the revelations. But national security harm is national security harm, and the leakers and the journalists decided the ethical breach was more important than national security.

  There is no independent arbiter here; the courts seem to be very reluctant to allow the executive branch’s formal classification powers to be the final word on national security harm.10 Basically, they want the tension to exist and work itself out.

  The intent of the leaker can be very difficult to determine, because it’s rarely as cut and dried as Bradley Manning handing documents over to WikiLeaks. Often, the person transmitting the information will not tell the journalist that it is classified and will often, if passing a piece of paper or an e-mail, redact information that would identify its provenance. A great deal of classified information is transmitted to journalists thirdhand.

  A person, for example, with knowledge of a particular U.S. cyber defense program discusses an issue with a government consultant who is cleared to the level at which the program is classified but is not fully aware of the dimensions of the program. The consultant, who works at a public think tank, then engages with a journalist who is writing about cyber security and mentions some aspect of the program, though not nearly enough for the journalist to have a complete story. But the journalist, wise to the beat, starts to dig around, gathers up other clues, makes rational assumptions based on the probability of certain things being true, and soon he or she has a nearly complete and fairly accurate sketch of a classified program.

  You may protest that this scenario is unlikely or hypothetical, but journalists in Washington and policy makers with security clearances will recognize it as the germ of just about every enterprising national security story. At some point in the process, the journalist becomes pretty sure he or she has acquired information that is classified but has no way of knowing for sure. The consultant, while not blameless, was not intending to transmit classified information. The person who discussed the program with the consultant—the original “leaker”—is almost completely blameless.

  The journalist then calls other policy officials and says, “Aha! I have in my hand information about a program I think is sensitive. Yes I do! I’m bragging about it. So tell me what I should do about it.” Or the journalist publishes the information and admits that he or she has obtained or been given access to classified information. The executive branch can huff and puff, but it has not found a way to establish a standard by which the journalist ought to be subject to prosecution. Instead, officials take the easier route: they try and figure out who the sources are and try to clamp down on the supply of secrets in the middle of the chain. But as we will see, successful leak prosecutions are rare. And the idea that they have a chilling effect on speech itself is not very well formed precisely because the secret keepers are inherently at a disadvantage.

  In a remarkable amicus brief filed in the case of two employees of the American Israel Public Affairs Committee (AIPAC) accused of mishandling classified information given to them by a Department of Defense employee, six lawyers—including Viet Dinh, a former assistant attorney general in the Bush administration—make the plausible argument that Washington could not function without the routine, even casual transmission, of classified information to uncleared persons:

  Every day members of the press and members of policy organizations meet with government officials. The meetings are a vital and necessary part of how our government and society function. The Founders provided for them in the Bill of Rights. During the meetings information is exchanged and sometimes the government officials provide information about the state of internal policy deliberations. Sometimes this exchange occurs before government leaders are ready for official or formal pronouncements of the issues involved, and sometimes the government officials make the decision to recount information that may relate to such classified information . . . . The practice of the media and others meeting with government officials and seeking information, the release of which some in the government might want to control, has gone on since our country was formed. This exchange is part of the very checks and balances on which the democracy has worked. This practice has become even more extensive through the lifetime of the Espionage Act. Until now, no administration has attempted to address what it may perceive as annoying or premature “leaks” by criminalizing the receipt and use of unsolicited oral information obtained as part of the lobbying or reporting process.11

  There is a conspiracy afoot—a real one—that has kept laws that punish journalists who reveal classified information off the books; that has persuaded judges to read in to precedent exceptions for journalists that may never have been anticipated and perhaps even actively reviled by the Founders; that has given even the most rock-ribbed Republican member of Congress a pause before calling for actual sanctions.∗ Only once in fifty years has the federal government successfully prosecuted the unauthorized disclosure of classified information by someone who was not a spy.12 Judges who grew up in the Watergate era have largely institutionalized the informal check provided by national security journalists. (This check remains strong, but it will atrophy over time; Watergate did not influence those now assuming positions of authority. Journalism no longer occupies a privileged status in society.)

  The case of Wen Ho Lee, the scientist accused of leaking nuclear secrets to China, is an object lesson in how this special status can work against justice. The government officials who leaked his name to reporters were conspiring with the press, in essence, to frame an innocent man. A public interest defense cannot really be mounted here. As Michael Kinsley writes:

  To say with a straight face that “only from confidential sources” could the public have been “informed about the issues” in this “matter of great public interest”—about the Wen Ho Lee case! The matter of great public interest was imaginary. It was part of an organized effort to misinform the public. And the culture and rules of confidential sources are what made this campaign of misinformation possible. The real story was a government plot to destroy a man’s reputation and violate his privacy. The culture of leaks was both central to that story and the reason everybody missed it.13

  It’s against our interests as journalists to admit that we can be used by a system that gives us special authority, but we are. This matters, because our ability to collectively report on national security will be jeopardized as we become more susceptible to dangerously politicized leaks of classified or sensitive information that, while not especially harmful to national security, are certainly not in the public interest. In that respect, we become more like WikiLeaks.

  Julian Assange and his comrades are in good company when they decide to weaponize sensitive material to exact political change. Consider the case of former governor Gray Davis of California. Facing a recall and the end of his political career, he revealed intelligence pointing to a possible al-Qaeda attack on the Golden Gate Bridge, hoping for a halo effect. While the FBI had previously announced “uncorroborated information” of unspecified groups targeting unspecified bridges in an unspecified state, Davis pressed forward with everything he knew.14 In the end, however, this ploy failed and the electorate rescinded his governorship.

  President James Madison didn’t publish notes from the Constitutional Convention until 1840—half a century after the fact.15 Meanwhile, apocryphal stories of a drunken Benjamin Franklin regularly leaking select, encouraging details of the secret meetings in Philadelphia pubs each night are still taught in school. The twin strands of America’s DNA, it seems, are and have always been opposite and irreconcilable.

  ∗The White House claims a missile strike would have jeopardized the surrounding civilian populace, an admirable consideration, though more believable if such considerations were extended to the thousands of civilian neighbors to hundreds of terrorists who weren’t Osama bin Laden.

  ∗The New York Times’s disclosure of the NSA wiretapping program resulted in some aforementioned huffing and puffing but no changes to the law.

  Notes
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br />   1. John Maxwell Hamilton, Journalism’s Roving Eye: A History of American Foreign Reporting (Baton Rouge: Louisiana State University Press, 2009), 151.

  2. Ibid.

  3. Daniel Patrick Moynihan, Secrecy: The American Experience (New Haven: Yale University Press, 1998), 133.

  4. Philip H. Melanson, Secrecy Wars: National Security, Privacy, and the Public’s Right to Know (Washington, DC: Brassey’s, 2001), 173.

  5. Charlie Savage, “Cheney Says He Urged Bush to Bomb Syria in ’07,” New York Times, August 25, 2011, A18.

  6. Kevin Poulsen and Kim Zetter, “‘I Can’t Believe What I’m Confessing to You’: The Wikileaks Chats,” Wired, June 10, 2010, http://www.wired.com/threatlevel/2010/06/wikileaks-chat/.

  7. D. M. Thomas Jr., Memorandum for Commander, “Combatant Status Review Tribal Input and Recommendation for Continued Detention under DOD Control (CD) for Guantanamo Detainee, ISN: US9KU-010024DP (S),” Headquarters Joint Task Force Guantanamo, December 8, 2006.

  8. Jennifer K. Elsea, “Criminal Prohibitions on the Disclosure of Classified Information,” Congressional Research Service, September, 2011, 19–24.

  9. Gabriel Schoenfeld, “Has the New York Times Violated the Espionage Act?,” Commentary, March 2006; this article was the genesis for his well-argued book on the subject.

  10. Background on the court rulings can be found in Elsea, “Criminal Prohibitions on the Disclosure of Classified Information,” 22–24.

  11. John N. Nassikas III, Kate B. Briscoe, et al., Memorandum of Law in Support of Defendants Steven J. Rosen’s and Keith Weissman’s Motion to Dismiss the Superseding Indictment, U.S. District Court for the Eastern District of Virginia, Alexandria Division, January 19, 2006, http://www.fas.org/sgp/jud/rosen011906.pdf.

  12. United States v. Samuel Morison, 844 F.2d 1057 (4th Cir. 1988).

  13. Michael Kinsley, “Secrets and Spies,” Slate, June 9, 2006.