Bitter Medicine
Our investigation is now at a close. Before I offer some concluding observations, let me briefly retrace our steps. Recall that we began by drawing attention to the deep sense of anxiety that pervades contemporary discussions on state secrecy. This anxiety, we observed, is felt less at the level of principle and more at the level of practice. It stems not from the concern that state secrecy is contrary to democracy but rather from the concern that the government can use state secrecy to conceal wrongdoing. What, I asked, explains the lack of confidence in the institutions that have been established to monitor state secrecy?
Chapter 1 traced the lack of confidence to a dilemma. The institutions charged with regulating the use of state secrecy, namely, Congress and the courts, have struggled to detect wrongdoing owing to constraints of information and expertise. Meanwhile, the institutions that have succeeded in uncovering wrongdoing—whistleblowing and leaking—have been criticized and indeed penalized for violating laws and regulations prohibiting the unauthorized disclosure of classified information. This dilemma, we argued, implies that if we wish to resolve lingering anxieties over state secrecy, we must either bolster the effectiveness of judicial review and legislative oversight or defend the legitimacy of whistleblowing and leaking.
Chapters 2–3 revealed that in order to make judicial review and legislative oversight more effective, we need to transfer the final say over the classification of information to a bench or committee that can marshal expertise and maintain due discretion. But this move, I argued, begs the question as to why we should feel confident that the members of this bench or committee will behave any more responsibly than the president. After all, there will rarely be objective answers to the question of what information should be made public. Given this, what is to prevent the members of this bench or committee from publishing or withholding information as best suits their own narrow or partisan agendas, especially when they know that outsiders cannot scrutinize their decisions? Why, in particular, should we assume that the members of this bench or committee will be able to resist capture by the organized interests that otherwise pervade contemporary politics?
Chapters 4–6 examined whether whistleblowing and leaking constitute legitimate means of regulating state secrecy. There I argued that, for two reasons, officials, reporters, and publishers should not be granted a legal right to make unauthorized disclosures: first, because they typically lack the information necessary to balance the public’s interests in secrecy and in disclosure; and second, because they cannot be easily held accountable for rash or malicious disclosures. We saw, however, that officials, reporters, and publishers can be morally justified in disobeying the law so long as the resulting disclosure (a) reveals an abuse of public authority; (b) is based on clear and convincing evidence; (c) does not pose a disproportionate threat to public safety; (d) is limited in scope and scale as far as is possible; and (e) is made publicly. Nonetheless, we concluded that officials will usually not be willing to abide by the last of these conditions because doing so exposes them to retaliation. This predicament, we argued, justifies relaxing the last condition, but only when we can ascertain that an unauthorized disclosure has been made in good faith. Unfortunately, it turns out that we cannot compel reporters, editors, and publishers to consistently weed out self-interested or manipulative disclosures on our behalf, because legal, political, and practical constraints make it difficult to enact, much less administer, such a norm.
It should be clear from this summary that there is little hope of finding a neat answer to the dilemma identified in chapter 1. Simply transferring the final say on classification from the executive to another branch revives rather than resolves the problem of credibility because we cannot tell whether the appointed regulators are acting dutifully. Yet dispersing regulatory authority by allowing officials, reporters, and publishers to take matters into their own hands is not entirely satisfactory either, as it can lead to too few or too many disclosures—the former when they lack courage, the latter when they are overzealous or manipulative. That we have been unable to find a satisfactory answer to the dilemma at hand does not mean, however, that we have provided no answer whatsoever. Arguably, we have cause for cheer on two fronts.
In Chapter 1 we acknowledged the concern that should the right to make unauthorized disclosures not be acknowledged by the law, the specter of legal action might deter officials from making such disclosures. We have now seen that the president cannot hope to stifle unauthorized disclosures: officials whose moral sensibilities are gravely offended by violations of the law will blow the whistle in spite of the threat of retaliation; those who lack the courage to speak up publicly can leak information, confident in the knowledge that law enforcement will often find it difficult to identify, much less prosecute, them. As a result, the concern that the prohibition of unauthorized disclosures will deter officials from making such disclosures now appears overblown. Indeed the evidence suggest that decision-makers already think twice before they authorize a potentially unlawful policy, as they cannot be confident that their decision will remain secret.
We have also rejected the view that unauthorized disclosures are always illegitimate. Under certain conditions officials will be justified in making an unauthorized disclosure. Crucially, we have established that not every such disclosure need be made publicly. Anonymous disclosures are justified when they reveal gross wrongdoing. They may also be justified when they reveal suspected wrongdoing, so long as reporters, editors, and publishers credibly verify and signal to the public that the source of the disclosure has acted in good faith. Importantly, these conditions do not appear to be unrealistic. We have examined anonymous disclosures—for instance, revelations about the use of inhumane interrogation practices at Abu Ghraib and the existence of secret CIA prisons—that have satisfied these conditions.
So, to summarize, we have established that there are means for effectively, credibly, and legitimately alerting citizens and lawmakers to wrongdoing. Nonetheless, our celebrations must be muted, because these regulatory means can misfire: overzealous officials may blow the whistle without good cause, and reporters, editors, and publishers may fail to weed out manipulative or self-interested leaks. This unruliness has two adverse consequences. The first concerns the exercise of executive power. Chapter 1 characterized the office of president as a product of hard-nosed thinking about the nature of international politics. In particular, the Framers emphasized the need for “energy” on the grounds that speed and secrecy are essential to mastering international politics. It is not difficult to see that energy is imperiled when little prevents a disgruntled or overzealous subordinate from exposing the delicate schemes that the president is within his rights to pursue in complete secrecy. The long-term effect of such unruliness is especially worrying. The more commonplace it becomes for covert actions or intelligence operations to be disrupted at inopportune moments, the more likely a president is to base his decision to undertake such actions or operations not on whether his decision will be approved retrospectively, once the relevant information can be shared with the public, but rather on whether his decision can withstand being made public at any moment.
A second adverse consequence concerns the quality of public deliberation. As we have seen, it can prove difficult for the public to discern whether an official responsible for making an unauthorized disclosure has acted in good faith. All too often this worry is countered by a recitation of various occasions on which reporters, editors, and publishers have refrained from publicizing rash or manipulative disclosures. These examples indicate, the argument goes, that many journalists do serve as trustworthy intermediaries. But this response misses the point. In the absence of a credible assurance that reporters, editors, and publishers will reliably filter out partisan or manipulative disclosures, the public will often be left to wonder—indeed it ought to wonder—whether the disclosures that have found their way into the public sphere should be believed. Thus, when we rely on unauthorized disclosures to combat the abuse of state secrecy, we inevitably degrade the quality of public deliberation, because the public can never be entirely certain as to which disclosures are reliable. The end result is intrigue, conspiracy, and indeed paranoia, as we see public opinion being shaped via a battle of leaks and counterleaks.
These consequences are disconcerting, but it should be clear by now why we must learn to live with them. For even if we could somehow clamp down on unauthorized disclosures, this is not something we ought to do, because such disclosures are the principal means by which citizens and lawmakers can be alerted to concealed wrongdoing. It would be preferable of course if we could ensure that only “deserving” leaks are in fact made public. But this degree of control, we have seen, is out of our reach. The result is a painful paradox. By relying on unauthorized disclosures to deter the president from doing ill, we make it harder for him to do good, and harder still for the public to tell the difference between the two. This is bitter medicine indeed! We have little choice, though, but to follow this regimen, because we have been brought to this point by facts that we cannot easily alter—the steady increase in the scope and scale of state secrecy since the turn of the twentieth century, the limited utility of having judges and lawmakers challenge the president’s control over classified information, and the difficulties associated with regulating unauthorized disclosures.
This is not, however, a counsel of despair. Certainly, the analysis presented here implies that it would be a mistake to assume, as so many First Amendment scholars do, that officials, reporters, editors, and publishers will always act in the public interest. But this does not mean that we must quietly suffer the unruliness of these regulatory mechanisms. Now that we understand why we must tolerate whistleblowing and leaking—because they can provide an effective, credible, and legitimate means to combat the abuse of state secrecy—we ought to focus on fashioning norms and practices that will help lessen the chance that these regulatory mechanisms will be used improperly. Let me now discuss some of the ways by which this might be done. While limitations of space preclude detailed analysis here, the following discussion will highlight the direction that further research on this topic might take.
A Credible Executive
In chapters 5–6, I argued that an official is justified in disclosing classified information only if doing so reveals an abuse of authority. However, because there can be disagreement over the rightful bounds of public authority, an official may be unsure as to whether a prima facie violation of the law really constitutes an abuse of authority. Now, ideally, an official who comes across suspected wrongdoing ought to approach senior managers who have the information necessary to assess whether an abuse of authority has in fact occurred. In practice, however, the fear of retaliation is likely to deter her from taking this step. How, then, can a president convince this official (and the reporters and publishers she contacts) that his decision to violate the law in secret is worthy of deference? The president will not be able to cite the law, since the rightful bounds of his authority will themselves be in dispute. Nor will he be able to share classified information that could convince officials, reporters, and publishers that his policies are justified. How, then, can the president convince officials as well as reporters, editors, and publishers that they ought to trust his judgment? The answer is—by possessing credibility.1 The president must convey to observers the sense that his decisions are well-founded and disinterested. Consider three ways in which this can be done.
The first is by signaling that his private interest tracks the public interest. For instance, the president might say, “Trust me, I will do only what is best for the country, because this is my homeland too.” Or he might say, “Rest assured, I will do what is best because I am mindful of my legacy.” Such claims have a distinguished lineage. In 1782 Congress recommended that the states impose a 5 percent duty on imports in order to rescue the finances of the United States—a recommendation that met with popular resistance. Called upon to defend the policy, Thomas Paine wrote in the Pennsylvania Gazette that Americans had no reason to suspect their delegates’ intentions because though “their situation enables them to know the more secret circumstances of things, and that such or such revenues are necessary for the security and defence of their constituents,” beyond this “the distinction ends” as their “estates and property are subject to the same taxation with those they represent.”2
Claims of this kind suffer from an obvious weakness, though. No doubt there are scenarios where the president’s interests will closely track those of the public. The president will, for instance, have no incentive to allow the country to be destroyed in nuclear war. But in less extreme scenarios, the president’s interests may be obscure and prone to change, making it difficult for observers to ascertain whether a secret policy (or a policy founded on secret information) impinges on the president’s interests in quite the same way as it impinges on the public. For instance, a president who authorizes covert action that risks igniting a war may have neither children liable to conscription nor financial interests that are likely to be harmed by the ensuing spike in taxation. Indeed, a war might well suit his interests should corporations that stand to profit from military conflict offer to support him. This is a concern that the Constitutional Convention seems to have taken quite seriously. The argument was put forward there that the power of making treaties be vested in the president alone because “from his situation he was more interested in making a good treaty than any other man in the United States.” But this view, Charles Cotesworth Pinckney reports, was rejected on the grounds that the president might “show an improper partiality for the state to which he particularly belonged.”3 The fear of corruption or partiality, Pinckney states, was the key reason the convention divided the treaty-making power between the president and the Senate.
It might seem that once we concede that the interests of elected officials can diverge from those of the public, then the only way to bolster the credibility of decisions made in secret is to expand the number and variety of interests represented in the decision-making process. This “safety in numbers” approach is one that a number of Anti-Federalists espoused when they argued that the House of Representatives ought to also be included in the treaty-making process, lest the president and two-thirds of a quorum of the Senate betray the country behind closed doors.4 Since the Framers were averse to granting the House a share in the treaty-making process, they sought instead to bolster trust in the president and Senate by reviving the kind of argument cited earlier by Paine. The president and Senate, John Jay argued in The Federalist No. 64, would have “no interests distinct from that of the nation,” because it would not be in their power “to make any treaties by which they and their families and estates will not be equally bound and affected with the rest of the community.” But aware no doubt that this claim had limited appeal, Jay crucially added that the Constitution’s provisions would ensure that only public-spirited individuals would fill public offices. As the Constitution had “taken the utmost care” to ensure that the president and Senators “shall be men of talents and integrity,” he wrote, “we have reason to be persuaded that the treaties they make will be as advantageous as, all circumstances considered, could be made.”5
The notion that we can design public institutions so as to ensure that the men and women who become our representatives are virtuous, and are therefore intrinsically trustworthy, must not be treated lightly. But which institutions can we rely on to produce this outcome? It is not clear that electoral politics, which the Framers saw as the foremost mechanism for the selection of a “natural aristocracy,” invariably leads to the selection of virtuous individuals.6 The influence of money, “spin,” and special interests are too well known to bear elaboration. With good reason we have come to fear that our leaders will pursue not what the common good demands, but rather the agenda of the interest groups that have propelled them into office. The problem, to be clear, is not that presidents have been or undoubtedly will be corrupted by special interests. Rather, it is that the need for discretion can make it difficult for them to prove that they have not been corrupted, in turn making it easy for skeptics to raise doubts about their “talents and integrity” (recall here the aspersions cast upon Vice President Cheney owing to his links to corporations that profited from the Iraq War).7
Consequently, if presidents are to be able to signal their freedom from corrupting influences, we will have to reform how they are chosen. In particular, we will have to make it possible for them to be elected without needing the assistance of sectional interests, because it is only by minimizing apparent conflicts of interest that one can minimize the suspicions that breed unauthorized disclosures. But this is a Sisyphean challenge, surely. And even if we could make some headway on this front, it is not clear that even a well-insulated president will enjoy lasting credibility, for trust founded on character is also vulnerable to suspicions about corruption other than that of the material kind. Arguably, the Framers underestimated the degree to which even individuals of “talents and integrity” can come under suspicion when observers are left unable to determine whether they have utilized secrecy to quietly impose their own values on an unsuspecting citizenry. Could there be a more poignant example of this phenomenon than the brouhaha over the Jay Treaty? “What its contents are, the Executive alone as yet know,” Representative M adison wrote to James Monroe in March 1795, owing to the “most impenetrable secrecy being observed.” Nonetheless, the suspicions of observers sympathetic to France had been repressed, Madison affirmed, “by the confidence that some adequate reasons exist for the precaution.”8 This confidence was not to last, though. Once the Federalist-dominated Senate decided to ratify the treaty in secret, the fears of the Democratic-Republicans boiled over. The resulting political upheaval proved so great that Senator Stevens Mason felt justified in disclosing his copy of the treaty to the provocateurs at the Philadelphia Aurora. Now, if the Democratic-Republicans could not find it in themselves to trust President Washington to make a treaty in secret, what hope is there that uprightness can quiet the suspicions generated by ideological conflict in our time?
A second way for the president to signal credibility is to cultivate a “reputation for restraint and commitment to the rule of law.”9 Few have emphasized this point more than Jack Goldsmith, who writes that in order to foster credibility, an administration “should be as open as possible, and when secrecy is truly necessary it must organize and conduct itself in a way that is beyond reproach, even in a time of danger.”10 What exactly does this mean? At the level of conduct, this means that the president must make a concerted effort to calm the public’s nerves by adopting the rhetoric of moderation. One example Goldsmith offers is the almost “apologetic” language that the Obama administration has employed when exercising the state secrets privilege.11 It also means that the president and his senior advisers must refrain from making self-serving disclosures, lest they set a bad example. An “open defiance and manipulation of the secrecy system at the top,” Goldsmith asserts, “indicates a lack of seriousness about secrecy that invariably corrodes the respect that lower-level officials give it in their discussions with journalists.”12
Goldsmith also recommends that at an organizational level presidents adopt decision-making procedures that convey to observers that policies and decisions have accounted for important objections and interests. An especially important step, in his view, is to have policies subjected to critical review by executive branch lawyers charged with ensuring that the administration’s actions are in compliance with the law. A president who establishes and abides by such internal checks and balances, Goldsmith argues, will give observers less cause for concern than one who relies on the concurrence of a few, handpicked lawyers and advisers known to espouse positions favorable to his own cause.13 The decision-making process that President Obama has established for authorizing covert drone strikes seems to follow this standard. Recent disclosures, no doubt intended to underscore the president’s reputation for “restraint and law-abidingness,” have emphasized the “contentious discussions” that precede the selection of targets, the “moral rectitude” of the participants in the decision-making process, and procedural safeguards that have been employed to minimize collateral damage, the most notable of these being that the president must “personally” approve every strike.14
Few would deny that Goldsmith’s advice is valuable. A reputation for “restraint and law-abidingness” may well give overzealous subordinates pause and thereby stem at least some mistaken disclosures. However, we must be realistic about what this advice can accomplish. There are two reasons to believe that conducting and organizing an administration “in a way that is beyond reproach” is unlikely to prevent many troubling disclosures. First, a president’s good reputation will not prevent subordinates who are politically opposed to him from making malicious disclosures intended to hurt his political standing. Goldsmith arguably underplays the harsh reality of political life, which is better captured by Stephen Hess’s observation that “the people who are most likely to come to Washington with each political administration bring with them a high talent and tolerance for intrigue.”15 Second, it is not clear that the president can consistently behave in a manner that is “beyond reproach.” A central challenge that the president confronts as a leader is the pervasiveness of moral and political disagreement, which can produce irreconcilable differences among his subordinates over the rightness of a particular course of action. When such disputes arise (and they are likeliest to arise during crises that call for bold and decisive action), it will often not be possible for the president to take everyone along. There can be qualifications and compromises, but in the end the president cannot always proceed by halves when confronted with subordinates pulling strongly in either direction. In other words, sometimes the president cannot help but disappoint a subset of his subordinates.
Now, when the president knows that a morally and politically charged decision will generate opposition from some subset of his subordinates, we should not be surprised to find him cutting these subordinates out of the decision-making process (or riding roughshod over their objections).16 As Hess notes, presidents who wish to conceal important matters typically “turn inward”: they “involve the absolute minimum number of advisers” and “compartmentalize” information.17 Goldsmith recognizes of course that this tendency exists, and he warns—quite rightly—that tightening rather than loosening “the normal circle of secrecy” can prove counterproductive over the long run, because it often provokes the kind of suspicions that lead to unauthorized disclosures.18 Nonetheless, it is unrealistic to expect the president to share information liberally when this would merely increase and strengthen the number of dissenting voices that he has to silence or overcome in the short run. If anything, this setting encourages him to value loyalty over competence when it comes to appointing advisers and lawyers.
The third way in which the president can bolster his credibility is by adopting decision-making arrangements that convey to observers that grave and respectable political actors agree with his decisions and policies. In a groundbreaking essay Eric Posner and Adrian Vermeule have identified a number of mechanisms that can be employed to this end, including bilateralism in cabinet appointments and multilateralism in foreign policy.19 The former of these proposals—that the president appoint to the cabinet political heavyweights whose interests, inclinations, and experiences are different from his own—is especially interesting. This proposal is attractive because it creates the equivalent of the canary in a coal mine—so long as the president is able to retain the support of these heavyweights, observers have reason to believe that his secret decisions and policies have the concurrence of men and women of experience. Conversely, should these heavyweights make what Albert Hirschman has termed a “clamorous exit,” then would-be whistleblowers and leakers as well as reporters and editors will have more reason to disclose and publish what they know about suspected wrongdoing.20
Posner and Vermeule depict their proposal as a response to the increased opacity of the presidency following 9/11. In fact, the underlying concept is as old as democracy itself. In the Library of History Diodorus Siculus recounts that Themistocles, the leading politician of early fifth-century Athens, once wanted to launch a covert operation against the Spartans. In order to dispel fears that he might actually be plotting a coup, Themistocles offered to disclose his plan to two men chosen by the Assembly who could then advise the Athenians on whether the plan ought to be executed. According to Diodorus, the Athenians accepted Themistocles’s advice and appointed Aristides and Xanthippus, not only because they were “upright characters,” but also because they were in “active rivalry” with Themistocles “for glory and leadership.” Themistocles then disclosed his plan to these men, and after they (and subsequently the Council) concurred that the plan was “advantageous” and “feasible,” the Athenians allowed Themistocles to proceed.21
This Athenian episode captures both what is desirable and what is troubling about Posner and Vermeule’s proposal. By allowing Themistocles to share his plan with rivals who had the authority to veto the plan but not to disclose its contents, the Athenians were able to take advantage of adversarialism without jeopardizing secrecy. Yet, by allowing Aristides and Xanthippus to veto Themistocles’s plan, the Athenians also opened themselves up to the risk that these intermediaries might reject Themistocles’s plan for reasons that the Athenians might not endorse were they aware of the plan’s details. Perhaps this is what actually happened. According to another version of the story, when Themistocles shared his plan with Aristides, the latter informed the Athenians that the plan was “extremely beneficial, but not at all honorable,” whereupon the Athenians, Plutarch writes, “commanded Themistocles to think no farther of it.”22
To be sure, Posner and Vermeule’s proposal does not leave the president vulnerable to an Aristides-type figure who assumes that deception is always contrary to honor. Since the heavyweights invited into the cabinet will not have the right to veto the president’s decisions, they will not be able to prevent him from exercising secrecy as he sees fit. Nonetheless, if the president is to retain the support of these heavyweights, he will have to be mindful of the limits to which they can be pushed. Hence, as Posner and Vermeule admit, from the president’s perspective, credibility will sometimes have to be “gained at the expense of control.”23 Not every such loss need be troubling. The threat by Justice Department officials, including Attorney General John Ashcroft, to resign en masse in 2004 reportedly compelled President Bush to make modifications to the NSA’s surveillance program that addressed their concerns about its legality.24 In this case the objections to the president’s program appear to have been narrowly tailored and well informed. But it is not difficult to imagine instances where cabinet appointees might have more dogmatic objections—consider, for example, Secretary of State William Jennings Bryan’s pacifism in the run-up to World War I.25
Posner and Vermeule acknowledge that this problem exists. The proposed mechanisms, they write, are not “good for all times and places.”26 But the problem might be deeper than they admit. Should it become a norm for presidents to act multilaterally or to make bilateral appointments, a decision to forgo these arrangements may end up arousing unwarranted skepticism on the part of observers. Suppose, for instance, a president orders a covert strike after determining that America’s allies lack the requisite capabilities. A subordinate official who has grown accustomed to multilateral action might incorrectly interpret the president’s unilateralism as evidence of adventurism. Consider as well the problem that political heavyweights in the cabinet will face in signaling their independence to critics on the hunt for signs of co-optation. The critics will want reassurance that these heavyweights are not being silent out of a misplaced sense of loyalty to their colleagues or an inflated sense of their contribution as a counterbalance to the administration’s excesses.27 They will also want reassurance that these heavyweights have not succumbed to the lure of office and thereby become complicit in wrongdoing. What issues will these heavyweights fix upon to burnish their credentials in the eyes of outsiders? And at what cost to the president’s effectiveness? These unknowns are likely to make bilateral appointments quite tricky to handle in practice.
A Responsible Press
The president can stem unauthorized disclosures, then, by signaling that his decisions or policies are well-founded and disinterested rather than arbitrary or self-interested. He can do so, we have seen, by showing that these decisions either (a) adversely affect his own interests; or (b) have not been made without due consideration of widely shared interests and objections; or (c) have the support of grave and respected political actors. Of course would-be whistleblowers and leakers, and the reporters, editors, and publishers they contact, will care about these signals only if they are themselves well-intentioned. If their objective is to malign the president, then they will care not one whit for his credibility. Instead, they will make selective disclosures in order to further their own particular agendas. Hence if we wish to stem not only mistaken but also malicious disclosures, we need a responsible press. But how can we encourage the press to behave responsibly when we cannot rely on legal sanctions?
There appear to be two alternatives. The first is to persuade the press to exercise self-censorship. This is not a new idea. As early as 1917 lawmakers rejected the Espionage Act’s censorship provision on the grounds that America could rely on the “patriotism” and the “active and self-imposed censorship” of the press.28 On two occasions—during World Wars I and II—pressure was brought to bear on the press in a systematic manner through the offices of the Committee on Public Information and the Office of Censorship, respectively. Subsequently, during the early decades of the Cold War, there were calls for a peacetime equivalent of the Office of Censorship. For instance, in 1963 Allen Dulles, the former director of the Central Intelligence Agency, drew attention to the British Defense Advisory Notice System (commonly referred to as the DA-Notice System) whereby the British government provides media organizations with “general guidance” about the implications of publishing national security information, which they are free to accept or reject.29 The success of this system, Dulles wrote, ought to inspire “quiet discussions” between “selected government officials” and “leaders of the press” in the United States about the extent to which “there can be mutual agreement for setting up machinery to keep the press confidentially advised as to the matters in which secrecy is essential to our security.”30 But Dulles’s advice found few supporters at the time, and it is unlikely to do better for the foreseeable future. In the press’s view, the censorship systems established during World Wars I and II were tolerable only because the censor’s mandate was limited both substantively (to matters relating directly to the war effort) and temporally (to the duration of the war).31
The absence of an American equivalent to the DA-Notice System has not, however, precluded officials from informally pressuring reporters, editors, and publishers to refrain from publishing harmful or malicious disclosures. Anecdotal evidence suggests that these efforts have met with a fair degree of cooperation when officials have asked journalists to withhold classified information that is only incidental to a news report.32 For example, in 2005 the Bush administration was able to convince the Washington Post to withhold the names of countries that helped the CIA establish its secret prison system. But such interventions have met with far less success when officials have asked journalists to withhold news reports whose very subject matter concerns a state secret, be this CIA Director William Colby’s attempt to keep the Glomar Explorer project under wraps (see chapter 4) or the Bush administration’s request that the New York Times withhold the story on the Terrorist Financing Tracking Program (see chapter 6).
So what more can be done to foster self-censorship in cases of the latter sort, i.e., disclosures that do not expose serious wrongdoing? The first challenge that any initiative to foster responsibility must overcome is resistance from reporters, editors, and publishers, who take the Bickelian view that the First Amendment demands an adversarial press. This view is summarized by Ted Galen Carpenter’s assertion that the “media play a questionable role when they become accomplices in preserving government secrecy,” because such action “maximizes the ability of officials to conceal information about unwise or disreputable actions.”33 Perhaps the most cogent defense for this position is the one offered by Ted Gup. He argues that refraining from cooperation serves two important interests. The first is deterrence. “The dread of exposure,” he writes, “is a stern corrective that should always weigh upon government’s deliberations.” However, the force of this corrective, Gup asserts, is weakened if the government feels that it can appeal to the press to “delay publication to a more propitious time.” Hence it is “only by being a predictable force for holding government accountable,” he writes, that the press can “play its most vital role.”34 Gup does not favor blind adversarialism, though. “The press,” he writes, “is still entirely free to entertain government’s appeals for special consideration if sought on behalf of programs and efforts that would not … compromise commonly held views of decency and law.” But to consider self-censorship in cases that lie beyond this point, he argues, hurts the press’s credibility. Criticizing, for instance, the Post’s willingness to withhold the names of the countries that hosted the CIA’s secret prisons, he writes that “accommodating government’s appeals regarding suspect, unscrupulous, or inhumane actions creates a kind of toxic partnership,” because the press’s silence can be “misconstrued” by citizens and lawmakers as an “implicit endorsement” of the government’s actions. Moreover, cooperation may discourage “potential sources from taking the risk of coming forward,” because it leaves them uncertain as to “whether the press will have the courage to publish their story.”35
These are powerful arguments, but they are not entirely convincing. For one thing, the claim that journalists should refuse to even consider censoring themselves once they become aware of activity that violates “commonly held views of decency and law” seems too strong. This criterion rules out nearly every interesting case, i.e., unauthorized disclosures concerning prima facie violations of the law. The reason we want the press to consider self-censorship in such cases is precisely because it is not always clear whether a violation of the law amounts to an abuse of authority, much less whether a given source might not be exploiting the appearance of wrongdoing in order to further a narrow or partisan agenda. Furthermore, the claim that officials will be deterred from wrongdoing only if they believe that the press can never be convinced to withhold unauthorized disclosures seems overly pessimistic. Arguably, the likelihood that information about wrongful decisions will be disclosed to outsiders should be enough to give most decision-makers pause, since they cannot know who the recipient of the disclosure might turn out to be (and therefore how amenable the recipient might be to pleas to withhold the disclosure). Finally, an official who summons the courage to make an unauthorized disclosure is not without alternatives should a reporter (or his editor or publisher) withhold the disclosure in response to a plea from the president. Nothing prevents this official from approaching other reporters or indeed blowing the whistle in the event that she believes the press has failed to comprehend the importance of her disclosure.
There appears, then, to be no compelling reason for the press to adopt a stubbornly adversarial stance, publishing every disclosure concerning suspected wrongdoing that comes its way. But even if the bulk of reporters, editors, and publishers accept the need to exercise judicious self-censorship (as many of them claim they do), an insurmountable practical problem remains: we lack the means by which to rein in the black sheep in the journalistic community, who delight in and profit from sensation.36 This pessimistic statement is not a knee-jerk reaction to recent events, such as WikiLeaks’s indiscriminate disclosure of the United States’ diplomatic communications. In fact few officials or lawmakers have ever been optimistic about the prospects of self-censorship.37 The Coolidge Committee’s remarks on the issue neatly capture the problem. “We have run across instances,” the committee observed in 1956, “where information of high news value has been voluntarily withheld, only to have it ‘scooped’ by someone less scrupulous.” Such instances show, it declared, that the “competitive element in news gathering is too strong” for any attempt at voluntary censorship “to be successful.”38
The Coolidge Committee’s conclusion might be challenged on the grounds that peer pressure could deter journalists from “scooping each other.” But the problem with such a strategy, as Dulles pointed out long before WikiLeaks arrived on the scene, is that the pluralism of the American media establishment limits the efficacy of peer pressure. Unlike England, he wrote, the United States features “no comparable center of authority in the matter of press and publicity, and it would be harder here to find any relatively restricted group of men in the field of news media whose judgment would be accepted by the press in all parts of the country.”39 This is precisely why Dulles called for the American equivalent of an Official Secrets Act, which, he believed, would scare the press into taking official requests to withhold publication more seriously. However, this proposal is something of a red herring. For one thing, it is founded on a conceptual error, since legal sanctions against unauthorized disclosures deter publication rather than promote self-censorship (the latter referring to the decision to withhold information even when there is no legal obstacle or consequence to publication). Furthermore, Dulles’s approach is unlikely to pass constitutional muster. An Official Secrets Act that punishes publication without concern for the nature and intent of an unauthorized disclosure is certain to be struck down as an overbroad violation of the First Amendment. Such a statute is also likely to join the list of statutes against unauthorized disclosures that officials have declined to enforce on the grounds that prosecuting the press only draws further attention to revelations that are better forgotten.
Thus even though we are justified in calling upon the press to censor rash or malicious disclosures, there is little reason to think that every member of the press will cooperate. It makes sense, then, to approach the problem from another direction. If it is unrealistic to expect every member of the press to display due caution before publishing sensational disclosures, perhaps we ought to punish (and thereby hopefully deter) irresponsibility by criticizing the offenders and undermining their credibility with the public. But who should do the criticizing?
One possibility is for the president and Congress to take the lead. They can, for instance, try to persuade the public to boycott the relevant media organizations. This is what happened in the WikiLeaks case, where the United States was able to prevail on American corporations to cut off support services to the website.40 But this method of enforcing accountability is both dangerous and unreliable. It is dangerous because the president and Congress may turn public opinion against media organizations that have actually published a disclosure made in good faith.41 In theory, such organizations ought to be able to defend themselves by making further disclosures to back up their claims. In practice, however, government-led pressure might lead weakhearted and financially vulnerable publishers to fold. On the other side of the table, the president and Congress can prove unreliable critics because, as discussed in chapter 4, it will often make more sense for them to ignore rather than engage with unauthorized disclosures lest this prolong the controversy and lead to the disclosure of even more information. Furthermore, as discussed in chapter 6, they may choose not to criticize influential media organizations out of the fear that these organizations will retaliate against them by splashing their (unrelated) errors and follies all over the front page.
A second possibility is to rely on self-criticism, that is, on the ombudsman. This idea is appealing because at first glance the ombudsman appears to have a desirable mix of incentives. Because she is employed by the media organization she evaluates, she is unlikely to be biased in the way that critics from officialdom might be. Furthermore, because ombudsmen tend to be experienced journalists, there is reason to think that they will be realistic about the degree to which ethical guidelines can be followed in practice. And finally, because the ombudsman is typically protected against direct interference by management, there is reason to believe that her judgments will be relatively independent.
But why, when the office embodies such desirable incentives, have ombudsmen had so little effect? As we saw in chapter 6, the ombudsmen of the New York Times and the Washington Post openly admit that their criticism of the undiscriminating use of anonymous sources has had no discernible effect on their organizations.42 Some scholars have attributed this outcome to flaws in the design of the ombudsman’s office. For instance, it has been argued that the tendency to recruit the ombudsman from within the ranks of a media organization serves to limit the effectiveness of the occupant, since the occupant then may not only lack critical distance but may also be fearful of stepping on her colleagues’ toes lest this hurt her future prospects within the organization.43 This is an important observation, certainly. But arguably the more fundamental problem is their lack of enforcement power. As we saw in chapter 6, the ombudsmen of the Times and the Post have been only too aware of the misuse of anonymous sources, and their fairness, sensitivity, and independence in addressing the matter has been admirable. The problem is that the very reporters, editors, and publishers who have hired them have either rebuked them or, worse still, simply ignored their advice and criticism.44 Consider what happened when Byron Calame, the Times’s public editor, sought to determine how far the Times’s decision to publish James Risen and Eric Lichtblau’s report on the NSA warrantless surveillance program had been influenced by Risen’s threat to publish the report in his State of War. Writing soon after the publication of the NSA story, Calame noted that in spite of the Times’s editor’s claims to the contrary, Risen’s publisher had informed Calame that he had spoken about the book with the Times’s Washington bureau chief twice in the month preceding the publication of the NSA report. “So it seems to me,” Calame observed, that “the paper was quite aware that it faced the possibility of being scooped by its own reporter’s book.” The “key question” then, Calame concluded, was “to what extent did the book cause top editors to shrug off the concerns that had kept them from publishing the eavesdropping article for months?” But when he sought an answer to this question from the Times’s management, Calame drew a blank. As he informed the Times’s readers: “For the first time since I became public editor, the executive editor and the publisher have declined to respond to my requests for information about news-related decision-making.”45
Calame’s experience supports media critics’ assertions that grand claims notwithstanding, media organizations actually want ombudsmen to serve more as a mechanism for addressing readers complaints and less as a fount of professional criticism.46 This realization has prompted some to demand that ombudsmen be empowered to enforce the codes of conduct drafted by media organizations themselves.47 But this seems exactly the wrong way to proceed. If these organizations cannot be relied upon to voluntarily abide by codes of ethics that they themselves have drafted, then they cannot be trusted to appoint ombudsmen who will compel them to follow these codes. The premise defeats the conclusion. Indeed demanding that ombudsmen be granted powers to punish bad behavior makes it less likely that they will be able to serve the role that they do play now, which, as in the Times example cited above, is to reveal the moment at which reporters, editors, and publishers seem to suddenly lose their much-professed regard for the public’s right to know. Should we demand more from the office, it is inevitable that only a “safe” sort of person will be appointed to fill the position. Hence if we want to retain the function of the ombudsman as a critic, the punishment for unethical behavior must come from outside the organization.
Who else can we rely on to challenge the press? Another possibility is to foster the sort of media environment in which the misuse of anonymous sources is likely to be subject to public rebuke by rival media organizations. This idea is far from new: it lies at the heart of the much-discussed 1947 Report of the Commission on the Freedom of the Press (commonly referred to as the Hutchins Commission). Citing evidence showing that professional associations such as the American Society of Newspaper Editors had quietly “passed over” the “frauds and crimes” committed by their members, the commission recommended that the press “engage in vigorous mutual criticism.”48 But what incentive did the commission think reporters, editors, and publishers have to undertake this backbreaking labor? The commission’s simple reply: self-preservation. Members of the press must criticize each other, the commission argued, because it is only by showing that are willing to hold each other accountable that the press can forestall the calls for legal regulation that will inevitably follow in the wake of malpractice. Otherwise, “not even the First Amendment will protect their freedom,” the commission warned, for the “amendment will be amended.”49
Thus far, the Hutchins Commission’s threat has turned out to be hollow. Note that its report was written shortly after World War II, a time when the idea of formal press censorship seemed a realistic threat. Following the Pentagon Papers case we now know that the executive can do very little to censor the press in the absence of explicit congressional authorization. Since Congress has wisely refrained from arming the executive with a censorial power, and since the executive has been loath to prosecute the press following publication, lest this draw unwanted attention to the relevant disclosure and make a martyr out of the journalist responsible, the press currently has little reason to fear that its failure to hold itself accountable for how it uses anonymous sources will lead to its being subjected to formal regulation.
Is there any other way to stimulate the “vigorous mutual criticism” that the Hutchins Commission called for? There may be an economic incentive. For more than two decades now, scholars and practitioners have argued that the use of anonymous sources “hurts the credibility of media organization because it makes audiences “suspicious … about the motives of both reporter and source.”50 This dynamic, they emphasize, can impact a media organization’s bottom line. “It’s a matter of trust,” according to Fred Brown of the Society of Professional Journalists, “and if the media can’t be trusted, they can’t compete in an environment where there are innumerable sources of information.”51 As it turns out, though, the evidence on this point is not entirely clear. Certainly, there is some support for the notion that any use of anonymous sources, regardless of purpose, hurts a media organization’s credibility. For example, a recent survey by the Annenberg Public Policy Center has shown that 89 percent of readers agree that “news stories relying on anonymous sources should be questioned for accuracy, while 53% said such stories should not be published at all.”52 But this evidence is contested, and it does not distinguish the effect that the misuse—as distinct from the general use—of anonymous sources has on credibility.53
In spite of the absence of clear evidence, media organizations seem convinced that the use of anonymous sources weakens the credibility of their product in the marketplace.54 Assuming that this belief has some foundation, can we hope that it will foster responsible behavior? Presumably, if editors and publishers really believe that the use of anonymous sources harms their product, then they ought to see it as being in their own interest to punish their employees’ disreputable conduct (in order to forestall a loss of credibility and thereby market share) and to expose such conduct on the part of their rivals (in order to undermine their rivals’ credibility and market share).
There is some reason to be optimistic on this count when we consider the fate of Judith Miller, the New York Times reporter responsible for conveying manipulative disclosures in the run-up to the Iraq War. Following the controversy over its reporting on Iraq’s purported weapons of mass destruction program, the Times disclosed in 2004 that the Iraqi defectors who had been quoted anonymously in a number of Miller’s news reports had been “groomed” by Ahmed Chalabi, a founder of the Iraqi National Congress, an organization dedicated to the overthrow of Saddam Hussein.55 Although the Times failed to criticize either Miller or her editors, a few media critics, most notably Jack Shafer and Michael Massing, took Miller to task for having failed to disclose her sources’ conflict of interest. Initially, the Times defended Miller. Its editor, Bill Keller, showered disdain on Miller’s critics, saying that “it’s a little galling to watch her pursued by some of these armchair media ethicists who have never ventured into a war zone or earned the right to carry Judy’s laptop.”56 But the critics had succeeded in drawing blood—Miller’s credibility had been damaged. And so when the next controversy involving her use of anonymous sources arose (when it was revealed that she had been willing to misleadingly cite Vice President Cheney’s aide, Lewis Libby, as a “former Hill staffer,” so as to obscure his role in an organized smear campaign against a critic of the Bush administration), the stage was set for her downfall. The final blows were delivered by two of her colleagues: Calame, the public editor, who publicly questioned whether she ought to continue at the Times; and Maureen Dowd, the prominent columnist, who published a scathing indictment of Miller’s reporting techniques.57 Shortly thereafter, Miller resigned from the Times.
Although the outcome in the Miller case provides an indication of how a competitive media environment can help guard against the misuse of anonymous sources, the fact is that members of the so-called mainstream media usually shy away from turning their firepower on each other. This point is underscored by the Times’s reaction to the Post’s decision to publish an internal Times email exchange in which Miller confirmed that Chalabi was the source for a number of her reports. When asked for his comment on the report, Andrew Rosenthal, an editor at the Times, rapped the Post’s media critic, Howard Kurtz, on the knuckles; in Rosenthal’s view, it is “a pretty slippery slope” to publish reporters’ private communications and “reveal whatever confidential sources they may or may not have.”58 Notably, this reaction produced no response from the Post, and there were no follow-up stories on the Times’s conduct.
What explains the media’s lack of interest in probing the questionable use of sources? Is there something of a market failure here? Has the oligopolistic nature of the media market with its high barriers to entry made it difficult for new entrants to challenge the unscrupulous practices of the established players, all of whom, being equally complicit in the loose and easy use of anonymous sources, have no incentive to cast the first stone? This is not an implausible idea, especially in view of the growing concentration of media ownership, which dampens competition.59 Nonetheless, what the exchange between the Times and the Post cited above indicates is that when it comes to anonymous sources, the more immediate obstacle to media regulation through media criticism is the esprit de corps of the American media establishment, whose practitioners have gladly taken to heart Justice Hugo Black’s claim in the Pentagon Papers case that “the press was protected so that it could bare the secrets of government and inform the people.”60 This claim, we have seen, cannot stand. It ignores both the Framers’ deep concern for energy and the fact that reporters, editors, and publishers have interests of their own. Nonetheless, as this doctrine has been trumpeted far and wide, members of the press have come to believe (or so they claim) that they really are serving the Constitution when they disclose classified information without shedding light on the motives of their sources.
Can we hope that the analysis presented here will alter the esprit de corps of the journalistic profession? There is little room for optimism. What incentive do media organizations have to hold themselves or each other accountable when the public’s appetite for propriety pales in comparison to its appetite for controversy, especially when matters pertaining to the mysterious world of secret intelligence are at stake? Consider the fact that Risen’s reporting in the Sterling case was originally meant to appear in the Times. When the CIA learned of Risen’s intention to disclose the existence of Operation Merlin, it convinced the Times that his report ought to be withheld owing to the harm that might be caused to national security.61 But then Risen simply went ahead and published the report in his State of War, which quickly ascended the best-seller lists, reportedly earning him royalties in the “low six figures.”62 This example suggests that there are simply too many ways in which irresponsibility on the part of journalists can prove profitable. Readers, book reviewers, and Pulitzer Prize committee members are only too willing to lap up and praise every embarrassing revelation that makes its way into print without sufficient regard for the broader principles that ought to govern how anonymous sources are used. And so long as journalists who make questionable decisions find themselves rewarded in this way, there is little reason to be optimistic that criticism from “armchair media ethicists” will give them sleepless nights.63
The foregoing analysis suggests that if we want a more responsible press, we ultimately need more discerning consumers. Yet there is little reason to believe that American consumers have an appetite for media criticism.64 For this reason we must turn to civil society. In particular, we must hope that enterprising citizens will establish an independent and well-funded organization dedicated to scrutinizing media performance, which could name and shame reporters and editors who misuse anonymous sources, and the publishers who condone such behavior. This is not a new proposal, to be sure. It echoes what the Hutchins Commission had to say more than half a century ago.65 Well aware that the media establishment might lack the wisdom to do what is in its own long-term interest, the commission’s report recommended that civil society endow an “independent agency to appraise and report … upon the performance of the press.”66 Since this proposal proved unpopular with the media establishment, it has been allowed to fade from public consciousness. Now that we have understood why this proposal is so important—because there are so few viable means of regulating the press—let us hope that it will be revived.
But we must be more realistic than the Hutchins Commission was about the challenges that such an organization is likely to face. Since the press’s ability to get away with irresponsible behavior stems from a lack of discernment on the part of consumers, presumably even a well-funded and independent body dedicated to media oversight will be hard-pressed to influence the public, and to thereby threaten the bottom line of irresponsible media organizations. Looking back, it is impossible not to be astonished by the optimism of the Hutchins Commission, which took the view that “a chain of educational FM stations could put before the public the best thought of America and could make many present radio programs look as silly as they are.”67 Today, this claim appears laughably naive. It is entertainment that the people want, and so the way forward lies in combating sensation with sensation.68 We must also not forget that there will always be partisans willing to shelter, praise, and promote the reporters, editors, and publishers who serve their cause regardless (or perhaps because) of how they employ anonymous sources. Indeed these partisans will spare little effort in attacking media critics who expose how they benefit from the misuse of anonymous sources.69 These dynamics will no doubt greatly blunt the effect of and interest in what media critics have to say. This does not mean, however, that we ought not to persevere. Politics is, after all, “a strong and slow boring of hard boards.”70
The Dilemma of State Secrecy
We have identified two measures that, if adopted, might lessen the chance that rash or malicious disclosures of classified information will find their way into print. The president can make commitments that signal the credibility of his decisions and policies, and media critics can subject anonymously sourced reports to critical review. But these measures, we have seen, can go only so far. The president will not always be able to take everyone along when hard decisions need to be made, and even the threat of public censure will not always deter journalists from publishing rash or manipulative disclosures. But these outcomes are not certain. Constructive behavior will be more feasible in certain times and places: not every political season will feature frenzied partisanship. Therefore, scholars ought to examine, more thoroughly than we have done here, the conditions under which such constructive behavior might become feasible.
Still, there is a good chance that what Bickel called the “unruly contest” between the executive and the press will remain the norm for much of the time—with all the attendant disadvantages. In that case, the single most important step that can be taken to prevent this contest from becoming even more unruly is for the referees—namely, lawmakers and judges—to refrain from picking sides. This caution becomes necessary because the press and the executive will each occasionally try to knock out the other side. Should an unauthorized disclosure reveal a terrifying abuse of power, lawmakers and judges will be urged to make it easier for officials and journalists to expose classified information. Conversely, should an unauthorized disclosure cause a terrible loss of life and property, lawmakers and judges will be urged to make it easier for the president to clamp down on his subordinates and the press. What will make these cries especially powerful is that they will both call on the Constitution for support. The former will claim that only the First Amendment can save the United States from the transformation of the executive into an “imperial presidency,” whereas the latter will voice outrage at the interlopers who have endangered the nation by trespassing on the president’s prerogative under Article II. We should be under no illusion about what will follow should we succumb to these pleas. The harder we make it for the executive to keep secrets, the likelier the president is to retreat into the “black world” and to surround himself with an ever-smaller circle of advisers in the hope of thwarting leaks. Equally, the harder we make it for officials to voice their discontent, the likelier it becomes that they will route their disclosures via foreign media organizations, a practice that will make the problem of indiscriminate publication even more widespread than it already is.
Consequently, when crises occur, lawmakers and judges, to whom the executive and the press will turn for aid, must remember that we are safest when we allow the existing cat-and-mouse game to continue.71 This is not, to be sure, a call for neutrality. Lawmakers and judges ought to revisit the rules when this is necessary to allow this “unruly contest” to continue. In particular, they ought to ensure that neither the press nor the executive is able to prevent the other from carrying out its core function. Should the government begin to hemorrhage state secrets, or should we witness a near cessation of unauthorized disclosures—circumstances that seem quite unlikely at present—then lawmakers and judges should consider intervening. What they must not do is fall into the trap of rewriting the rules under the assumption that one or the other side deserves to win the game. It ought to be clear to them by now, I hope, that the “unruly contest” between the press and the president is the product of historical, institutional, and political factors that cannot be easily swept aside, and that there is, at present, no better way to regulate the exercise of state secrecy.
The dilemma that state secrecy poses for democracy is here to stay then. To be clear, the dilemma we are left confronting is not the one we started out with. The original dilemma was the appearance of a mismatch between who should regulate state secrecy (lawmakers and judges) and who actually does (whistleblowers and leakers). To solve this dilemma, we said, we would need to show that lawmakers and judges could in fact oversee the executive, or we would need to prove that whistleblowers and leakers could be justified in disobeying the laws and regulations enacted to ensure secrecy.
This dilemma, we have seen, is not unsolvable. Admittedly, giving the final say over classification to lawmakers or judges does not grant confidence that state secrecy will not be used to conceal wrongdoing. This is because the secrecy that these regulators must operate under makes it difficult to ascertain whether they have been able to resist vested interests who have every incentive to corrupt them. But we have made progress here by showing that unauthorized disclosures need not always be illegitimate. Under certain circumstances, such disclosures will be compatible with democracy, namely, when they genuinely expose wrongdoing. As disclosures of this kind, and leaks in particular, are not easily suppressed, we have every reason to believe that democracies have available a legitimate and effective means of combating the abuse of state secrecy.
The true dilemma of state secrecy grows out of this success. Ironically, the irrepressibility of unauthorized disclosures also means that there is no easy way to distinguish between true and false alarms. Because of this, we must greet unauthorized disclosures with bated breath, aware that they may actually serve to harm democracy by weakening an elected president, by undercutting policies we might support if we knew the bigger picture, by fouling public deliberation with aspersions and half-truths, and by evading democratic accountability through the cunning use of anonymity. That we must rely on a regulatory weapon that has the tendency to backfire at least as often as it finds its target—this is the dilemma that state secrecy creates for democracy.
Perhaps it will be argued that this dilemma is not especially worrying. After all, contemporary democracies fall short in so many respects, suffused as they are with inequalities of income, opportunity, and capability. So why, then, should we be particularly troubled by the asymmetries of information embodied in and furthered by secrets and leaks? These asymmetries, it will be argued, ought to be placed on the reformer’s to-do list and treated as another inequality that should be minimized as far as possible. But this stance fails to realize the depth of the dilemma. The analysis presented here does not encourage democratic reform; instead, it reveals the limits or even the futility of such reform. As such, it invites democracies—and democratic theory—to adopt a more realistic stance. It bids them to forgo platitudinous calls for “transparency” and quixotic endeavors to “tame the prince,” and invites them to study instead how we can best ensure that executives and those who watch over them—the many princes of our secretive republics—will utilize responsibly the discretion they are bound to enjoy.