Notes

Introduction

Who Watches the Watchers?

1. “Gonzales Defends NSA, Rejects Call for Prosecutor,” CNN, January 17, 2005, online at http://tinyurl.com/9z2kq.

2. Dunn, Democracy, 185–86. Also see Russett, Controlling the Sword, 148; Manin, The Principles of Representative Government, 167–68; Dahl, A Preface to Democratic Theory, 73. Emerson, “Legal Foundations of the Right to Know,” 14; Meiklejohn, Free Speech, 88–89; Meiklejohn, “The First Amendment Is an Absolute,” 257; Emerson, “National Security and Civil Liberties,” 80.

3. Thompson, “Democratic Secrecy,” 192.

4. Schlesinger, Imperial Presidency, 447–49, emphasis added.

5. For an overview see Olmstead, Challenging the Secret Government, chap. 1.

6. For examples see Chambers, “Behind Closed Doors”; Elster, “Deliberation and Constitution Making”; Schepple, Legal Secrets; Bok, Secrets, chaps. 9–10.

7. Scholars often blur this distinction. For example, they often cite the secrecy of the Constitutional Convention as evidence of the Framers’ acceptance of the need for state secrecy (see Hoffman, Governmental Secrecy, 20–24; Kitrosser, “Secrecy and Separated Powers,” 526–27; Schoenfeld, Necessary Secrets, 60–62). Unfortunately, this reference clouds the issue because the convention’s secrecy was intended to ensure candor rather than national security. Notice the conceptual difference in these cases. In the former information is meant to be kept from citizens, whereas in the latter information is kept from citizens only incidentally, i.e., in order to keep it from foreigners. This conceptual difference has normative and practical implications. Since the need for state secrecy depends on the scope and scale of national security threats, there can be no fixed rule about when declassification will occur. Civil secrecy, by contrast, is more accommodating of fixed rules, as in the case of the Federal Reserve, for example, which discloses minutes of its deliberations on a prescheduled basis.

8. Consider, for example, the oft-cited story about the “man-size” safe that Vice President Cheney reportedly used to store his documents (Barton Gellman and Jo Becker, “A Different Understanding with the President,” Washington Post, June 24, 2007). Also see Savage, Takeover, chaps. 5 and 7.

9. For instance, see John Schwartz, “Obama Backs Off a Reversal on Secrets,” New York Times, February 9, 2009; Karen De Young, “Secrecy Defines Obama’s Drone War,” Washington Post, December 19, 2011; Shane Harris, “Plugging the Leaks,” Washingtonian, July 21, 2010.

10. Chris Buckley, “China Warns U.S. to Be Careful in Military Refocus,” Reuters, January 9, 2012. Also see Friedberg, A Contest for Supremacy.

11. Scott Pelley, “Panetta: Iran Will Not Be Allowed Nukes,” CBS News, December 19, 2011. Also see Sanger, Confront and Conceal, chaps. 6–9.

Chapter 1
The Problem

1. Schlesinger, Imperial Presidency, 317, 329.

2. Ibid., 326, 329.

3. Ibid., 326.

4. Ibid., 318; Commager, The Defeat of America, 87; Berger, Executive Privilege, 203–4; Hoffman, Governmental Secrecy, 12–13.

5. Kitrosser, “Secrecy and Separated Powers,” 520–21; Pozen, “Deep Secrecy,” 298; Stone, Top Secret, 1; Pallitto and Weaver, Presidential Secrecy and the Law, 1. Compare with Michael Doyle, “Misquoting Madison,” Legal Affairs, July/August 2002.

6. For example, see Sofaer and Cox, War, Foreign Affairs, and Constitutional Power; Schoenfeld, Necessary Secrets; Rozell, Executive Privilege, chaps. 1–2; Knott, Secret and Sanctioned, chaps. 1–2. Also see Halperin v. CIA, 629 F. 2d 144, 154–62 (D.C. Cir. 1980); Casper, “Government Secrecy and the Constitution,” 924–26; Hamilton and Inouye, Report, chap. 13.

7. On Greece see Starr, Political Intelligence in Classical Greece; Gerolymatos, Espionage and Treason; Russell, Information Gathering in Classical Greece. On Rome see Austin and Rankov, Exploratio; Sheldon, Intelligence Activities in Ancient Rome. On the Framers’ sources see McDonald, The American Presidency, 74–89.

8. Evans, The Principal Secretary of State, 10–12.

9. Hutchinson, Elizabeth’s Spy Master, appendix 1; Evans, The Principal Secretary of State, 8. Also see Beale, “A Treatise,” 428; Hughes, “Nicholas Faunt’s Discourse,” 502.

10. Firth, “Thomas Scot’s Account”; Evans, The Principal Secretary of State, 113.

11. Firth, “Thurloe and the Post Office,” 532; Peacey, Politicians and Pamphleteers, 227.

12. Maffeo, Most Secret and Confidential, 4.

13. Knott, Secret and Sanctioned, 29, 35–37.

14. Hoffman, for instance, has written that republican movements of the seventeenth and eighteenth centuries “tended to brand governmental secrecy as an outmoded relic of absolutist, aristocratical regimes” and thus saw it as “intrinsically wrong” (Hoffman, Governmental Secrecy, 12–13). Also see Kitrosser, “Secrecy and Separated Powers,” 520–21.

15. Mattingly, Renaissance Diplomacy, 52–53, 57–58, 96–97. Also see Machiavelli, “Confidential Instructions,” 422, 425.

16. Guicciardini, Dialogue on the Government of Florence, 61. This concern had also been raised in Bruni, History of the Florentine People, 3:247.

17. Harrington, The Commonwealth of Oceana, 126, 129–30.

18. Nedham, The Excellencie of a Free State, 100–102.

19. Milton, The Ready and Easy Way to Establish a Free Commonwealth, 22.

20. Hutcheson, A Short Introduction to Moral Philosophy, 248.

21. Hume, “Idea of a Perfect Commonwealth,” 229.

22. Price, Political Writings, 79–80.

23. Paley, The Principles of Moral and Political Philosophy, 209.

24. Donaldson, Machiavelli and the Mystery of State, 132–39. For examples from the Renaissance see Guicciardini, Maxims and Reflections, 108; Botero, The Reason of State, 47.

25. Theodorus Verax [Clement Walker], Relations and Observations, 4–5, 118, 181–82. Also see Lewalski, The Life of John Milton, 275.

26. Milton, “A Defence of the People of England,” 61; Nedham, The Excellencie of a Free State, 102–3. For precursors see Bodin, On Sovereignty, 60; Guicciardini, The History of Italy, 2:255.

27. Sidney, Discourses Concerning Government, 12–13, and chap. 2, sec. 23. Sidney was responding to Filmer, Patriarcha and Other Writings, 3–4.

28. Jeremy Bentham, “A Plan for an Universal and Perpetual Peace,” in Bentham, The Works, 2:559.

29. Ibid., 560. Bentham is better known today for his later, more pragmatic, view of state secrecy, which is that publicity ought to be “suspended” where it is calculated to “favor the projects of an enemy” (Bentham, Political Tactics, 39. Also see Bentham, Constitutional Code, 1:165). More generally see Conway, “Bentham on Peace and War.” For a wider survey of the literature see Hinsley, Power and the Pursuit of Peace, chaps. 1–5; Howard, War and the Liberal Conscience, chap. 1.

30. Hamilton, Madison, and Jay, The Federalist, 68 (hereafter cited as The Federalist); James Madison, “Universal Peace,” in Madison, The Writings, 6:88.

31. Commager, for instance, has claimed that “the generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to” (The Defeat of America, 87). Also see Berger, Executive Privilege, 207.

32. Adams, “Thoughts on Government,” 404.

33. Demophilus [George Bryan?], “The Genuine Principles of the Ancient Saxon or English Constitution,” 353.

34. Parsons, “The Essex Result,” 489.

35. Ford, Journals of the Continental Congress, 2:22, 3:342–43; Committee of Secret Correspondence to Arthur Lee, December 12, 1775, in Wharton, Diplomatic Correspondence, 2:63; Robarge, Intelligence in the War of Independence, 12.

36. In May 1784, Congress overwhelmingly approved a resolution moved by Thomas Jefferson declaring all diplomatic correspondence be “considered, at all times, as under an injunction of secrecy, except as to such parts of them as Congress shall, by special permission, allow to be published or communicated” (Ford, Journals of the Continental Congress, 26:331–32). For a critical view see Samuel Adams to Arthur Lee, April 21, 1783, in Adams, The Writings, 4:281–82.

37. Articles of Confederation, Article IX.

38. George Washington to James Madison, March 31, 1787, in Washington, The Writings, 11:132–33.

39. George Washington to Henry Knox, February 3, 1787, in Washington, The Writings, 11:111. For a broader survey see Wood, The Creation of the American Republic, chaps. 12–13.

40. The Federalist, 12–13. More generally see Tarcov, “The Federalists and Anti-Federalists on Foreign Affairs.”

41. The Federalist, 68.

42. Ibid., 196.

43. Ibid., 342.

44. Parsons, “The Essex Result,” 489–90.

45. Ibid., 501. This observation did not, however, lead Parsons to recommend eliminating secrecy. The preservation of society, he emphasized, required an executive capable of “secrecy and expedition.” Instead, he advised that the “respective excellencies be united”—that a powerful executive be balanced by a wise and public-spirited legislative body (490–91).

46. Adams, “Election Sermon,” 549.

47. United States Constitution, Article I, §5, Cl. 3.

48. Elliot, Debates, 2:469.

49. Ibid., 4:72.

50. Ibid., 2:76.

51. Ibid., 3:61.

52. Ibid., 84.

53. Ibid., 170.

54. Ibid., 233.

55. Ibid., 315–16.

56. Ibid., 331. Evidently the latter view carried the day, as none of the amendments proposed by the state conventions challenged Congress’s right to employ secrecy as it saw fit. See, for example, ibid., 1:330, 336; 4:245.

57. Ibid., 3:409.

58. Ibid., 34. Also see Randolph, “Letter on the Federal Constitution,” 267–68.

59. Jay, The Correspondence, 3:223, 226.

60. Farrand, Records, 1:70. However, Madison’s Notes and William Pierce’s Notes do not report Wilson mentioning secrecy (Farrand, Records, 1:65, 73–74).

61. According to King’s Notes, John Dickinson argued on June 6 that “secrecy, vigour, and dispatch, are not the properties of [republics]—we cannot have them in that form.” However, Madison’s Notes report Dickinson saying that “secrecy, vigor, and dispatch are not the principal properties [required] in the executive,” but that they are “important” nonetheless (Farrand, Records, 1:140, 144, emphases added).

62. Ibid., 112. Mason appears not to have delivered the speech he prepared on this subject, but others at the convention were doubtless aware of his views on the subject.

63. Ibid., 113.

64. Ibid., 66.

65. Ibid., 2:541–42.

66. Ellsworth, “The Landholder, VI,” 163. For Wilson’s views see Farrand, Records, 1:70. Also see Ramsay, The History of the American Revolution, 1:448.

67. Elliot, Debates, 4:104. Davie was echoing here arguments that Dickinson had made in the convention (Farrand, Records, 1:140, 144).

68. Farrand, Records, 3:269; 1:140, 144; The Federalist, 346.

69. The Federalist, 252.

70. Ibid., 123.

71. For an overview see Ford, Journals of the Continental Congress, 23:769– 70, 792–93, 814–19, 863–65; David Howell to John Carter, October 16, 1782, in Smith, Letters of Delegates to Congress, 19:268.

72. Ford, Journals of the Continental Congress, 23:814–16.

73. Ibid., 868. For another sharp critique see Samuel Osgood to John Lowell, January 6, 1783, in Smith, Letters of Delegates to Congress, 19:545–46. But also see Jonathan Arnold to William Greene, December 8, 1782, in Smith, Letters of Delegates to Congress, 19:458–59, 492.

74. Ford, Journals of the Continental Congress, 23:812, 818.

75. Jonathan Arnold to William Greene, December 6, 1782, in Smith, Letters of Delegates to Congress, 19:458–59; David Howell to John Carter, January 6, 1783, in Smith, Letters of Delegates to Congress, 19:538; Jonathan Arnold to William Greene, January 8, 1783, in Smith, Letters of Delegates to Congress, 19:562. For the wider context see Polishook, Rhode Island and the Union, 88–92.

76. The Federalist, 263.

77. Ibid., 366–67.

78. Farrand, Records, 2:260.

79. Ibid., 538.

80. Ibid.

81. Ibid., 613. A similar proposal put forward on August 11 by Madison and John Rutledge had also been defeated by a large margin (ibid., 259–60).

82. Elliot, Debates, 3:509. Also see 4:263.

83. Ibid., 4:280. His colleague David Ramsay concurred. Should the House, he asked, be trusted with the power of making treaties? “When sixty-five men can keep a secret, they may” (Ramsay, “An Address,” 376).

84. Elliot, Debates, 2:469. Also see Ramsay, “An Address,” 376.

85. Elliot, Debates, 4:281, 265.

86. The Federalist, 314. Jay was not alone in making this point. See the views expressed by William Davie and John Pringle of North Carolina (Elliot, Debates, 4:119–20, 269).

87. The Federalist, 315.

88. Richardson, Compilation, 1:148–49, 446–47; 4:2530.

89. Rawle, A View of the Constitution, 160.

90. Story, Commentaries on the Constitution, 2:377.

91. For important examples see Hoffman, Governmental Secrecy, 152–58, 184–96.

92. Annals of Congress, 4th Cong., 1st Sess., 1796, 435–36.

93. Tucker, View of the Constitution, 111.

94. Kerr, The Origin and Development of the United States Senate, 40. Also see Annals of Congress, 3rd Cong., 1st Sess., 1794, 34, 47.

95. Richardson, Compilation, 1:152.

96. Ibid., 194–95.

97. For an exhaustive list see Department of Justice, “Is a Congressional Committee Entitled to Demand and Receive Information?” reprinted in Hearing Before the Subcommittee on Constitutional Rights of the Committee of the Judiciary, 85th Congress, 2nd Sess., 1958, Appendix No. 11, pt. 1; Ramsey and Daniels, “Selected Cases,” appendix 17, pt. 1. For a magisterial analysis of these disputes see the two-volume Sofaer and Cox, War, Foreign Affairs, and Constitutional Power; and Rozell, Executive Privilege.

98. Kent, Commentaries on American Law, 1:285.

99. Annals of Congress, 4th Cong., 1st Sess., 1796, 773.

100. Congressional Debates, 19th Cong., 1st Sess., 1826, 174.

101. Congressional Globe, 28th Cong., 1st Sess., 1844, 98.

102. Ibid., 100.

103. Annals of Congress, 4th Cong., 1st Sess., 1796, 438, 773.

104. Von Holst, The Constitutional and Political History of the United States, 3:56.

105. Congressional Debates, 19th Cong., 1st Sess., 1826, 1265.

106. Ibid., 1270.

107. Ibid., 1282, 1272.

108. Register of Debates in Congress (Washington, DC: Gales and Seaton, 1825), vol. 7, 2nd Sess., 21st Cong., 233–34, 293–94. On the disclosure of the Jay Treaty see Dennis, “Stolen Treaties and the Press,” 6–8. Also see Haynes, The Senate of the United States, 2:665.

109. Register of Debates, vol. 7, 2nd Sess., 21st Cong., 294.

110. Richardson, Compilation, 4:2416–17.

111. Von Holst, The Constitutional and Political History of the United States, 3:56. Another prominent scholar would write soon after that contests between Congress and the president “as to the right of the former to compel the furnishing to it of information as to specific matters” had “practically established that the President may exercise a full discretion as to what information he will furnish, and what he will withhold” (Willoughby, The Constitutional Law of the United States, 3:1167).

112. Consider here Alexis de Tocqueville’s observation that the United States “has no enemies, and its interests are only rarely in contact with those of other nations.” These conditions, he wrote, left the United States with relatively little need for the vigorous exercise of executive power. Though “the laws permit him to be strong,” Tocqueville famously wrote of the president, “circumstances keep him weak” (Democracy in America, 118–19, 123).

113. Lieber, On Civil Liberty and Self-Government, 130.

114. Ibid.

115. For an overview see McNeil, “The Evolution of the U.S. Intelligence Community,” 5; Relyea, “The Evolution,” 15.

116. O’Toole, Honorable Treachery, 106. Also see Sayle, “Historical Underpinnings of the U.S. Intelligence Community,” 13–16. For a concise survey of the “secret agents” utilized during this period see Writson, Executive Agents in American Foreign Relations, 692–744. For an in-depth study of covert action during this period see Knott, Secret and Sanctioned.

117. O’Toole, Honorable Treachery, 106.

118. Relyea, “The Evolution,” 2–3.

119. Sofaer, “Executive Power,” 48.

120. Richardson, Compilation, 4:434. The statute establishing the Contingent Fund, which was used to finance intelligence activities, permitted the president to withhold details of an expenditure by issuing a certificate in lieu of receipts.

121. Sofaer, “Executive Power,” 48. Polk, for example, had great difficulty conducting secret diplomacy with Mexico because the press kept exposing his initiatives. On this see Nelson, “Secret Agents and Security Leaks.”

122. Silbey, Storm over Texas, 40–41, 45–46.

123. For an overview these battles see Smith, War and Press Freedom, chap. 5.

124. “The Philippine Murder Will Out,” Nation 69, no. 1787 (1899): 236. For the cable see Pettigrew, The Course of Empire, 676–84. Also see Harold Martin, “The Manila Censorship,” Forum 31 (1901).

125. Schlesinger, Imperial Presidency, 333.

126. Senate Executive Journal, 6:273.

127. According to one recent study, Congress asked more than two hundred journalists to reveal their sources, and incarcerated at least ten of them for failing to cooperate (see Kielbowicz, “The Role of News Leaks,” 441). Those incarcerated included John Nugent of the New York Herald in 1848 and Zebulon White of the New York Tribune in 1871 (Senate Executive Journal, 7:372–73; Congressional Globe, 42nd Cong., 1st Sess., 1871, 885). Nugent’s incarceration served only to reveal the depth of the problem after the Herald retaliated by publishing a list of “leaky Senators” who, it claimed, had served as sources for rival publications (on this see Marbut, News from the Capital, 92). The House had earlier used the same tactic against Nathaniel Rounsavell of the Alexandria Herald after President Madison’s communiqué regarding an embargo prior to the War of 1812 found its way into that newspaper (Annals of Congress, 12th Cong., 1st Sess., 1812, 1255–74). On these episodes see Byrd, Hall, and Wolff, The Senate, 438–40; Dennis, “Stolen Treaties and the Press,” 9–11.

128. Ritchie, Press Gallery, 166–69

129. Bryce, The American Commonwealth, 1:48.

130. Wilson, Congressional Government, xi. Also see Van Dyke, The American Birthright and the Philippine Pottage, 10.

131. Wilson, Congressional Government, xi–xii. For the original forecast see Federalist No. 8.

132. Congressional Record, 59th Cong., 1st Sess., 1906, 2130.

133. Ibid.

134. Ibid., 2142.

135. Ibid., 2143.

136. Mazzini, “On Publicity in Foreign Affairs,” 169–76; Kossuth, “Speech before the Corporation of London,” 40–41; Kossuth, Select Speeches of Kossuth, 16; Constant, “Principles of Politics,” 232; Guizot, General History of Civilization in Europe, 1:238; Guizot, The History of the Origins of Representative Government in Europe, 63, 69, 80–81, 296. More generally see Hinsley, Power and the Pursuit of Peace, chap. 6; Howard, War and the Liberal Conscience, 30–38. Perhaps the most revered importer of these ideas was Alexis de Tocqueville, who famously observed that should the United States immerse itself in international affairs, there would be some major complications to contend with, because a democracy “is hardly capable of combining measures in secret and of patiently awaiting their result” (Democracy in America, 219).

137. Root, The Effect of Democracy on International Law, 8–9. Root was hardly alone in taking this view. For example, see Moore, The Principles of American Diplomacy, 426–27; Straus, “Democracy and Open Diplomacy,” 157, 349; Van Dyke, Fighting for Peace, 3–4.

138. Wilson, “Address to the League to Enforce Peace,” 118–19; Wilson, “Fourteen Points,” 404. Also see Lippmann, The Stakes of Diplomacy, 195; Dewey, Lectures in China, 170; Dickinson, The Choice before Us, chap. 13; Alexander, Liberty and Democracy, 39; Reinsch, Secret Diplomacy, 178. For a broader discussion of the coalition in favor of this view see Lippmann, The Political Scene, 43.

139. Reinsch, Secret Diplomacy, 173–74.

140. Bryce, Modern Democracies, 371.

141. Ibid., 382.

142. Ibid. Also see Root, “A Requisite for the Success of Popular Democracy,” 12.

143. Corwin, The President’s Control of Foreign Relations, 205; Wright, The Control of American Foreign Relations, 368; Friedrich, Constitutional Government and Politics, 39, 418–19; Laski, The American Presidency, 177.

144. Lippmann, Liberty and the News, 59–60.

145. Ibid., 60.

146. Wright, The Control of American Foreign Relations, 371–72. Also see Sutherland, Constitutional Power and World Affairs, 125–28.

147. Poole, The Conduct of Foreign Relations under Modern Democratic Conditions, 160–68.

148. Lippmann, Liberty and the News, 64.

149. Lippmann, Public Opinion, 248–49, 398–402.

150. Ibid., 392.

151. Graves, “The Value of a Free Press,” 175; Martin, “A Plea for an Uncensored Press,” 364.

152. Congressional Record, 65th Cong., 1st Sess., 1917, 831–37, 1592, 1594, 1602–3, 1698–99, 1705–6, 1716, 1719, 1764, 1769, 1773–74, 1808, 2119–20, 3133, 3140. Also see Blasi, “The Checking Value.”

153. Congressional Record, 65th Cong., 1st Sess., 1917, 833–34, 881, 1603, 1751, 1754, 1762, 2011, 2339, 3080, 3135. As Representative Charles B. Smith informed Representative Edwin Webb, the sponsor of the Espionage Act, it was wrong to assume that critics of the act were “opposed to restraining newspapers”; they were only “opposed to this particular way”—namely, using prior restraint (ibid., 1812).

154. Andrew, For the President’s Eyes Only, 29; Relyea, “The Evolution,” 75–119.

155. Godfrey, “Intelligence in the United States,” 446–47. Also see O’Toole, Honorable Treachery, 345; Andrew, For the President’s Eyes Only, 83–84.

156. Andrew, For the President’s Eyes Only, 29, 133; Ransom, Central Intelligence and National Security, 52.

157. Stuart, Creating the National Security State, 7. “In contrast to our custom in the past of letting the intelligence function die when the war was over,” Allen Dulles would later write, it was “allowed to grow to meet the ever-widening and more complex responsibilities of the time” (Craft of Intelligence, 46).

158. Morrissey, Disclosure and Secrecy, 8–19; Mayer, With the Stroke of a Pen, 142–48.

159. Hearings Before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate, 85th Cong., 2nd Sess., 1958, 271. Brownell was drawing here on Wolkinson, “Demands of Congressional Committees for Executive Papers.”

160. For an overview see Chesney, “State Secrets,” 1270–83.

161. United States v. Reynolds, 345 U.S. 1, 10–11 (1953).

162. Lasswell, National Security and Individual Freedom, 40.

163. Parks, “Secrecy and the Public Interest in Military Affairs,” 36.

164. Dahl, A Preface to Democratic Theory, 70, 73; Coser, “Government by Secrecy,” 59.

165. Chafee, Government and Mass Communications, 1:13–14.

166. Lasswell, National Security and Individual Freedom, 92.

167. Chafee, Government and Mass Communications, 14. Also see Goldschmidt, “Publicity, Privacy, and Secrecy,” 414.

168. Rourke, Secrecy and Publicity, 6.

169. Gerth and Mills, From Max Weber, 233. Also see Coser, “Government by Secrecy,” 58.

170. Defense Department Committee on Classified Information, Report to the Secretary of Defense, 7, 16

171. Commission on Government Security, Report of the Commission on Government Security, 688.

172. Chafee, Government and Mass Communications, 14.

173. Rourke, Secrecy and Publicity, 79.

174. Cross, The People’s Right to Know; Wiggins, Freedom or Secrecy. For an overview of this history see Archibald, “The Early Years of the Freedom of Information Act.”

175. Wiggins, “Government Operations and the Public’s Right to Know,” 188.

176. Moss, “Introduction,” 101.

177. Hennings, “The Executive Privilege and the People’s Right to Know,” 116.

178. The Freedom of Information Act, Pub. L. 89-487, July 4, 1966, 80 Stat. 250 (codified as amended at 5 USC §552(6)(b)(1)).

179. Senate Committee on the Judiciary, Clarifying and Protecting the Right of the Public to Information and for Other Purposes, S. Rep 88-1219 (Washington, DC: GPO, 1964), 8.

180. Hearings Before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate, 85th Cong., 2nd Sess., 1958, Part 1, 455.

181. McGrain v. Daugherty, 272 U.S. 135, 175 (1927).

182. Smist, Congress Oversees, 5. Also see Ransom, “Congress and the Intelligence Agencies,” 160; Johnson, “The CIA and the Question of Accountability,” 180. David Barrett has argued that oversight during this period was informal rather than absent, but he concurs in the assessment that the “barons” in charge of oversight favored granting the president wide leeway on intelligence matters (Barrett, “An Early ‘Year of Intelligence,’ ” 497–98. Also see Barrett, The CIA and Congress, 458–61; Snider, The Agency and the Hill, 6–11, 17–20).

183. R. W. Apple, “Lessons from the Pentagon Papers,” New York Times, June 23, 1996. Also see Daniel Ellsberg, “Lying about Vietnam,” New York Times, June 29, 2001. For a contrary view see Leslie H. Gelb, “Misreading the Pentagon Papers,” New York Times, June 29, 2001.

184. Ely, War and Responsibility, 102.

185. Kutler, The Wars of Watergate, 218–22.

186. Seymour Hersh, “Huge C.I.A. Operation Reported in U.S. against Antiwar Forces, Other Dissidents in Nixon Years,” New York Times, December 22, 1974.

187. Schlesinger, Imperial Presidency, 317, 329.

188. Bickel, Morality of Consent, 80–81.

189. Henkin, “The Right to Know and the Duty to Withhold,” 280.

190. Schlesinger, Imperial Presidency, 344.

191. Ibid., 353, 349. Also see Halperin and Hoffman, “Secrecy and the Right to Know,” 134.

192. Schlesinger, Imperial Presidency, 343, 357.

193. Kaiser, “Congress and the Intelligence Community,” 282–84.

194. Ibid., 296–97.

195. Treverton, “Intelligence,” 89.

196. Deyling, “Judicial Deference,” 67.

197. Koh, The National Security Constitution, 167–69, 171–73.

198. Bok, Secrets, 174, 180.

199. Commission on Protecting and Reducing Government Secrecy, Report of the Commission on Protecting and Reducing Government Secrecy, S. Rep 105-2, 103rd Cong., xxii–xxiii.

200. Ibid., xxii.

201. Senate Select Committee on Intelligence, Report of the Select Committee on Intelligence on the U.S. Intelligence Community’s Prewar Intelligence Assessments on Iraq, S. Rep. 108-301, 108th Cong., 485.

202. Ibid., 481.

203. Sheryl Gay Stolberg, “Senators Left Out of Loop Make Their Pique Known,” New York Times, May 19, 2006.

204. Pallitto and Weaver, Presidential Secrecy and the Law, 16–17.

205. Chesney, “State Secrets,” 1271. Also see Herman, Taking Liberties, 204–6.

206. Phil Mattingly and Hans Nichols, “Obama Pursuing Leakers Sends Warning to Whistle-Blowers,” Business Week, October 17, 2012, online at http://tinyurl.com/d8hmyjf.

207. Stone, “Government Secrecy vs. Freedom of the Press,” 195.

208. Schoenfeld, Necessary Secrets, 267; BeVier, “The Journalist’s Privilege,” 472.

Chapter 2
Should We Rely on Judges?

1. Aftergood, “Reducing Government Secrecy,” 407–9; Wells, “State Secrets and Executive Accountability,” 642; Pozen, “Deep Secrecy,” 324.

2. Pozen, “Deep Secrecy,” 270.

3. Wells, “State Secrets and Executive Accountability,” 642–43.

4. Clark, “Architecture of Accountability,” 395–96. Consider as well Lawrence Walsh’s complaint that Attorney General Richard Thornburgh’s support for the CIA’s refusal to acknowledge the existence of intelligence facilities in Latin America—facilities that were already known to the public—thwarted the independent counsel’s prosecution of a CIA official who had tried to cover up the Iran-Contra affair (“Secrecy and the Rule of Law,” 587).

5. Thompson, Political Ethics, 23–24.

6. Luban, “Publicity Principle,” 157. Also see Wells, “State Secrets and Executive Accountability,” 646. For a discussion on the consequences of dissent see Shane, Madison’s Nightmare, 106–7.

7. Thompson, Political Ethics, 24–26.

8. Ibid., 24.

9. “Declaration of Steven Aftergood,” July 20, 2004, located online at http://tinyurl.com/8uyprjr.

10. Aftergood v. Central Intelligence Agency, 355 F. Supp. 2d 557, 563 (D.D.C. 2005). Also see Wolf v. CIA, 473 F. 3d 370, 375–76 (D.C. Cir. 2007); Larson v. Department of State, 565 F. 3d 857, 864–65 (D.C. Cir. 2009).

11. Armstrong, “The War over Secrecy.” Also see Armstrong v. Bush, 924 F. 2d 282, 294–95 (D.C. Cir. 1991); Kissinger v. Reporters Committee, 445 U.S. 136, 167–68 (1980).

12. Stanley I. Kutler, “Bush’s Secrecy Fetish,” Chicago Tribune, January 2, 2002.

13. EPA v. Mink, 410 US 73, 80 (1973).

14. 5 U.S.C. § 552(b)(1); 5 U.S.C. § 552(b)(3).

15. For an overview see Department of Justice, “Statutes Found to Qualify under Exemption 3 of the FOIA,” located online at http://www.justice.gov/oip/exemption3.pdf.

16. EPA v. Mink, 94–95.

17. Freedom of Information Act Amendments, H. Rep. No. 93-1380, 93rd Cong., 2nd Sess., 1974, 226, 229, emphases added.

18. Weissman v. CIA, 565 F.2d 692, 697 (D.C. Cir. 1977).

19. Halperin v. CIA, 148–50.

20. Ibid., 150.

21. CIA v. Sims, 471 US 159, 179 (1985), emphasis added.

22. Fitzgibbon v. CIA, 578 F.Supp. 704, 710–11 (D.D.C. 1983).

23. Fitzgibbon v. CIA, 911 F.2d 755, 762 (D.C. Cir. 1990).

24. Ibid., 766.

25. For an overview see Department of Justice, Guide to the FOIA, 141–58. Also see Center for National Security Studies v. DOJ, 331 F.3d 918, 927–28 (D.C. Cir. 2003).

26. Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C. Cir.1983).

27. United States v. Reynolds, 11, emphasis added.

28. Ibid., 8–9.

29. Ibid., 10.

30. Ibid.

31. Ibid.

32. Chesney, “State Secrets,” 1287–88; Fisher, “The State Secrets Privilege,” 397.

33. Jabara v. Kelley, 75 F.R.D. 475, 10 (E.D. Mich. 1977).

34. Ibid., 8.

35. Ibid., 11.

36. Halkin v. Helms, 598 F. 2d 1, 8 (D.C. Cir. 1978).

37. Ibid., 5.

38. Ibid., 8.

39. Ibid., 9, internal citations omitted, emphasis added. Here the Halkin court was drawing on United States v. Nixon, 418 US 683, 710 (1974).

40. Kasza v. Browner, 133 F. 3d 1159, 1163 (9th Cir. 1998).

41. Ibid., 1165.

42. Ibid., 1168.

43. Ibid., 1170.

44. Mohamed v. Jeppesen Dataplan, Inc., 563 F. 3d 992, 1000 (9th Cir. 2009).

45. Ibid., 1003.

46. Ibid., 1003–4. Also see In re United States, 872 F. 2d 472, 478 (D.C. Cir. 1989).

47. Mohamed v. Jeppesen Dataplan, Inc., 1006–7.

48. Ibid., 1007. A faint precedent can be discerned in Spock v. United States, 464 F. Supp. 510, 519–20 (S.D.N.Y. 1978).

49. Mohamed v. Jeppesen Dataplan, Inc., 614 F. 3d 1070, 1090 (9th Cir. 2010).

50. Ibid.

51. Ibid., 1088.

52. Ibid., 1089.

53. Fisher, “The State Secrets Privilege,” 408. Also see Weaver and Pallitto, “State Secrets and Executive Power,” 90.

54. Chesney, “National Security Fact Deference,” 1435.

55. United States v. United States Dist. Court, 407 US 297, 320–21 (1972). Also see Zagel, “The State Secrets Privilege,” 886; Weaver and Pallitto, “State Secrets and Executive Power,” 98; Berger, Executive Privilege, 370.

56. Ellsberg v. Mitchell, 58, fn. 31. Also see United States v. United States Dist. Court, 321.

57. Sterling v. Tenet, 416 F. 3d 338, 343–44 (4th Cir. 2005).

58. Mohamed v. Jeppesen Dataplan, Inc., 1089.

59. El-Masri v. United States, 479 F. 3d 296, 305 (4th Cir. 2007). Also see Ellsberg v. Mitchell, 58, fn. 31.

60. Samaha, “Government Secrets,” 958.

61. On this see Chesney, “National Security Fact Deference,” 1410; Wald, “Two Unsolved Constitutional Problems,” 760.

62. Yoo, “Courts at War,” 597.

63. Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 996–97 (N.D. Cal. 2006); ACLU v. NSA, 438 F. Supp. 2d 754, 765–66 (E.D. Mich. 2006). Both the decisions were overturned on appeal.

64. Fuchs and Webb, “Greasing the Wheels of Justice,” 3–5.

65. Fuchs, “Judging Secrets,” 175; Pozen, “The Mosaic Theory,” 677–78.

66. Chesney, “State Secrets,” 1313–14. Also see Halstuk, “Holding the Spymasters Accountable,” 131; “The Military and State Secrets Privilege,” 580–81.

67. Fuchs and Webb, “Greasing the Wheels,” 5.

68. Ibid.

69. Ibid.; Pozen, “The Mosaic Theory,” 678.

70. “The Cost of Doing Your Duty,” New York Times, October 11, 2006.

71. Department of Navy v. Egan, 484 US 518, 529–30 (1988). Also see Berkowitz and Goodman, Best Truth, xi.

72. Weatherhead v. United States, 157 F. 3d 735, 740 (9th Cir. 1998).

73. Ibid., 737.

74. Ibid., 742.

75. Ibid., 743.

76. Ibid.

77. Weatherhead v. United States, 112 F. Supp. 2d 1058, 1062–63 (E.D. Wash. 2000).

78. Chicago & Southern Air Lines, Inc. v. Waterman SS Corp., 333 US 103, 111 (1948).

79. Electronic Privacy Information Center, “Foreign Intelligence Surveillance Act Court Orders 1979–2011,” online at http://epic.org/privacy/wiretap/stats/fisa_stats.html. Also see Minnow, “The Lesser Evil,” 2153–54; Telman, “Our Very Privileged Executive,” 509–10.

80. “Justice in the Shadows,” New York Times, September 12, 2002.

81. Ballou and McSlarrow, “Plugging the Leak”; Fenster, “The Opacity of Transparency,” 947.

82. Yoo, “Courts at War,” 598.

83. Ibid., 597–98

84. Frost, “The State Secrets Privilege”; Chesney, “State Secrets,” 1311–12.

85. Wells, “Questioning Deference,” 947–48; Telman, “Our Very Privileged Executive,” 516–17; Frost, “The State Secrets Privilege,” 1953.

86. Frost, “The State Secrets Privilege,” 1960–61.

87. Gutmann and Thompson, Democracy and Disagreement, 103. The concepts of shallow and deep secrecy originated with Scheppele, Legal Secrets, 21–22.

88. Gutmann and Thompson, Democracy and Disagreement, 103. Also see Bok, Secrets, 202–3.

89. Gutmann and Thompson, Democracy and Disagreement, 121.

90. Ibid.

91. Phillippi v. CIA, 546 F. 2d 1009, 1013 (D.C. Cir. 1976).

92. Cozen O’Connor v. U.S. Dep’t of Treasury, 570 F. Supp. 2d 749, 765 (E.D. Pa. 2008); Vaughn v. Rosen, 484 F. 2d 820, 826–27 (D.C. Cir. 1973).

93. Phillippi v. CIA, 1013.

94. Vaughn v. Rosen, 826–27.

95. Phillippi v. CIA, 1012.

96. Ibid., 1013. The D.C. Circuit eventually went on to clarify in Hayden v. NSA (1979) that judges have the authority to disclose “nonsensitive portions” of a classified affidavit. Note, however, that if judges believe they are not qualified to assess the potential harm stemming from the disclosure of classified records, then presumably they are unlikely to consider themselves qualified to assess the harm that may ensue from the disclosure of classified affidavits either.

97. Ibid.

98. Hayden v. NSA, 608 F.2d 1384-85 (D.C.Cir.1979). For recent examples see Edmonds v. FBI, 272 F. Supp. 2d 35, 46–47 (D.C. Dir. 2003); Bassiouni v. CIA, 392 F. 3d 244, 245 (7th Cir. 2004).

99. Gardels v. CIA, 689 F. 2d 1100, 1104 (D.C. Cir. 1982). Also see Miller v. Casey, 730 F.2d 773, 776 & 778 (D.C. Cir. 1984); Hunt v. CIA, 981 F. 2d 1116, 1119–20 (9th Cir. 1992); Wolf v. CIA, 473 F. 3d 370, 375–77 (D.C. Cir. 2007).

100. Gardels v. CIA, 1106.

101. Halkin v. Helms, 690 F. 2d 977, 992 (D.C. Cir. 1982).

102. Ibid., 992, emphasis added.

103. Ibid., 993.

104. Ellsberg v. Mitchell, 60–61.

105. Ibid., 63–64.

106. Ibid., 58.

107. Chesney, “National Security Fact Deference,” 1411, 1419.

108. Pozen, “The Mosaic Theory,” 679.

109. United States v. United States Dist. Court, 320.

110. Department of Justice, Guide to the FOIA, 147.

111. Horn v. Huddle, Civil Action No. 94–1756 (RCL) (D.D.C. 2009). Also see Del Quentin Wilber, “U.S. District Court Judge Rules Withheld CIA Info in Suit Was Fraud,” Washington Post, July 21, 2009.

112. Horn v. Huddle, 2, fn. 2.

113. Kreimer, “The Freedom of Information Act and the Ecology of Transparency”; Kreimer, “Rays of Sunlight in a Shadow War.” For a broader analysis see Rosenblum, “Constitutional Reason of State,” 162–63; Herman, Taking Liberties, 211–14.

114. Kreimer, “The Freedom of Information Act and the Ecology of Transparency,” 1077.

Chapter 3
Should We Rely on Congress?

1. Clark, “Architecture of Accountability,” 404; Ransom, “A Half Century of Spy Watching,” 188; Shane Harris, “The CIA Briefing Game,” National Journal, June 6, 2009.

2. Snider, Sharing Secrets, 53–54.

3. Snider, The Agency and the Hill, chaps. 7–9. Also see Aberbach, Keeping a Watchful Eye, 40–41.

4. Johnson, “The CIA and the Question of Accountability,” 190–91. Also see Commission on the Roles and Capabilities of the United States Intelligence Community, Preparing for the 21st Century: An Appraisal of U.S. Intelligence (Washington, DC: GPO: 1996).

5. Treverton, “Intelligence,” 93.

6. Johnson, “Congress, the Iraq War, and the Failures of Intelligence Oversight,” 188.

7. Johnson, “The Church Committee Investigation of 1975,” 198.

8. Final Report of the National Commission on Terrorist Attacks upon the United States, 420–21; Commission on the Roles and Capabilities of the United States Intelligence Community, 144. Also see Posner, Uncertain Shield, 174–76.

9. Smist, Congress Oversees, 91–93. Also see Ott, “Partisanship and the Decline of Intelligence Oversight,” 87.

10. Devins, “Congressional-Executive Information Access Disputes,” 108–9, 121–22. Also see Schmitt, “Executive Privilege,” 178; Rozell, Executive Privilege, 160–64.

11. Crockett, “Executive Privilege,” 227. Also see Fisher, Congressional Access to Executive Branch Information.

12. Thompson, Political Ethics, 26.

13. Department of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described by the President (Washington, DC, January 19, 2006), 2, online at http://www.justice.gov/opa/whitepaperonnsalegalauthorities.pdf.

14. Thompson, Political Ethics, 29.

15. Devins, “Congressional-Executive Information Access Disputes,” 109–16.

16. Bishop, “The Executive’s Right to Privacy,” 485. Also see Patterson, To Serve the President, 80.

17. Holt, Secret Intelligence and Public Policy, 226, 234; Sofaer, “Executive Privilege,” 293–94.

18. Cited in Halperin and Hoffman, Top Secret, 99.

19. Banks and Raven-Hansen, National Security Law and the Power of the Purse, 178.

20. Hearings Before the Subcommittee on Intergovernmental Relations of the Committee on Government Operations, 94th Cong., 1st Sess., 1975, 122–23 (Statement of Antonin Scalia).

21. Koh, The National Security Constitution, 59–60; Smist, Congress Oversees, 122–23.

22. Johnson, “A Shock Theory,” 345.

23. Kean and Hamilton, Without Precedent, chap. 4.

24. Ibid., 90.

25. Aberbach, Keeping a Watchful Eye, 87–88.

26. Snider, Sharing Secrets, 17, 35–36.

27. The term “executive privilege” refers to the right of the president to withhold certain kinds of official information from the other branches of government. This includes information pertaining to internal deliberations (increasingly referred to as a “deliberative process privilege”), which may be withheld from both of the other branches, and information concerning national security, which may be withheld from Congress alone (national security information is withheld from the courts under a different title—the “state secrets privilege”). I focus here solely on the latter aspect of executive privilege, i.e., the president’s right to withhold national security information from Congress. For an overview of the different aspects of the privilege see Breckenridge, The Executive Privilege, 12; Sagar, “Executive Privilege.”

28. On precedent see Brownell, “Memorandum,” appendix 13, 272; Rozell, Executive Privilege, 28. For a rebuttal see Schwartz, “A Reply to Mr. Rogers,” 468; Prakash, “A Critical Comment,” 1180. On original intent see Rozell, Executive Privilege, 19–28; Schmitt, “Executive Privilege,” 173–77. For a rebuttal see Prakash, “A Critical Comment,” 1173–77; Berger, Executive Privilege, chap. 6; Kitrosser, “Secrecy and Separated Powers,” 510–22. On implied powers see Crockett, “Executive Privilege,” 217; Rozell, Executive Privilege, 23–26; Dixon, “Congress, Shared Administration and Executive Privilege,” 130–34. For a rebuttal see Fisher, The Politics of Executive Privilege, 233; Prakash, “A Critical Comment,” 1151–69.

29. United States v. A.T&T, 567 F.2d 121 (D.C. Cir. 1977); United States v. A.T&T, 551 F.2d 384 (D.C. Cir. 1976). Also see Fein, “Access to Classified Information,” 835–43; Rozell, Executive Privilege, 81–82; Fisher, The Politics of Executive Privilege, 246–47. There is some support for the executive privilege in two cases. In the Pentagon Papers case Justice Potter Stewart opined that “it is the constitutional duty of the Executive—as a matter of sovereign prerogative and not as a matter of law as the courts know law—through the promulgation and enforcement of executive regulations, to protect the confidentiality necessary to carry out its responsibilities in the fields of international relations and national defense” (New York Times Co. v. United States, 403 U.S. 713, 729–30 (1971)). And in Department of Navy v. Egan the court declared that the president’s authority to control information bearing on national security flows primarily from his role as commander-in-chief, “and exists quite apart from any explicit congressional grant” (484 U.S. 518, 527 (1988)). However, these declarations are far from conclusive. As Louis Fisher has pointed out, neither case explicitly addresses the question of whether the Constitution precludes Congress from seeking unrestricted access to national security information. Moreover, opinions in both cases indicate that Congress is entitled to make laws regulating the classification system. Such laws could presumably include provisions granting members of Congress unrestricted access to national security information (Fisher, The Politics of Executive Privilege, 242–43. Also see Brooks, The Protection of Classified Information, 2).

30. Rogers, “Constitutional Law,” 1011; Kilbourne v. Thompson, 103 U.S. 191 (1880).

31. Rogers, “Constitutional Law,” 1011–12. Also see Hearings Before the Subcommittee on Intergovernmental Relations of the Committee on Government Operations, 108–10 (Statement of Antonin Scalia).

32. Schwartz, “A Reply to Mr. Rogers,” 526.

33. Crockett, “Executive Privilege,” 217. Also see Rozell, Executive Privilege, 23–26; Schmitt, “Executive Privilege,” 162–76.

34. Crockett, “Executive Privilege,” 211.

35. The Federalist, 342. Also see The Federalist, 314.

36. Wharton, Diplomatic Correspondence, 2:151–52. Franklin and Morris had just discovered that word of Congress’s plan to send Franklin and others to negotiate a treaty of alliance with France had begun to circulate, less than a week after Congress had specifically enjoined its members from discussing the particulars of the mission lest the British take measures to intercept the delegation (Ford, Journals of the Continental Congress, 5:827. Also see Committee of Secret Correspondence to Silas Deane, October 2, 1776, in Smith, Letters of Delegates to Congress, 5:288–89). For additional examples see John Jay to Robert Morris, October 6, 1776, in Wharton, Diplomatic Correspondence, 2:165; George Washington to James Duane, May 14, 1780, in Washington, The Writings, 8:265–66.

37. Hearings Before the Subcommittee on Separation of Powers of the Committee on the Judiciary, 92nd Cong., 1st Sess., 1971, 424 (Statement of William Rehnquist).

38. Posner and Vermeule, “The Credible Executive,” 885; Pozen, Deep Secrecy, 331.

39. Wilson, The Works, 1:294.

40. For an overview see Kaiser, Protection of Classified Information by Congress.

41. Gravel v. United States, 408 U.S. 606, 626 (1972). In 1975 Senator Gravel read out excerpts from a classified memorandum on the floor of the Senate before a closed session could reach a decision on whether he ought to be allowed to do so (Hamilton and Inouye, Report, 577).

42. Smist, Congress Oversees, 136. There are numerous examples of this variety. See Barrett, “An Early ‘Year of Intelligence,’ ” 476 (disclosure of intelligence on Soviet space capabilities); Crabb and Holt, Invitation to Struggle, 171 (disclosure of covert operations in the Congo); Jake Tapper, “Bush Scolds Congress,” Salon, October 9, 2001, online at http://tinyurl.com/96h5pu9 (disclosure of plans for the invasion of Afghanistan).

43. As Jeremy Bentham observes, in a parliamentary setting, “whatever the conduct of an individual may be, he will almost always be secure in the suffrages of one party, in opposition to the other” (Political Tactics, 30).

44. “Congressman Avoids Inquiry into U.S.-Iraq Disclosures,” New York Times, September 20, 1992; Clark, “Congress’s Right to Counsel in Intelligence Oversight,” 945; Martin Tolchin, “Inquiry into U.S. Aid to Iraq Urged,” New York Times, May 18, 1992. The first censure issued in the Senate’s history is instructive on this front. In 1811 Senator Timothy Pickering introduced during an open session a letter that President Jefferson had previously communicated to the Senate in confidence. Pickering introduced the letter (which argued that West Florida was not included in the Louisiana Purchase) with the intention of embarrassing President Madison, who had recently proclaimed West Florida a part of the Louisiana Purchase. The Democratic-Republicans retaliated by seizing on Pickering’s use of confidential material and subsequently moved to censure him on the grounds that “if the President could not have some degree of security that documents confidentially communicated to the Congress. … would not be disclosed; must not all reliance on the Senate be lost?” To this Pickering’s Federalist colleagues replied that he was “not the first” to use confidential documents to make a point in a Senate debate. “What we have acquiesced in when done by others, should be tolerated in him,” said Senator Samuel Dana (Annals of Congress, 11th Cong., 3rd Sess., 1811, 67). The Democratic-Republicans piously voiced horror at this line of reasoning. “If it is a common practice to divulge secret proceedings,” Senator Richard Brent declared, “it is necessary to put a stop to a course so disgraceful and ruinous to the country” (ibid., 72). For an overview of this episode see Hoffman, Governmental Secrecy, 247–48.

45. Cited in Greenstein, The Hidden-Hand Presidency, 205.

46. Kitrosser, “Congressional Oversight of National Security Activities,” 1075; Pozen, “Deep Secrecy,” 331. In fact Congress has struggled with unauthorized disclosures from its earliest days. Following disclosures by Senators Steven Mason in 1795, Thomas Pickering in 1811, and Benjamin Tappan in 1844, the Senate resolved that members who divulged confidential documents were liable to “suffer expulsion” (Senate Executive Journal, 6:273). But this threat was soon shown to be utterly ineffective. In 1848 and 1854, two treaties with Mexico under consideration in the Senate were leaked. Then again in 1869 and 1871, the confidential correspondence of John Hale, the United States’ minister in Spain, and the Treaty of Washington with Great Britain were disclosed (McClendon, “Violations of Secrecy,” 38–40, 43–44; Congressional Globe, 41st Cong., Special Sess., 1869, 30–31). The Senate responded to these violations of its “honor” by attempting to trace the perpetrators, but to little avail. In 1884, for example, no fewer than five confidential treaties found their way into the press (McClendon, “Violations of Secrecy,” 45–46. Also see Haynes, The Senate of the United States, 2:667–68). Not surprisingly, then, by the close of the nineteenth century observers were writing that “whatever the [Founding] Fathers may have intended, the executive sessions of the Senate have come to be mere farces,” as they are “always reported, and even more fully than the open debates” (Reinsch, Readings on American Federal Government, 179).

47. Koh, The National Security Constitution, 173; Fisher, The Politics of Executive Privilege, 250. Also see Berger, Executive Privilege, 288–89.

48. Hyde, “Leaks and Congressional Oversight,” 147.

49. Knott, Secret and Sanctioned, 178.

50. Johnson, “Intelligence and the Challenge of Collaborative Government,” 180.

51. Knott, Secret and Sanctioned, 178.

52. Bishop, “The Executive’s Right to Privacy,” 486.

53. Ibid.

54. Wheeler and Healy, Yankee from the West, 387–88.

55. Smist, Congress Oversees, 134.

56. Woodward, Veil, 136–38.

57. Ibid., 138.

58. Smist, Congress Oversees, 316–17; “Loose Lips Sink Trust in Congress,” Chicago Tribune, July 16, 1987.

59. Smist, Congress Oversees, 316; Dorothy Collin, “Aspin, Michael Trade Barbs on Gulf-Escort Disclosures,” Chicago Tribune, July 16, 1987.

60. Calhoun, “Confidentiality and Executive Privilege,” 178. For additional examples see Hamilton and Inouye, Report, chap. 13; Clark, “Congress’s Right to Counsel in Intelligence Oversight,” 941–49.

61. Colton, “Speaking Truth to Power,” 599–600.

62. “Keeping Secrets,” 906.

63. Koh, The National Security Constitution, 167–69, 171–73; Kitrosser, “Congressional Oversight of National Security Activities,” 1071–72. Also see Berger, Executive Privilege, 291–93.

64. Allan Lengel and Dana Priest, “Investigators Conclude Shelby Leaked Message,” Washington Post, August 5, 2004.

65. Graham and Nussbaum, Intelligence Matters, 140.

66. Letter from Senator Jay Rockefeller to Vice President Richard Cheney, July 17, 2003, online at http://www.fas.org/irp/news/2005/12/rock121905.pdf. Also see Nancy Pelosi, “The Gap in Intelligence Oversight,” Washington Post, January 15, 2006; Clark, “ ‘A New Era of Openness?’ ” 319; Pfiffner, Power Play, 176.

67. Halperin and Hoffman, Top Secret, 98–100.

68. Kitrosser, “Congressional Oversight of National Security Activities,” 1072.

69. “About That Rebellion,” New York Times, March 11, 2006.

70. Ackerman, “The Emergency Constitution,” 1051.

71. Ibid., 1052. Also see Levinson and Pildes, “Separation of Parties, Not Powers,” 2374–75.

72. Scheppele, “We Are All Post-9/11 Now,” 619. Also see Katyal, “The Internal Separation of Powers,” 2341–42.

73. Scheppele, “We Are All Post-9/11 Now,” 618–19.

74. Minnow, “The Constitution as Black Box during Emergencies,” 597–98. Also see Chanley, “Trust in Government in the Aftermath of 9/11,” 469–83.

75. For an overview of the difficulties that can arise see Blechman and Ellis, The Politics of National Security, 151; Johnson, Secret Agencies, 136.

76. Crabb and Holt, Invitation to Struggle, 172–73.

77. Smist, Congress Oversees, 265–66.

78. Quoted in Blechman and Ellis, The Politics of National Security, 156.

79. Scott Shane, “Democrats Say C.I.A. Deceived Congress,” New York Times, July 8, 2009; Scott Shane, “News of Surveillance Is Awkward for Agency,” New York Times, December 22, 2005.

80. For example, see David Gordon Smith and Kristen Allen, “Electronic Surveillance Scandal Hits Germany,” Der Spiegel, October 10, 2011; Matthias Gebauer, “Interior Ministry Ordered Destruction of Intelligence Files,” Der Spiegel, July 19, 2012.

81. Smist, Congress Oversees, 176–86; Knott, Secret and Sanctioned, 176–77; Block and Rivkin, “The Battle to Control the Conduct of Foreign Intelligence and Covert Operations,” 327, 344. Also see Smist, Congress Oversees, 110.

82. For example, see Helms, Empire for Liberty, 69–70.

83. Commission to Assess the Ballistic Missile Threat to the United States, Report; Eric Schmitt, “Panel Says U.S. Faces Risk of a Surprise Missile Attack,” New York Times, July 16, 1998.

84. Michael Dobbs, “How Politics Helped Redefine Threat,” Washington Post, January 14, 2002; Diamond, The CIA and the Culture of Failure, 251–60; Graham, Hit to Kill, 47–51; Hartung, Prophets of War, 200–202.

85. Orman, Presidential Secrecy and Deception, 207.

86. Pallitto and Weaver, Presidential Secrecy, 215–16; Berger, Executive Privilege, 381–82; Dorsen and Shattuck, “Executive Privilege, the Congress and the Courts,” 174–75.

87. United States v. A.T&T, 551 F.2d 384, 385 (D.C. Cir. 1976); United States v. AT&T, 567 F.2d 121, 123 (D.C. Cir. 1977).

88. United States v. AT&T, 123.

89. Smist, Congress Oversees, 319–20.

90. Schmitt, “Executive Privilege,” 181–82.

91. United States v. AT&T, 123.

92. See the discussion in Cox, The Myths of National Security, 161–65.

93. Snider, “Congressional Oversight of Intelligence after September 11,” 242–46.

94. I owe this formulation to Dennis Thompson.

95. Minnow, “The Constitution as Black Box during Emergencies,” 604–5.

96. Kitrosser, “Congressional Oversight of National Security Activities,” 1085–86.

97. Clark, “Congress’s Right to Counsel in Intelligence Oversight,” 958–59.

98. McCubbins and Schwartz, “Congressional Oversight Overlooked.” Also see Johnson, “A Shock Theory,” 345.

Chapter 4
Should the Law Condone Unauthorized Disclosures?

1. Information Security Oversight Office, Briefing Booklet: Classified Information Nondisclosure Agreement (Washington, DC: NARA, 2001), 5. Also see 32 C.F.R. 2003.

2. National Federation of Federal Employees v. United States, 695 F. Supp. 1196, 13 (D.D.C. 1988).

3. Ibid., 14.

4. 50 U.S.C. § 403(d)(3). Also see Headley, “Secrets, Free Speech, and Fig Leaves,” 75.

5. Marchetti and Marks, The CIA and the Cult of Intelligence.

6. United States v. Marchetti, 466 F.2d 1309, 32 (4th Cir. 1972).

7. Ibid., 31. Also see Knopf v. Colby, 509 F. 2d 1362, 1370 (4th Cir. 1975).

8. Snepp, Decent Interval.

9. Snepp v. United States, 444 U.S. 507, 516, fn. 3 (1980). Also see McGehee v. Casey, 718 F.2d 1137 (D.C. Cir. 1983); Stillman v. CIA, 517 F. Supp. 2d 32 (D.D.C. 2007); Berntsen v. CIA, 05-1482 (D.D.C. 2009).

10. 18 U.S.C. § 952; 18 U.S.C. § 798(a); 50 U.S.C. § 421(a); 42 U.S.C. § 2274(b), 2014.

11. 18 U.S.C. §641; 18 U.S.C. § 793. In particular, §793(d) of the Espionage Act threatens up to ten years imprisonment for any person who, being “lawfully” entrusted with documents or information “relating to the national defense … willfully communicates … the same to any person not entitled to receive it.”

12. United States v. Morison, 844 F. 2d 1057, 61 (4th Cir. 1988).

13. Ibid., 31, 61. More generally see Dmitrieva, “Stealing Information.”

14. 18 U.S.C. § 793(g). For an overview see Vladeck, “Inchoate Liability and the Espionage Act,” 231–32; Lee, “Probing Secrets.” In a recent leak investigation, a Fox News reporter was described as a “co-conspirator,” but he was not actually charged as such. On this see “Another Chilling Leak Investigation,” New York Times, May 21, 2013.

15. 18 U.S.C. § 793(e).

16. Recently in United States v. Rosen, 445 F. Supp. 2d 629 (E.D. Va. 2006), two lobbyists were prosecuted under the Espionage Act after they sought and received classified information from a Defense Department employee. When the lobbyists sought cover under the First Amendment, Judge Thomas Ellis responded that while “the collection and discussion of information about the conduct of government by defendants and others in the body politic is indispensable to the healthy functioning of a representative government,” it remains the case that “both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.” As this case involved neither reporters nor information that revealed wrongdoing, its implication for the kind of case we are interested in here is unclear. But see Lee, “Probing Secrets,” 171–72; Epstein, “Balancing National Security and Free-Speech Rights,” 504–5; “Prosecuting the Press,” 1013–15.

17. Branzburg v. Hayes, 408 U.S. 665, 24 (1972).

18. Siegel, “Trampling on the Fourth Estate,” 507. Also see 28 C.F.R. § 50.10.

19. Lee, “Probing Secrets,” 162. Prosecutors can also utilize secret subpoenas, as they did in a recent investigation into a leak to the Associated Press. On this see Charlie Savage and Leslie Kaufman, “Phone Records of Journalists Seized by U.S.,” New York Times, May 13, 2013.

20. In Re Special Counsel Investigation, 332 F. Supp. 2d 26 (D.D.C. 2004); In Re Special Counsel Investigation, 338 F. Supp. 2d 16 (D.D.C. 2004).

21. Pearlstine, Off the Record, chap. 6.

22. In Re Grand Jury Subpoena, 397 F.3d 964, 968–72 (D.C. Cir. 2005). In New York Times Company v. Gonzales, 459 F.3d 160, 38–40, 48 (2nd Cir. 2007), and United States v. Sterling, No. 1:10cr485, 2011 WL 4852226 at 13–15 (E.D. Va. 2011), support has been voiced for the idea that there is a qualified reporter’s privilege based in common law. But even in these cases it has been affirmed that a qualified privilege will be overcome when the information sought from reporters is vital to the prosecution’s case and is not obtainable from other sources.

23. Near v. Minnesota 283 U.S. 697, 29 (1931).

24. New York Times Co. v. United States, 714.

25. Ibid., 720.

26. Ibid., 730, 732.

27. United States v. Progressive, 486 F. Supp. 5, 7 (W.D. Wis. 1979).

28. 42 U.S.C. § 2280.

29. United States v. Progressive, 467 F. Supp. 990, 994 (W.D. Wis. 1979).

30. Ibid., 1000.

31. See the discussion in New York Times Co. v. United States, 721, 730, 734– 38, 745, 752, 754. Also see 18 U.S.C. § 794(b); 18 U.S.C. § 797.

32. Ibid., 738–39. For a recent affirmation of Justice White’s position see United States v. Rosen, 638–39.

33. For example, see New York Times Co. v. United States, 730, 745, 751, 759.

34. Ibid., 721.

35. The scholarly literature has reproduced this dispute. For instance, Harold Edgar and Benno Schmidt have argued that the Espionage Act was never intended to be applied to publishers and that appearances to the contrary are the result of poor draftsmanship, whereas Richard Posner has argued that publication is “obviously” a form of communication, and that therefore the publication of damaging leaks ought to be treated as a violation of the Espionage Act (see Edgar and Schmidt, “The Espionage Statutes and the Publication of Defense Information,” 1033; Posner, Not a Suicide Pact, 109).

36. On this see Interdepartmental Group on Unauthorized Disclosures of Classified Information, Report; Hurt, “Leaking National Security Secrets,” 9–18.

37. Bruce, “How Leaks of Classified Intelligence Help U.S. Adversaries,” 400; Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, Report, 381. Also see Hamilton and Inouye, Report, 578.

38. Stanley Johnston, “Navy Had Word of Jap Plan to Strike at Sea,” Chicago Tribune, June 7, 1942.

39. Frank, “The United States v. the Chicago Tribune.” Also see Schoenfeld, Necessary Secrets, 135–39.

40. Aid, The Secret Sentry, 152–53; Andrew, For the President’s Eyes Only, 359.

41. Katherine Graham, “Safeguarding Our Freedoms As We Cover Terrorist Acts,” Washington Post, April 19, 1986. For additional examples see David Ignatius, “When Does Blowing Secrets Cross the Line?” Washington Post, July 2, 2002; Cater, “News and the Nation’s Security,” 26–27; Xanders, “A Handyman’s Guide to Fixing National Security Leaks,” 783; Abel, Leaking, 36.

42. Bovens, The Quest for Responsibility, 150–51, 195.

43. Dallek, Nixon and Kissinger, 350–52; Isaacson, Kissinger, 380–90. For another episode see Feldstein, Poisoning the Press, chap. 8.

44. Kitrosser, “Classified Information Leaks,” 885; Cheh, “Judicial Supervision of Executive Secrecy,” 731; Ballou and McSlarrow, “Plugging the Leak,” 885.

45. Stone, “Free Speech and National Security,” 961; Coliver, “Commentary on the Johannesburg Principles,” 63–68.

46. Katz, “Government Information Leaks,” 121.

47. Kitrosser, “Classified Information Leaks,” 896; Ballou and McSlarrow, “Plugging the Leak,” 885; Stone, “Free Speech and National Security,” 961.

48. Borjesson, Feet to the Fire, 211.

49. Nelson, U.S. Government Secrecy, 23. Also see Greg Miller, “CIA Looks to Los Angeles for Would-Be Iranian Spies,” Los Angeles Times, January 15, 2002.

50. Nelson, U.S. Government Secrecy, 23. For another example see Aldrich, “Regulation by Revelation,” 31–32.

51. Knopf v. Colby, 1368.

52. Katz, “Government Information Leaks,” 145; Stone, War and Liberty, 154.

53. As Charles Fried has recently observed, “We would have left the rule of law far behind if any individual could take it upon himself to break the law in defense of his personal view of what the Constitution demands” (Charles Fried, “Why Leakers Should Be Punished,” New York Times June 18, 2012). Also see Bovens, The Quest for Responsibility, 167–68.

54. BeVier, “The Journalist’s Privilege,” 475.

55. Nelson, U.S. Government Secrecy, 25. Also see Tim Weiner, “CIA Re-examines Hiring of Ex-Terrorist as Agent,” New York Times, August 21, 1995.

56. As the media critic Renata Adler has observed, in recent decades the role played by anonymous disclosures has come to be “precisely reversed.” Where once the purpose of providing sources with confidentiality was to allow the powerless to speak up without fearing retaliation from the powerful, she writes, more recently “almost every ‘anonymous source’ in the press … has been an official of some kind, or a person in the course of a vendetta speaking from a position of power” (Canaries in the Mineshaft, 27). Also see Overholser, “The Seduction of Secrecy,” 35–36; Klaidman and Beauchamp, The Virtuous Journalist, 197–99; Abel, Leaking, 61.

57. On the Lee case see Matthew Purdy and James Sterngold, “The Prosecution Unravels: The Case of Wen Ho Lee,” New York Times, February 5, 2001. On the Hatfill case see Eric Lichtblau, “Scientist Officially Exonerated in Anthrax Attacks,” New York Times, August 8, 2008; Nicholas D. Kristof, “Media’s Balancing Act,” New York Times, August 28, 2008. On the Plame case see Barton Gellman and Dafna Linzer, “A ‘Concerted Effort’ to Discredit Bush Critic,” Washington Post, April 9, 2006; Maureen Dowd, “Woman of Mass Destruction,” New York Times, November 10, 2005.

58. Eric Boehlert, “How the New York Times Helped Railroad Wen Ho Lee,” Salon, September 21, 2000, online at http://tinyurl.com/8urxu6x. The relevant cases are Lee v. Department of Justice, 413 F.3d 53 (D.C. Cir. 2005); Hatfill v. Ashcroft, 404 F. Supp. 2d 104 (D.D.C. 2005); In Re Special Counsel Investigation, 332 F. Supp. 2d 26 (D.D.C. 2004).

59. Michael Gordon and Judith Miller, “U.S. Says Hussein Intensifies Quest for A-Bomb Parts,” New York Times, September 8, 2002. For other cases see Finnegan, No Questions Asked, chap. 4; Hoyle, Going to War, chap. 16. More generally see Isikoff and Corn, Hubris.

60. Massing, “Now They Tell Us.”

61. Supporting Intelligence and Law Enforcement Programs, H. Res. 895, 109th Cong., 2006.

62. For one such proposal see Morse, “Honor or Betrayal?” 445–46.

63. Department of Justice, “Access to Classified Information,” November 26, 1996; Department of the Navy v. Egan, 527. Also see New York Times Co. v. United States, 729–30.

64. House Permanent Select Committee on Intelligence, Intelligence Community Whistleblower Protection Act of 1998, H. Rep. 105747, 105th Cong., 2nd Sess., 1998. Also see Senate Permanent Select Committee on Intelligence, The Disclosure to Congress Act of 1998, S. Rep. 105-165, 105th Cong., 2nd Sess., May 20, 1998 (Statement of Randolph D. Moss).

65. “S. 372, The Whistleblower Protection Enhancement Act of 2009,” Hearing Before the Senate Homeland Security and Governmental Affairs Committee, 111th Cong., 1st Sess., 2009, 52–54 (Statement of Danielle Brian).

66. Wheeler and Healy, Yankee from the West, 33–34; “Media Incentives and National Security Secrets,” 2242, fn. 102. Also see Ritchie, Reporting from Washington, 22.

67. Knott, “Executive Power and the Control of American Intelligence,” 174.

68. Levinson, Outspoken, chap. 1; Tim Weiner, “Guatemalan Agent of CIA Tied to Killing of American,” New York Times, March 23, 1995.

69. Jason DeParle, “Bob and Bianca to the Rescue,” New York Times, June 4, 1995.

70. Katz, “Government Information Leaks,” 110–11, fn. 5.

71. Prewar Intelligence Assessments on Iraq, 484–85 (Additional views of Senator Dianne Feinstein).

72. Sunstein, “Government Control of Information,” 904. Also see Kitrosser, “Classified Information Leaks,” 905–16; Posner, Not a Suicide Pact, 110.

73. Henkin, “The Right to Know and the Duty to Withhold,” 278–79. Also see BeVier, “An Informed Public,” 512–14.

74. Stone, “Free Speech and National Security,” 961.

75. Kitrosser, “Classified Information Leaks,” 913–15.

76. New York Times Co. v. United States, 722–23, fn. 3, 762–63,

77. Kitrosser, “Classified Information Leaks,” 913.

78. United States v. Progressive, 996.

79. Ibid., 998.

80. “Press: Letter Bomb,” Time, October 1, 1979. The outcome in Progressive also gives courts a strong prudential reason to refrain from adjudicating unauthorized disclosures, as they have increasingly few means in the Internet Age to compel publishers to obey their orders.

81. Report of the Commission on the Intelligence Capabilities of the United States, 381.

82. Bruce, “How Leaks of Classified Intelligence Help U.S. Adversaries,” 402; Ballou and McSlarrow, “Plugging the Leak,” 801–2.

83. Olmstead, Challenging the Secret Government, 73.

84. For an overview of the complexity see the discussion in Military Audit Project v. Casey, 656 F. 2d 724 (D.C. Cir. 1981) and Phillippi v. Central Intelligence Agency, 655 F. 2d 1325 (D.C. Cir. 1981).

85. Olmstead, Challenging the Secret Government, 73.

86. Ibid., 70.

87. “The Great Submarine Snatch,” Time, March 31, 1975; Schwartz, Atomic Audit, 248.

88. Colby, Honorable Men, 418.

89. This is not a hypothetical. During World War II legal action against the Chicago Tribune was dropped out of concern that a high-profile prosecution would lead the Japanese to change codes that the navy had recently cracked (Schoenfeld, Necessary Secrets, 137–38). Similarly, in 1975 the Ford administration decided not to press charges against Seymour Hersh for revealing Operation Holystone, a secret submarine-based surveillance program, lest this alert the Soviets (Olmstead, Challenging the Secret Government, 75–76).

90. Betts, Enemies of Intelligence, 181.

91. Martin Sieff, “Terrorist Is Driven by Hatred for U.S., Israel,” Washington Times, August 21, 1998.

92. Benjamin and Simon, The Age of Sacred Terror, 261.

93. Final Report of the National Commission on Terrorist Attacks upon the United States, 127.

94. Keefe, “The Challenge of Global Intelligence Listening,” 25, fn. 9.

95. Hoekstra, Secrets and Leaks, 2; David E. Rosenbaum, “Bush Account of a Leak’s Impact Has Support,” New York Times, December 20, 2005.

96. Jack Shafer, “Don’t Blame the Washington Times,” Slate, December 21, 2005, online at http://tinyurl.com/chdkdnt.

97. Glenn Kessler, “File the Bin Laden Phone Leak under ‘Urban Myths,’ ” Washington Post, December 22, 2005; Glenn Kessler, “On Leaks, Relying on a Faulty Case Study,” Washington Post, December 23, 2005.

98. Bergen, The Osama Bin Laden I Know, 397.

99. Bill Gertz and Rowan Scarborough, “Inside the Ring,” Washington Times, December 23, 2005.

100. Kessler, “File the Bin Laden Phone Leak Under ‘Urban Myths.’ ”

101. Gertz and Scarborough, “Inside the Ring.”

102. Porter Goss, “Loose Lips Sink Spies,” Washington Post, February 10, 2006.

Chapter 5
Should We Rely on Whistleblowers?

1. As Frederick Elliston has pointed out, the Code of Ethics for United States Government Service states that a government employee should “put loyalty to the highest moral principles and to country above loyalty to persons, party or Government department” (Elliston, “Civil Disobedience and Whistleblowing,” 25). Note also that the rules governing the classification system instruct that information shall not be classified in order to “conceal violations of law, inefficiency, or administrative error” or to “prevent embarrassment to a person, organization, or agency” (President Barack H. Obama, “Executive Order 13526, Classified National Security Information,” Federal Register, vol. 75 (January 5, 2010), 707).

2. Bickel, Morality of Consent, 115. Also see Gutmann and Thompson, Ethics and Politics, 93.

3. As Arthur Applbaum has argued, there is “one circumstance under which appeal to the legitimate authority of the elected politician is not sufficient to demand of a public servant obedience to role, and that is when the elected politician … acts without legitimate authority” (“The Remains of the Role,” 554). Also see Applbaum, Ethics for Adversaries, 228–29. Or as Mark Bovens has contended, “indiscretion and disloyalty are justifiable only when the rule of law is thereby served” (Bovens, The Quest for Responsibility, 169).

4. Stone, “Government Secrecy vs. Freedom of the Press,” 195–96. Also see Bruce Ackerman, “Protect, Don’t Prosecute, Patriotic Leakers,” New York Times, June 12, 2012.

5. For the reasons discussed in chapter 3 the president would not be obligated to make lawmakers aware of these circumstances if he believes a renegade lawmaker might disclose this information, disregarding not only the president’s wishes but also those of his fellow lawmakers.

6. De George, “Whistleblowing,” 137–38.

7. Because dissenters “act against the judgments of the many,” Applbaum writes, they “must practice a special sort of humility, seek whatever wisdom is available, and safeguard against overconfidence or special pleading in their own judgments by taking cooler counsel” (Applbaum, Ethics for Adversaries, 238).

8. Schoenfeld, Necessary Secrets, 262–63. Also see BeVier, “The Journalist’s Privilege,” 483.

9. Johnson, Whistleblowing, 107. Also see Morse, “Honor or Betrayal?” 449.

10. James, “In Defense of Whistleblowing,” 318.

11. Thompson, Political Ethics, 30; Morse, “Honor or Betrayal?” 446.

12. James, “In Defense of Whistleblowing,” 318. Also see Elliston, “Anonymous Whistleblowing,” 50.

13. Bok, “Whistleblowing and Professional Responsibilities,” 336.

14. Ibid. Also see McConnell, “Whistleblowing,” 572–73.

15. Bok, “Whistleblowing and Professional Responsibilities,” 336; Scharf, “On Terrorism and Whistleblowing,” 579–80.

16. Elliston, “Anonymous Whistleblowing,” 52; James, “In Defense of Whistleblowing,” 318.

17. James, “In Defense of Whistleblowing,” 319. Also see Elliston, “Anonymous Whistleblowing,” 50; Callahan, Dworkin, and Lewis, “Whistleblowing,” 907.

18. Rawls, A Theory of Justice, 366; Walzer, Obligations, 20–21; Gutmann and Thompson, Ethics and Politics, 93. Kent Greenawalt emphasizes the importance of openness not necessarily during the act, but subsequently, as a step toward submitting to legal processes (Greenawalt, Conflicts of Law and Morality, 238–40).

19. Bovens, The Quest for Responsibility, 195.

20. Martin, Meaningful Work, 141. Also see Bok, Secrets, 212–13.

21. Martin, Meaningful Work, 144.

22. De George, “Whistleblowing,” 139–40; McConnell, “Whistleblowing,” 578. As the latter summarizes, “the greater the sacrifice, the more likely it is that blowing the whistle is supererogatory.”

23. Glazer and Glazer, The Whistleblowers, 11–12. For an overview of the legal context see Moberly, “Whistleblowers and the Obama Presidency,” 89–111.

24. Begg, “Whistleblower Law and Ethics,” 192–93.

25. 5 U.S.C. § 2302(a)(2)(C)(ii). Also see Sasser, “Silenced Citizens,” 780–81.

26. 5 U.S.C. § 2302(b)(8)(A)(ii). Also see Vaughn, “Statutory Protection of Whistleblowers,” 630–31.

27. 5 App. U.S.C § 7(a).

28. 5 App. U.S.C § 7(c). 50 U.S.C. § 403(q) extends similar protection to employees of the CIA. More generally see Fisher, National Security Whistleblowers, 9–12.

29. 5 App. U.S.C § 8H(h)(C).

30. Vladeck, “The Espionage Act and National Security Whistleblowing after Garcetti,” 1546. Also see Bowman, “Whistle-Blowing in the Public Service,” 273–75.

31. Johnson, Whistleblowing, 100. For a number of pertinent examples see Foerstel, Free Expression and Censorship in America, 232–36.

32. Levy and Scott-Clark, Deception, 160–63; Seymour M. Hersh, “On the Nuclear Edge,” New Yorker, March 29, 1993.

33. Levy and Scott-Clark, Deception, 202–3.

34. Ibid.

35. Adrian Levy and Cathy Scott-Clark, “The Man Who Knew Too Much,” Guardian, October 13, 2007; Fisher, In the Name of National Security, 246–48.

36. Lyndsey Layton, “Whistleblower’s Fight for Pension Drags On,” Washington Post, July 7, 2007.

37. A number of similar cases are discussed in “National Security Whistleblowers in the Post–September 11th Era: Lost in a Labyrinth and Facing Subtle Retaliation,” Hearing Before the Subcommittee on National Security, Emerging Threats, and International Relations of the House Committee on Government Reform, 109th Cong., 2nd Sess., February 14, 2006.

38. David Rose, “An Inconvenient Patriot,” Vanity Fair, August 15, 2005; David Kohn, “Lost in Translation,” CBS News, September 10, 2009, online at http://tinyurl.com/d2etd6z.

39. “A Review of the FBI’s Actions in Connection with Allegations Raised by Contract Linguist Sibel Edmonds,” Report of the Department of Justice Inspector General (Washington, DC: Department of Justice, July 1, 2004), 31.

40. Edmonds v. Department of Justice, 323 F. Supp. 2d 65 (D.D.C. 2004).

41. James V. Grimaldi, “2 FBI Whistle-Blowers Allege Lax Security, Possible Espionage,” Washington Post, June 19, 2002; Chris Gourlay, Jonathan Calvert, and Joe Lauria, “For Sale: West’s Deadly Nuclear Secrets,” Sunday Times, January 6, 2008.

42. “A Review of the FBI’s Actions,” 31. Also see Eric Lichtblau, “Inspector General Rebukes F.B.I. over Espionage Case and Firing of Whistle-Blower,” New York Times, January 15, 2004.

43. “A Review of the FBI’s Actions,” 31.

44. Edmonds v. Department of Justice, 546 U.S. 1031 (2005).

45. Given that the evidence in these cases is classified, we cannot be certain that either Barlow or Edmonds actually identified abuses of authority. Barlow, for instance, may have failed to sufficiently weigh the strategic constraints that the Reagan administration faced, i.e., the need to placate Pakistan. Similarly, in Edmonds’s case, it is conceivable that the FBI allowed suspected Turkish spying to continue in order to fully ascertain the nature and extent of the enterprise. In the absence of evidence, it would be unwise to presume either guilt or innocence.

46. Miceli, Near, and Dworkin, Whistleblowing in Organizations, 23–24, 28; U.S. Merit Systems Protection Board, The Federal Workforce for the 21st Century, 35.

47. Near and Miceli, “Organizational Dissidence,” 13.

48. Ibid.

49. Ibid., 8.

50. Ibid., 6. Also see Bovens, The Quest for Responsibility, 198, 206.

51. “S. 372, The Whistleblower Protection Enhancement Act of 2009,” 83 (Statement of Thomas Devine).

52. Jos, Tompkins, and Hays, “In Praise of Difficult People,” 557; Miceli, Near, and Dworkin, Whistleblowing in Organizations, 22.

53. Government Accountability Project, The Art of Anonymous Activism, 20; Truelson, “Whistleblowers and Their Protection,” 294.

54. Project on Government Oversight, Homeland and National Security Whistleblower Protections, 8.

55. Fisher, National Security Whistleblowers, 21; Project on Government Oversight, Homeland and National Security Whistleblower Protections, 25; Truelson, “Whistleblowers and Their Protection,” 295–97.

56. Fisher, National Security Whistleblowers, 21.

57. “S. 372, The Whistleblower Protection Enhancement Act of 2009,” 86–87 (Statement of Thomas Devine).

58. Department of the Navy v. Egan, 484 U.S. 527 (1988).

59. Project on Government Oversight, Homeland and National Security Whistleblower Protections, 26; “National Security Whistleblowers,” 240–41 (Statement of Mark Zaid). President Obama recently issued a directive prohibiting retaliation that allows a national security whistleblower to request review by a multi-agency inspector general panel of the revocation of her security clearance (Barack Obama, “Protecting Whistleblowers with Access to Classified Information,” Presidential Policy Directive/PPD-19, Washington, DC: The White House, October 10, 2012, online at http://tinyurl.com/awl8tz9). The directive has not been received enthusiastically because, as critics point out, external review depends on the approval of the agency’s inspector general, and the panel’s report goes to the head of the agency, the person responsible for revoking the whistleblower’s security clearance in the first place (on this see “National Security Whistleblowers Not Effectively Protected by New White House Directive,” Washington, DC: National Whistleblowers Center, October 11, 2012 online at http://tinyurl.com/ae9cz7p).

60. Truelson, “Whistleblowers and Their Protection,” 285–86; Ellsberg, “Secrecy and National Security Whistleblowing,” 781.

61. Hersh, Chain of Command, chap. 2; Daniel Schorn, “Exposing the Truth of Abu Ghraib,” CBS News, December 10, 2006, online at http://tinyurl.com/aexrhqd; Cockburn, Rumsfeld, 193–95.

62. Dawn Bryan, “Abu Ghraib Whistleblower’s Ordeal,” BBC News, August 5, 2007, online at http://tinyurl.com/c76h984; Joe Darby, “Why I Had to Tell the World What They’d Done,” Sunday Times, August 5, 2007.

63. Bryan, “Abu Ghraib Whistleblower’s Ordeal”; Randi Kaye, “Abu Ghraib Whistleblower: ‘I Lived in Fear,’ ” CNN, August 15, 2006, online at http://tinyurl.com/d7om58c.

64. Bryan, “Abu Ghraib Whistleblower’s Ordeal.”

65. Hanna Rosin, “When Joseph Comes Marching Home,” Washington Post, May 17, 2004.

66. Dawn Bryan, “Abu Ghraib Whistleblower’s Ordeal.”

67. For example, see William Safire, “The Crowley Memo,” New York Times, May 27, 2002.

68. James Risen and David Johnston, “Agent Complaints Lead F.B.I. Director to Ask for Inquiry,” New York Times, May 24, 2002.

69. Amanda Ripley and Maggie Sieger, “Coleen Rowley: The Special Agent,” Time, December 30, 2002, 40; Michael Kilian, “Ashcroft: Whistle-Blower’s Job Is Safe,” Chicago Tribune, June 3, 2002. Also see Coleen Rowley, “The Wrong Side of ‘Us vs. Them,’ ” Minneapolis Star Tribune, October 12, 2003.

70. Ripley and Sieger, “Coleen Rowley,” 37.

71. Vaughn, “Statutory Protection of Whistleblowers,” 663.

72. Bovens, The Quest for Responsibility, 213.

73. Ibid.

74. Miceli, Near, and Dworkin, Whistleblowing in Organizations, 15.

75. The difficulties involved in challenging adverse personnel decisions are discussed in Brookner, Piercing the Veil. Also see Peter Carlson, “Counter Intelligence,” Washington Post, March 10, 2004.

76. Glazer and Glazer, The Whistleblowers, 255. Also see Robinson, Deceit, Delusion, and Detection, 284–87; Jos, Tompkins, and Hays, “In Praise of Difficult People,” 554.

77. Scarre, On Courage, 146.

78. Ibid.

79. Jos, Tompkins, and Hays, “In Praise of Difficult People,” 556. Also see Dozier and Miceli, “Potential Predictors of Whistle-Blowing,” 828–29.

80. Alford, Whistleblowers, 95.

81. Ibid., 93.

82. On moral absolutism see Beth Hawkins, “The Purity of Coleen Rowley,” Mother Jones, March 1, 2006).

83. Thompson, Restoring Responsibility, 255; “H.R. 1507, The Whistleblower Protection Enhancement Act of 2009,” Hearing Before the House Committee on Oversight and Government Reform, 111th Cong., 1st Sess., May 14, 2009, 24–25 (Statement of Robert F. Turner).

84. Jos, Tompkins, and Hays, “In Praise of Difficult People,” 557.

Chapter 6
Should We Trust Leakers?

1. Government Accountability Project, The Art of Anonymous Activism, 2. Also see Svara, The Ethics Primer for Public Administrators, 118–19.

2. Interdepartmental Group on Unauthorized Disclosures of Classified Information, Report, 2; Bruce, “How Leaks of Classified Intelligence Help U.S. Adversaries,” 406–7.

3. 18 U.S.C. § 793(d).

4. Ibid.

5. Ballou and McSlarrow, “Plugging the Leak,” 805–11.

6. For example, see “The Espionage Statutes: A Look Back and a Look Forward,” Hearing Before the Subcommittee on Terrorism and Homeland Security of the Senate Committee on the Judiciary, 111th Cong., 2nd Sess., May 12, 2010 (Statement of Kenneth L. Wainstein).

7. Interdepartmental Group on Unauthorized Disclosures of Classified Information, Report, 20.

8. Bazan, Intelligence Identities Protection Act, 5; Croner, “A Snake in the Grass?” 773–74.

9. United States v. Leibowitz, No: AW-09-0632 (D. Md. 2009).

10. Allan Lengel and Dana Priest, “Investigators Conclude Shelby Leaked Message,” Washington Post, August 5, 2004. Also see White, “The Need for Governmental Secrecy,” 1080.

11. “Justice May Probe Leaked Pre-9/11 Intercepts,” CNN, June 20, 2002, online at http://tinyurl.com/cjjcero.

12. David Johnston and Scott Shane, “C.I.A. Fires Senior Officer over Leaks,” New York Times, April 22, 2006; R. Jeffrey Smith and Dafna Linzer, “CIA Officer’s Job Made Any Leaks More Delicate,” Washington Post, April 23, 2006; Dan Eggen, “Little Is Clear in Law on Leaks,” Washington Post, April 28, 2006.

13. Interdepartmental Group on Unauthorized Disclosures of Classified Information, Report, 20.

14. Note that even an Official Secrets Act has not prevented a steady trickle of headline-grabbing leaks of classified information in England, including those by Clive Ponting, Cathy Massiter, Sarah Tisdall, Peter Wright, Richard Tomlinson, David Shayler, Katherine Gun, David Keogh, and Derek Pasquill, with the most recent example being the so far still-anonymous disclosure of the so-called Downing Street Memo. On this see “The Downing Street Memo,” Sunday Times, May 1, 2005. For the other cases see Maer and Oonagh Gay, Official Secrecy, 11–19; Article 19 and Liberty, Secrets, Spies, and Whistleblowers (London: Guardian, 2000).

15. Interdepartmental Group on Unauthorized Disclosures of Classified Information, Report, 16. Also see Dulles, Craft of Intelligence, 244–45.

16. Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, Report, 383; Interdepartmental Group on Unauthorized Disclosures of Classified Information, Report, 20.

17. Dulles, Craft of Intelligence, 244–45.

18. Edwards and Wayne, Presidential Leadership, 158

19. Shane Harris, “Plugging the Leaks,” Washingtonian, August 2010, 36. Also see Hurt, “Leaking National Security Secrets,” 20.

20. Josh Gerstein, “Justice Dept. Cracks Down on Leaks,” Politico, May 25, 2010, online at http://tinyurl.com/23olzaq; Moberly, “Whistleblowers and the Obama Presidency,” 75–80.

21. Letter from Attorney General John Ashcroft to Representative J. Dennis Hastert, October 15, 2002, 4, online at http://tinyurl.com/9l9zax2. Also see Adam Liptak, “A High Tech War on Leaks,” New York Times, February 11, 2012.

22. Dana Priest, “CIA Holds Terror Suspects in Secret Prisons,” Washington Post, November 2, 2005.

23. “Current and Projected National Security Threats to the United States,” Hearing Before the Senate Select Committee on Intelligence, United States Senate, 109th Cong., 2nd Sess., February 2, 2006, 51–52.

24. R. Jeffrey Smith and Dafna Linzer, “Dismissed CIA Officer Denies Leak Role,” Washington Post, April 25, 2006.

25. R. Jeffrey Smith, “Fired Officer Believed CIA Lied to Congress,” Washington Post, May 14, 2006; Robert G. Kaiser, “Public Secrets,” Washington Post, June 11, 2006. For another striking example see Feldstein, Poisoning the Press, 147–48.

26. Ackerman, “Protect, Don’t Prosecute, Patriotic Leakers.”

27. James Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers without Courts,” New York Times, December 16, 2005.

28. Michael Isikoff, “The Fed Who Blew the Whistle,” Newsweek, December 12, 2008.

29. Ibid.

30. Ibid.

31. Lichtblau, Bush’s Law, 188–89.

32. Isikoff, “The Fed Who Blew the Whistle.”

33. Michael Isikoff, “Looking for a Leaker,” Newsweek, August 12, 2007.

34. Brian Ross, “NSA Whistleblower Alleges Illegal Spying,” ABC News, January 10, 2006, online at http://tinyurl.com/c6jy5h3.

35. Chris Strohm, “Ex-NSA Official Seeks Avenue for Sharing New Allegations,” Government Executive, January 19, 2006.

36. “National Security Whistleblowers,” 109th Cong., 2nd Sess., February 14, 2006, 169–70 (Statement of Russell D. Tice).

37. Ibid., 173.

38. Ibid., 174.

39. Chris Strohm, “Former NSA Officer Alleges Illegal Activities under Hayden,” Government Executive, May 12, 2006

40. Risen, State of War, chap. 9.

41. James Risen, “Fired by the C.I.A., He Says Agency Practiced Bias,” New York Times, March 2, 2002.

42. Todd C. Frankel, “Life Away from CIA Still Tangled, Lonely for Indicted Ex-Spy,” St. Louis Post-Dispatch, January 23, 2011.

43. Sterling v. Tenet, 416 F.3d 338 (4th Cir. August 3, 2005).

44. United States v. Sterling, No. 1:10cr485 (E.D. Va. 2010) [Indictment, 7–14].

45. This concern is widely acknowledged in the media ethics literature. For example, see Carlson, “Whither Anonymity?”; Boeynik, “Anonymous Sources,” 238, 240. Also see Smith, Ethics in Journalism, 176–77; Sanders, Ethics and Journalism, 114; Flynn, “Covert Disclosures,” 261.

46. Goldsmith, The Terror Presidency, 38–48.

47. United States v. Sterling, No. 1:10cr485 (E.D. Va. 2010) [Indictment, 13].

48. This concern too is widely acknowledged in the media ethics literature. For example, see Carlson, “Whither Anonymity?” 42–43; Boeynik, “Anonymous Sources,” 242–44; Jacquette, Journalistic Ethics, 169; Wasserman, “A Critique of Source Confidentiality,” 563.

49. Lichtblau, Bush’s Law, 187.

50. United States v. Sterling, No. 1:10-cr485 (E.D. Va. 2011) [Indictment, 7–18].

51. Risen, State of War, chap. 9.

52. Seymour M. Hersh, “Torture at Abu Ghraib,” New Yorker, May 10, 2004.

53. Bovens, The Quest for Responsibility, 209; Elliston, “Anonymous Whistleblowing,” 47.

54. For instance see Sophie Arie, “Crude Niger Forgeries Surface in Italian Paper,” Guardian, July 17, 2003; Seymour M. Hersh, “The Stovepipe,” New Yorker, October 27, 2003; Unger, American Armageddon, chap. 14; Hoyle, Going to War, chap. 9.

55. For an excellent analysis of prepublication procedures that the media ought to follow in order to mitigate national security harm, see “Media Incentives and National Security Secrets.” This article proposes that procedural safeguards be enforced through law, but it provides little reason to believe that such a law could survive a First Amendment challenge, not to mention be enforced against foreign media organizations, including online publications. Arguably, the more plausible strategy is to rely on media criticism, which, as discussed in this book’s conclusion, can direct public attention and condemnation toward publications that fail to abide by the recommended procedural safeguards.

56. Bickel, Morality of Consent, 81.

57. Ibid., 80.

58. Ibid., 81. Here Bickel was building on Justice Black’s observation in the Pentagon Papers case that “the press was protected so that it could bare the secrets of government and inform the people” (New York Times Co. v. United States, 717).

59. Bickel, Morality of Consent, 81.

60. Ibid.

61. Ibid.

62. Ibid.

63. Ibid., 80.

64. Ibid., 84.

65. “When in Doubt, Publish,” Washington Post, July 9, 2006. Also see Bill Keller and Dean Baquet, “When Do We Publish a Secret?” New York Times, July 1, 2006; “An Alert Press,” Washington Post, June 29, 2006.

66. “When in Doubt, Publish.”

67. Keller and Baquet, “When Do We Publish a Secret?”

68. “Confidential News Sources Policy” (New York Times Company, March 1, 2004), online at http://www.nytco.com/company/business_units/sources.html.

69. Leonard Downie Jr., “The Guidelines We Use to Report the News,” Washington Post, March 7, 2004; Andrew Alexander, “Ignoring the Rules on Anonymous Sources,” Washington Post, August 16, 2009. For a wider survey see Son, “Leaks.” Son notes that few codes of ethics currently in use discuss the problem of malicious disclosures. This deficiency has been addressed in Duffy and Freeman, “Unnamed Sources,” 310–11. Unfortunately, Duffy and Freeman do not discuss how the code of ethics they propose might be enforced, especially when leaks are channeled via websites like WikiLeaks. The same shortcoming can be seen in Kielbowicz, “The Role of News Leaks,” 489.

70. For example, see Daniel Okrent, “An Electrician from the Ukrainian Town of Lutsk,” New York Times, June 13, 2004; Daniel Okrent, “Briefers and Leakers and the Newspapers Who Enable Them,” New York Times, May 8, 2005; Byron Calame, “Anonymity: Who Deserves It?” New York Times, November 20, 2005; Byron Calame, “More Flexibility and Reality in Explaining Anonymity,” New York Times, June 30, 2006; Clark Hoyt, “Culling the Anonymous Sources,” New York Times, June 8, 2008; Clark Hoyt, “Those Persistent Anonymous Sources,” New York Times, March 21, 2009; Clark Hoyt, “No Comment. But You Didn’t Hear It From Me,” New York Times, March 28, 2009; Clark Hoyt, “Cloaked Identities, Even with Names,” New York Times, August 15, 2009; Clark Hoyt, “Squandered Trust,” New York Times, April 17, 2010; Clark Hoyt, “Anonymous Sources Postscript,” New York Times, April 17, 2010.

71. Hoyt, “Culling the Anonymous Sources.”

72. Andrew Alexander, “Ignoring the Rules on Anonymous Sources,” Washington Post, August 16, 2009.

73. Andrew Alexander, “For The Post, Anonymous Sources Remain a Problem,” Washington Post, June 13, 2010.

74. Calame, “Anonymity: Who Deserves It?”

75. Phil Corbett, “A Reminder on Anonymous Sources,” New York Times, August 31, 2010. Also see Bill Keller, “Assuring Our Credibility,” New York Times, June 23, 2005, 4–6; Calame, “More Flexibility and Reality in Explaining Anonymity.”

76. Alexander, “Ignoring the Rules on Anonymous Sources.” For additional evidence and excellent analysis see Glenn Greenwald, “The Casual, Corrupting Use of Anonymity for Political Officials,” Slate, March 6, 2009, online at http://tinyurl.com/bfczjku; Glenn Greenwald, “The Ongoing Journalistic Scandal at the New York Times,” Slate, July 9, 2007, online at http://tinyurl.com/8zurd8h. There is some debate about the extent to which editors and publishers have been able to rein in the use of anonymous sources over the past decade. For example, see Duffy and Williams, “Use of Unnamed Sources Drops”; Martin-Kratzer and Thorson, “Use of Anonymous Sources Declines.” Note, however, that this data is not disaggregated by subject area. Therefore, we do not know whether national security reporting has actually seen a decline in the use of anonymous sources (for an earlier study see Hallin, Manoff, and Weddle, “Sourcing Patterns of National Security Reporters”). Note also that our concern here is to prevent the misuse of anonymous sources—not to eliminate their use altogether. Hence, from our perspective, the overall number of anonymous disclosures is less relevant. It is the quality, not the quantity, of anonymous disclosures that matters.

77. Bickel, Morality of Consent, 83.

78. Ibid., 85, emphasis in original.

79. For a sophisticated analysis of the relationship between reporters and sources see Levi, “Dangerous Liaisons,” 690–706. Another insightful study is Carlson, On Condition of Anonymity, chap. 1.

80. Lichtblau, Bush’s Law, 202. Also see Goldsmith, “Secrecy and Safety”; Schoenfeld, Necessary Secrets, 47–48.

81. Byron Calame, “Can ‘Magazines’ of The Times Subsidize News Coverage?” New York Times, October 22, 2006; Byron Calame, “Bill Keller Responds to Column on Swift Mea Culpa,” New York Times, November 6, 2006; “Letter from Bill Keller on The Times’s Banking Records Report,” New York Times, June 25, 2006.

82. “Fit and Unfit to Print,” Wall Street Journal, June 30, 2006.

83. Scott Shane, “A History of Publishing, and Not Publishing, Secrets,” New York Times, July 2, 2006; Smolkin, “Judgment Calls”; Keller, “The Boy Who Kicked the Hornet’s Nest,” 8, 13.

84. David Abramowicz notes that these procedural norms can be patterned on the norms that have already been fleshed out in the various codes of ethics developed by the journalism industry (“Calculating the Public Interest in Protecting Journalists’ Confidential Sources,” 1971–74). He does not discuss, however, the constitutional and practical challenges associated with enforcing these norms, which, as we shall see, are quite severe. The same drawback arises in Carlson’s On Condition of Anonymity, which puts forward sourcing principles that reporters, editors, and publishers ought to follow, but provides no enforcement mechanism (154–61).

85. Strauss, “Freedom of Speech and the Common-Law Constitution,” 38.

86. New York Times Co. v. Sullivan, 376 U.S. 254, 270–71 (1964).

87. McIntyre v. Ohio Elections Commission, 514 U.S. 334, 347 (1995).

88. United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943).

89. Abrams v. United States, 250 U.S. 616, 630 (1919).

90. McIntyre v. Ohio Elections Commission, 348–49, and fn. 11.

91. Ibid., 349–51.

92. Buckley v. Valeo, 424 U.S. 1, 67 (1976); McConnell v. Federal Election Commission, 540 U.S. 93, 197 (2003). Also see First National Bank of Boston v. Bellotti, 435 U.S. 765, fn. 32 (1978), where the court cited the “prophylactic effect” of such disclosures.

93. Buckley v. Valeo, 68; McConnell v. Federal Election Commission, 198.

94. Cohen v. Cowles Media Co., 501 U.S. 663, 671–72 (1991).

95. Ibid., 671.

96. Ibid., 677–78.

97. Ibid., 678.

98. Miami Herald Publishing Co. v. Tornillo, 418 US 241, 256–58 (1974). Also see Associated Press v. United States, 326 U.S. 1 (1945), fn. 18.

99. McIntyre v. Ohio Elections Commission, fn. 11.

100. Miami Herald Publishing Co. v. Tornillo, 256.

101. Branzburg v. Hayes, 682, 691.

102. Ibid.

103. Note, however, that the D.C. Circuit Court has observed that in cases “when the journalist is a party, and successful assertion of the privilege will effectively shield him from liability, the equities weigh somewhat more heavily in favor of disclosure” (Zerilli v. Smith, 656 F.2d 705, 714 (D.C. Cir. 1981)).

104. Ibid., 711; McKevitt v. Pallasch, 339 F. 3d 530, 532 (7th Cir. 2003). For a broader defense of the reporter’s privilege see Blasi, “The Checking Value,” 602–7; Emerson, “Legal Foundations of the Right to Know,” 19–20; Stone, “Why We Need a Federal Reporter’s Privilege”; Werhan, “Rethinking Freedom of the Press after 9/11,” 1603–5. Regrettably, none of these scholars gives sustained attention to the prospect that unauthorized disclosures might themselves be misused. One exception on this front is Fargo, “The Year of Leaking Dangerously,” 1008–10, 1119. Because Fargo takes the view that sources will not come forward if there is a risk that a reporter cannot guarantee confidentiality, he ultimately recommends self-regulation. For reasons discussed earlier, this proposal lacks credibility.

105. BeVier, “The Journalist’s Privilege,” 475. Some proponents of a reporter’s privilege argue that even having to answer government subpoenas imposes a significant legal and administrative burden on news organizations that limits their ability to exercise their First Amendment rights (see, for example, Dalglish, Agents of Discovery, 4, 12). However, the evidence Dalglish offers is anecdotal. More recent research shows that a reported decline in the use of anonymous sources is “tied more closely to journalism-industry norms than to legal environment” (Jones, “Avalanche or Undue Alarm?” 651). But even if the evidence supports Dalglish’s view, this would not itself be conclusive. We would still need to ask whether, and if so how far, we want reporters, editors, and publishers to be protected from scrutiny when they collect and publish disclosures from sources unwilling to disclose potential conflicts of interest.

106. Blasi, “The Checking Value,” 538, 607; Meiklejohn, Free Speech, 88–89. It is worth recalling Meiklejohn’s critical remarks about the tendency of commercial pressure to make the news media cater to sensationalism. The radio, he writes, “is not entitled to the protection of the First Amendment,” because it is “engaged in making money.” The “First Amendment,” he adds, “does not intend to guarantee men freedom to say what some private interest pays them to say for its own advantage.” Arguably, Meiklejohn’s criticism of commercial radio for corrupting the “reasoned judgment … upon which the enterprise of self-government depends” implies that he would also frown upon anonymity when it is used to covertly serve partisan ends (Free Speech, 104–5).

107. Keller, “The Boy Who Kicked the Hornet’s Nest,” 14, 21.

108. A recent warning is provided by the case of Edward Snowden, the former NSA employee who made unauthorized disclosures via the Guardian in England. Snowden reportedly chose this route because he did not trust either the Washington Post (since it wanted to obtain the government’s input on the harm likely to be caused by the publication of his disclosure) or the New York Times (as it had previously acceded to President Bush’s request to temporarily withhold Risen’s and Lichtblau’s story on warrantless wiretapping). On this see Howard Kurtz, “Leakers Seek Out Advocacy Journalists,” CNN, June 12, 2013, online at http://tinyurl.com/lnmovx7.

Conclusion Bitter Medicine

1. As Justice Potter Stewart famously warned in the Pentagon Papers case, “secrecy can best be preserved only when credibility is truly maintained” (New York Times Co. v. United States, 729).

2. Paine, “The Necessity of Taxation,” 310. At the time he wrote this essay, Paine was being paid by Robert Livingston, Congress’s secretary of foreign affairs, as part of a highly secret plan drawn up by Robert Morris, and seconded by George Washington, to “prepare the minds of the people for such restraints and such taxes and imposts, as are absolutely necessary for their own welfare” (Morris, The Papers of Robert Morris, 328). Compare with Paine, “The Rights of Man, Part II,” 183, 225, 227. For a trusting contemporaneous voice see A Moderate Whig, “A Short Receipt for a Continental Disease,” 769.

3. Elliot, Debates, 4:264–65.

4. See for example, Hampden [William Findley], “A Note Protesting the Treaty-Making Provisions of the Constitution,” Pittsburgh Gazette, February 16, 1788; An Old Whig, “Essay III,” 26–27.

5. The Federalist, 316. For a valuable discussion on the Framers’ expectation that the design of the presidency would “strengthen existing virtues … or generate them where they did not already exist,” see Fatovic, Outside the Law, chap. 6, esp. 210–11.

6. Manin, The Principles of Representative Government, 115–20.

7. For example, see David E. Rosenbaum, “A Closer Look at Cheney and Halliburton,” New York Times, September 28, 2004.

8. James Madison to James Monroe, March 11, 1795, in Madison, Letters and Other Writings, 2:37.

9. Goldsmith, Power and Constraint, 42.

10. Goldsmith, “Secrecy and Safety,” 36.

11. Goldsmith, Power and Constraint, 42. For a skeptical view see Herman, Taking Liberties, 8–9.

12. Goldsmith, Power and Constraint, 71.

13. For a recent critique along these lines see Bruff, Bad Advice.

14. Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” New York Times, May 29, 2012.

15. Hess, The Government/Press Connection, 93.

16. This is what happened during Iran-Contra where President Reagan overruled the objections raised by Secretary of State George Schultz. On this see Alterman, When Presidents Lie, 278.

17. Hess, The Government/Press Connection, 93.

18. Goldsmith, “Secrecy and Safety,” 35–36.

19. Posner and Vermeule, “The Credible Executive,” 897–910.

20. Hirschman, Exit, Voice, and Loyalty, 117. I am grateful to Sanford Levinson for emphasizing this point in our discussion.

21. Diodorus Siculus, Library of History, 11.42.

22. Plutarch, “Themistocles”; Cicero, On Duties, 118. According to Diodorus, Themistocles’s secret plan was to fortify the Piraeus, whereas Plutarch and Cicero depict him as scheming to burn the Spartan navy.

23. Posner and Vermeule, “The Credible Executive,” 911.

24. Dan Eggen and Paul Kane, “Gonzales Hospital Episode Detailed,” Washington Post, May 16, 2007; David Stout, “Gonzales Pressed Ailing Ashcroft on Spy Plan, Aide Says,” New York Times, May 15, 2007. Also see Goldsmith, The Terror Presidency, 38–48.

25. Kazin, A Godly Hero, 232–39.

26. Posner and Vermeule, “The Credible Executive,” 912.

27. Weisband and Franck, Resignation in Protest, 122; Dobel, “Doing Good by Staying In?” 191. For an interesting recent example see Paul Starobin, “A Moral Flip-Flop? Defining a War,” New York Times, August 6, 2011.

28. Congressional Record, 65th Cong., 1st Sess., 1917, 837.

29. “The DA-Notice System,” online at http://www.dnotice.org.uk/.

30. Dulles, Craft of Intelligence, 245–46. Secretary of Defense James Forrestal proposed a similar arrangement (see Carpenter, The Captive Press, 121).

31. Cater, The Fourth Branch of Government, 126–27; Report to the Secretary of Defense, 21.

32. For example, see Kaiser, “Public Secrets”; Keller and Baquet, “When Do We Publish A Secret?”; Smolkin, “Judgment Calls”; Shane, “A History of Publishing, and Not Publishing, Secrets.”

33. Carpenter, The Captive Press, 89. For similar critiques of cooperation see Olmstead, Challenging the Secret Government, 60–62, 73–74, 183–85; Cox, The Myths of National Security, 119–29.

34. Gup, Nation of Secrets, 167.

35. Ibid., 167–68.

36. See, for example, the views expressed in Smolkin, “Judgment Calls.” On the role of sensationalism in intelligence reporting see Omand, “Intelligence Secrets and Media Spotlights,” 47–48.

37. It is often forgotten that the unreliability of self-censorship was the key justification offered on behalf of the Espionage Act’s censorship provision. For instance see Congressional Record, 65th Cong., 1st Sess., 1917, 1606, 1721, 1717, 1810–12.

38. Report to the Secretary of Defense, 21. Consider one well-known example: in 1985 the Washington Post delayed publishing a story on the “Ivy Bells” program, following a personal request from President Reagan. The Post was then scooped by NBC, which disregarded requests as well as threats of prosecution from CIA Director William Casey (on this see Kaiser, “Public Secrets”).

39. Dulles, Craft of Intelligence, 246. Also see Cater, “News and the Nation’s Security,” 26.

40. For example, see Paul Sonne, “WikiLeaks Says It Could Close,” Wall Street Journal, October 25, 2011.

41. For troubling accounts of press intimidation see Smith, War and Press Freedom, chaps. 5–6.

42. Nemeth, News Ombudsman, 57.

43. Ibid., 50.

44. For example, see Calame, “Bill Keller Responds to Column on Swift Mea Culpa.” For a broader analysis of the “irrelevance” of ombudsmen see Bunton, “Media Criticism as Self-Regulation,” 79.

45. Byron Calame, “Behind the Eavesdropping Story, a Loud Silence,” New York Times, January 1, 2006.

46. Nemeth, News Ombudsmen, 143–49. The foundational study here is Ettema and Glasser, “Public Accountability or Public Relations?”

47. See, for example, Meyers, “Creating an Effective Newspaper Ombudsman Position,” 249–52.

48. The Commission on Freedom of the Press, A Free and Responsible Press, 74–75, 94.

49. Ibid., 80.

50. Brown, “Anonymous Sources,” 56; Brown, “Anonymity Hurts Reporters and Politicians,” 38–39.

51. Brown, “Anonymous Sources,” 56.

52. Joe Strupp, “Losing Confidence,” Editor and Publisher, July 1, 2005, 36.

53. Sternadori and Thorson, “Anonymous Sources Harm Credibility of All Stories.” Contrast with Smith, “Impact of Unnamed Sources on Credibility Not Certain.”

54. Shepard, “Anonymous Sources,” 22. Also see Strupp, “Losing Confidence,” 34; Jones, “Avalanche or Undue Alarm?” 651.

55. “The Times and Iraq,” New York Times, May 26, 2004.

56. Franklin Foer, “The Source of the Trouble,” New York Magazine, May 21, 2005. Also see Jack Shafer, “Reassessing Judith Miller,” Slate, May 29, 2003, online at http://tinyurl.com/chpey2o; Jack Shafer, “The Times Scoops That Melted,” Slate, July 25, 2003, online at http://tinyurl.com/8yj6pqt; Jack Shafer, “Miller Time (Again),” Slate, February 12, 2004, online at http://tinyurl.com/crh723r; Massing, Now They Tell Us. For a survey of the critical coverage see Carlson, On Condition of Anonymity, 34–39.

57. Byron Calame, “The Miller Mess: Lingering Issues among the Answers,” New York Times, October 23, 2005; Maureen Dowd, “Woman of Mass Destruction.”

58. Howard Kurtz, “Intra-Times Battle over Iraqi Weapons,” New York Times, May 26, 2003.

59. See, for example, Curran, Media and Power, 219–21, 226–29. The foundational text here is Bagdikian, The New Media Monopoly.

60. New York Times Co. v. United States, 717. Consider, for example, the uncritical treatment in Thomas, Watchdogs of Democracy?, chap. 6. The chapter’s title is “Hail to the Heroic Leakers and Whistle-Blowers—And the Journalists Who Protect Them.”

61. United States v. Sterling, No. 1:10-cr485 (E.D. Va. 2011) [Memorandum Opinion, 6–7].

62. Schoenfeld, Necessary Secrets, 50.

63. According to one survey, fewer than one in four editors consider media critics to be “well qualified … to make criticisms of daily newspapers” (Lambeth, Committed Journalism, 119).

64. There is little new to be said here. Scholars of media ethics have been criticizing sensationalism for well over a century now—to little effect. For a brief overview see Ferré, “A Short History of Media Ethics,” 17–18; Norris, A Virtuous Circle, 4–8. For recent critiques of sensationalism see Flink, Sentinel under Siege, 11–14; Rosen, What Are Journalists For?, 286, 296; Schultz, Reviving the Fourth Estate, 95–99, 115–16.

65. A Free and Responsible Press, 100–103. For a recent iteration see Scheuer, The Big Picture, 158–63.

66. A Free and Responsible Press, 100–101. On the short-lived National News Council created in the wake of the Hutchins Commission report see Lambeth, Committed Journalism, 109–11.

67. A Free and Responsible Press, 98.

68. For a key example, namely, The Daily Show’s role as a media critic, see Hayes, Press Critics Are the Fifth Estate, chap. 9.

69. For an analysis of the “hard-nosed political tactics” that can be used to “silence or short-circuit” critics of the presidency, see Bennet, Lawrence, and Livingston, When the Press Fails, chap. 5, 136.

70. Weber, Essays in Sociology, 128.

71. As Justice Stewart put it, as far as the Constitution goes, the press “is free to do battle against secrecy and deception in government,” but it “cannot expect from the Constitution any guarantee that it will succeed.” This is because the Constitution “establishes the contest, not its resolution.” For the resolution we must rely “on the tug and pull of the political forces in American society” (Stewart, “Or of the Press,” 635–36.