Washington Lawyer

Books in the Law: May 2014

From Washington Lawyer, May 2014

By Ronald Goldfarb

Secrets and Leaks book coverSecrets and Leaks: The Dilemma of State Secrecy
By Rahul Sagar
Princeton University Press, 2013

Review by Ronald Goldfarb

When national security conflicts with constitutional rights, sad examples in history tell us that national security usually prevails. After the facts—much after—we sometimes take steps to correct the mistakes brought about by the pressures of the moments. The internments of Japanese Americans during World War II are an example. There, three progressive public officials acted out of character: President Franklin D. Roosevelt approved ignoble steps begun under California Attorney General Earl Warren, and the U.S. Supreme Court, in Korematsu v. United States, voted to approve the practices. Decades later, the country apologized.

No wonder then that many of President George W. Bush’s harsh responses to 9/11 have prevailed (and been maintained by President Barack Obama). In the wake of the 9/11 war on terror, the need for urgent responses to ensure our national safety was obvious. But what did the public know about the actions of its government, and did those actions all come with public approval or condemnation?

Recent phenomena—first, Julian Assange’s WikiLeaks, and recently, Edward Snowden’s massive dissemination of millions of National Security Agency (NSA) documents—have given rise to an important national discussion about the proper balance between legitimate but secret national security surveillance and the need for critical public information about these vital public affairs. The conundrums of those classic cases are not treated in this book; WikiLeaks gets passing mention, and Snowden appears in a footnote.

There are a few more important constitutional questions than how best to strike the proper balance in confounding cases involving national security and public information. For this reason, I’ve reviewed several important, related books on these pages. One, Not a Suicide Pact: The Constitution in a Time of National Emergency by conservative Judge Richard Posner, advocated for a Constitution that bends occasionally so it does not break, because the Constitution is not a suicide pact (to borrow the late Justice Robert Jackson’s brilliant metaphor). Another, Nation of Secrets: The Threat to Democracy and the American Way of Life by Ted Gup, argued that a culture of secrecy dangerously “infantilizes” the public. Gup noted philosopher Sissela Bok’s insightful conclusion that governments have a primordial sense of the need for secrecy, inconsistent with the public’s need for access to information.

Top Secret America: The Rise of the New American Security State by Dana Priest and William Arkin lifted the veil covering a world of networks of proliferating archives of secret information, rationalized by claims of patriotism. Their data offered an astonishing bill of particulars documenting the extent of the new security state, and its incursions on civil liberties and privacy. And Barry Siegel’s Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets analyzed the strange circumstances of the precedential Supreme Court case United States v. Reynolds that created the governing, quite questionable case for protecting state secrets.

Glenn Greenwald, a blogger and Snowden vehicle for press presentations of his purloined NSA materials, has a book coming out with “new revelations,” and The Guardian reporter Luke Harding just published his account of the Snowden leaks in The Snowden Files: The Inside Story of the World’s Most Wanted Man. There can’t be too much attention paid to this constitutional dilemma, so one picks up Secrets and Leaks by Princeton University politics professor Rahul Sagar with anticipation of fresh thoughts about the debate over, to borrow a facetious old song title, “Who Takes Care of the Caretaker’s Daughter (While the Caretaker’s Busy Taking Care).” However, readers seeking fresh insights about the tricky interplay between necessary and proper presidential power won’t find it here.

Professor Sagar presents the basic issues. The Founding Fathers said that secrecy is required for national security. It is an “essential element of statecraft.” The Constitution divides power in government so the three different branches can regulate—check and balance—each other’s excesses. But politicization of government has warped some of that effectiveness.

The media is the public’s watchdog, and there is a history of condoning the power of the press. But there also are questions about the press’ use of leaks and anonymous sources, as recent history demonstrates (the Valerie Plame cause célèbre, for example). The courts have been overly deferential to presidential prerogatives, as the Siegel book amply documented. While whistleblowing and leaks are inevitable, leakers do not fare well after the press and public have gobbled up their disclosures. The government can and does use claims of secrecy to cover up its wrongdoing and incompetence. But, as the Siegel book pointed out, the state secrets defense was raised infrequently until the mid-20th century, and has been excessively advanced recently.

The unelected press, especially since the Pentagon Papers case, has enjoyed wide range in policing the government, but the sources it exploits pay the price and do not enjoy the prestige of the press, nor its immunity from prosecution. Why is the press “heroic,” to use Sagar’s word, but its sources condemned, sometimes indicted? Sagar says unauthorized disclosures “disperse[] rather than centralize[] the power to disclose classified information,” but he recognizes the professional and social sanctions and shunning whistleblowers invariably endure. Leaking, he acknowledges, is a form of civil disobedience, but anonymity is at odds with the theory of civil disobedience. 

Sagar’s conclusion to this critical quandary is bland: “There is . . . no neat answer to the puzzles we have inherited from the Framers.” The historic dynamic between the press and the president is “here to stay,” and “there is . . . no better way to regulate the exercise of state secrecy.” One wonders why the professor bothered to write this book about such a rich and provocative subject. Sagar notes the vexing questions about the moral versus legal elements of secrecy and disclosure, concluding, “[T]there is little hope of finding a neat answer.” Nor does he help readers decide whether the Assanges and Snowdens among us are national heroes or traitorous villains. Is breaking the law in the public interest comparable to jury nullification? Where is the line between exposing the excesses of the security state for purposes of reform and sabotaging national security and endangering one’s country?

His mention of the impact of new media on press responsibility is minimal. Civil disobedience is an honorable and extreme moral measure, but do the results of disclosure more than the act of disobedience itself characterize morality? Who decides and by what standards? To what extent is our classification system so excessive and the Freedom of Information Act so ineffective as to warrant vigilantism? Sagar states that there are “dozens and sometimes hundreds of individuals” with access to classified materials—a vast understatement as numerous studies have shown, most recently the 1997 report of a commission chaired by the late Senator Daniel Patrick Moynihan. Top Secret America by two Washington Post prize-winning authors revealed that 850,000 American workers have top-secret clearance, including 250,000 private contractors.

I don’t like to write negative reviews. Readers don’t need to be told what books not to read, I think, only suggestions about which ones to read. This disappointing book is one I picked up because the subject warrants serious and continued discussion. Sagar’s analytical discussion of secrecy may work in the classroom, but his excessively Socratic, see-sawing “on the-one-hand, on-the-other” analysis is maddening. Readers will need to look for illumination concerning this perplexing dilemma elsewhere.

Ronald Goldfarb is a Washington, D.C., attorney, author, and literary agent whose reviews appear regularly in Washington Lawyer. Reach him atrlglawlit@gmail.com.