City Journal Winter 2014

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Winter 2014
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Gabriel Schoenfeld
Leakers and the Law « Back to Story

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Minority Bolshevism October 20, 2013 at 8:09 PM
"After seven decades, that document has now been made public."

Is this a coincidence?
Very interesting, thank you CJ. I also appreciated the thoughtful Comments, presenting different perspectives.
The Wikileaks situation is very confused to my humble mind. I agree entirely with Mr/Ms Manning's prosecution. Manning was a soldier with a security clearance. He used that clearance to vacuum up all the data he could on anything he could and gave it to Wikileaks. Manning deserves his time in prison.

Julian is a bit different in my mind. He is not American and he was never on American soil when he did what he did. I cannot see why people believe he is accountable to the American government.

I do not buy the argument that Julian and Wikileaks are 'media' protected by the 1st amendment. What stories did they publish? What hard breaking report? Not a single one. They were just a middle organization that took the data they got and dumped it whole and unorganized out into the world. They are no more a journalist than any spy organization in the world, they just shared it with everyone instead of a specific foreign government.
"The publication of Snowden’s purloined documents may cost an untold number of lives."

The claim is ornamental at best, and specious at worst. For a much more recent perspective:

http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB48/supreme.html

(As per Griswold: "It quickly becomes apparent to any person who has consideration experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.")
Forced to recall a 70 year old historical incident to illustrate his conclusion leaves us wondering why this author couldn’t find a more recent example. Additionally, not wanting to distract the reader from the primary theme with relevant details, this essay omits the bitter politics of that WWII era in an effort to discover truth relevant to today’s America – efforts which invariably fail. The Roosevelt administration during WWII presents a rich tapestry of our government’s attempt to preserve its singular right to inform the American public on matters related to security - or to not inform us as our leaders decide.

In an age without cell phone texts, tweets, emails and social media, previous American generations were just as loose lipped and prone to stir up trouble for Washington’s policy makers and secret keepers – most Americans, now and back then, believe it entirely right and proper for individual citizens to decide what national secrets should be kept and what secrets exposed. And it isn’t due to lack of patriotism or moral fiber, more likely it’s due to inflated egos and the raw emotions related to our virulent politics of self-hate.

To goad Hitler’s Germany into declaring war on America in 1941, our government deliberately leaked our secret war plans to the media – December 4, 1941 Chicago Tribune headline: FDR’s WAR PLANS! Read all about it and learn our detailed plans to take on Nazi Germany, yet no one was ever prosecuted and no individual in our government would ever admit to the leak. Decades later, facts accompanied by admissions from Washington insiders like Frank C. Waldrop and Louis B. Nichols indicated the leak went all the way up to America’s foremost puppet master, FDR.

Why wasn’t the Chicago Tribune criminally prosecuted for revealing secret war plans as many in Congress and even Secretary Harold Ickes vigorously demanded? Roosevelt seemed strangely indifferent to prosecuting the Chicago Tribune – and Tribune owner Colonel Robert R. McCormick was a bitter political opponent of Roosevelt. But after promising America’s mothers their sons wouldn’t die on foreign battlefields due to his actions, Roosevelt needed Germany to initiate hostilities for domestic political reasons. A formal prosecution could divulge information embarrassing to the administration.

Of course there is no absolute proof of who initiated the Rainbow 5 War Plan leaks or why but truth is often difficult to discern when it comes to national secrets. Does the First Amendment protect our government’s right to use our independent media for its own purposes – perhaps it does. Should we resent that undisputed fact and insist the media can freely publish secrets based on the media’s singular judgment – perhaps we should make that distinction. Only future historians can render a verdict on leaking national secrets – as most historians today agree Roosevelt was ultimately justified in manipulating America into a war with Germany.
Issuance of a "Secret" or higher classification by our government on information does not determine whether publishing same will serve the public interest (reveal an over-reaching NSA program) or threaten the public by providing information otherwise unknown to our enemies.

Those who would "blanket" protect ALL govt secrets would also deny that human nature leads politicians/spying agencies to acquire more power via shady means, and to attempt to hide such means thru claims of "secret" classifications. Evidence proves those hopes to be naive.

No easy solution applies, but I would not favor application of prior restraint. Banning dissemination of leaked secrets based on potential harm should have a much higher standard of "proof".

Assuming that our govt deserves the benefit of the doubt in these cases is more and more tenuous as we learn of the massive data collection underway.
It is regrettable that the activities of such as Manning, Wikileaks, and Snowden will probably lead to an official secrets act which will criminalize the publication of leaked material. It is as perverse to argue that spying is illegal but the publication of the material spies steal steal is all right. The First Amendment should not protect publication of stolen material any more than Second Amendment should be construed to give the right to shoot anyone the shooter thinks to need shooting.

I have not read of any specific harm done by the leaks of Manning, Wikileaks, and Snowden. This does not mean that harm has not been done, it simply means either that a loss of co-operation from some hitherto co-operative source has not yet been linkable to some particular incident, or that the media has not found it useful to report it. Sooner or later, however, this vigilantism of the leakers and the media will result in some catastrophe, and the result will be an official secrets act. The media will have only itself to blame.
Snowdon did a particularly valuable service to European people in exposing the intrusive surveillance of the NSA.

If Americans consider the rights of foreign people to have little value, it may be wise not to travel the world anymore. Their paranoia may become a self-fulfilling prophesy.
What is the difference between Manning and A and a government that has information but leaves its ambassador and others to die at the hands of the enemy?
Is there no justice or is the law written to protect the leaders only?
jgury:
"As if the "Japs" were so oblivious about our ability to read their messages that even after a few major battles they would find out by reading the Chicago Trib. Which is about as ridiculous as saying terrorists are going to read Wikileaks and be surprised by anything."

Actually the Japanese were that oblivious in the '40s. Back then cultural exchanges between the 2 countries were much more rare than they are now. Few Westerners lived in Japan, and most people of Japanese descent who lived in the States were in Hawaii, Washington state, Oregon, and California. The Navy had so much trouble during the early part of the war finding people who could read Japanese that they actually employed women, something that no armed service ever did back then unless they were forced. During much of the war U.S. Forces often found Japanese maps and orders on the battlefield, not even encoded, just written in plain Japanese, because their armed forces were confident no American could read their language.

So yes, this could have tipped them off. There wasn't any internet back then, and the world was a much bigger place, as a result
"Any prosecution of Assange or WikiLeaks would be unprecedented. No journalist or news organization has ever been prosecuted in an American court for publishing government secrets." WikiLeaks a news organization? Only insofar as spreading its content to journalists in real news organizations but in itself just a storeroom from which Assange sells info to the highest bidder. I certainly would prosecute both WL and owners of that nefarious site.
As if the "Japs" were so oblivious about our ability to read their messages that even after a few major battles they would find out by reading the Chicago Trib. Which is about as ridiculous as saying terrorists are going to read Wikileaks and be surprised by anything.
It seems to me that the root difference, the underlying one, is that, in the Johnson incident, yes, hard secrets WERE exposed that COULD have, had the Japanese read between the lines, resulted in their changing their codes and putting thousands at risk. The fact it did not happen this way is not justification for the disclosures.... most likely in the mind of Johnson, carelessness or a very naif spirit. In Snowden't case, however, he revealed much that is not legal, exposed gross violations of existing law that DO presently and substantially cause harm to our liberties as Americans resident here. Revealing the scope and depth of our spying network needed to happen, as we all are the losers in the current situation. If some possible sources, or at least the likelihood of their existence, was also revealed regarding al Quaeda operations, too bad. My strong conviction is that we need to get OUT of almost all of those places anyway. The blowback resulting from, and to come in the future, is serious. I also question the veracity of the excuses set forth for the closing of those embasies. Seemed to me to be rather a bit of international political theatre to help obfuscate the details of the Bengahzi debacle, further exacerbated by the strong likelihood that was yet another piece of international political theatre, this one gone terribly wrong. Instead of prosecuting Snowden or Greenwals, perhaps our rulers should begin to dismantle the horrid and intrusive system that keeps us all under its thumb..... illegally. Cleaning up our own house here will go a long way to deescalate the worldwide situation our rulers "find" so treacherous. When the bully lays down his baseball bat and sits down, ending his bullying, the neighbourhood tends to relax and set about the real issues of life, no longer being so on the defensive.
This is excellent. I intend to use it in my university-level Political Science classes.
JS LEWIS
Virginia Beach, CA