Secrecy & Leaks

Mea Culpa: Stewart Baker

By Benjamin Wittes
Tuesday, September 6, 2011, 10:24 AM

Stewart Baker, former general counsel of the NSA and policy chief at DHS, is the author of Skating on Stilts: Why We Aren't Stopping Tomorrow's Terrorism. He writes in with the following as part of Lawfare's 9/11 10th Anniversary Project:

It turns out that I have a contemporary record of my views in the immediate aftermath of 9/11. Just a few days after the attacks, Slate asked Eugene Volokh and me to do a dialogue about civil liberties in wartime.  I kicked off the dialogue by saying that my heart wasn't in a repetition of the old civil liberties debate:

All the old arguments are fresh in my mouth. But playing them back in a different key feels somehow like forgetting, maybe even dishonoring, the dead. If, as all the reporters are saying, nothing will ever be the same again, the least we can do is not begin our dialogue with the same old questions. 

Instead, I'd like to begin by asking why this topic is so important that Slate and the rest of the press insist on discussing it now. The answer, I suppose, is that Slate thinks that wars are bad for civil liberties and that we need to be reminded not to sacrifice our freedoms in the war against terrorism. 

But frankly, I don't hear a lot of calls for sacrificing civil liberties today. Anyone who's dug this deep into Slate has probably already seen roughly 20 warnings about the risk to civil liberties for every proposal they've heard that would significantly restrict our freedoms—unless you think that curbside check-in is enshrined somewhere in the Magna Carta (a position the ACLU's probably briefing at this moment). 

Then why does Slate insist on spending this week looking for an Authoritarian Bogeyman Under the Bed? Well, if you'd asked Queen Victoria about the threats her society faced, she'd probably have worried aloud about a breakdown in sexual and other morality. Ask a Hollywood producer the same question, and he'll cite the threat of sex-hating moralists. Every age seems to warn itself most sternly about the risks that are least likely to do it harm. 

So too with us. Defending civil liberties is at the heart of the baby-boomer self-image, a self-image that's been packaged and sold to adolescents ever since. However powerful and rich and snobbish we ex-teen-agers become, we still see ourselves as rebels fighting a lonely battle against overweening authority. To make that myth work, we need an overweening authority to battle—preferably one that can't fight back. 

Intelligence agencies are perfect for that role. In practically every newspaper story about those agencies, it is understood that the bad guys are the ones invoking national security to keep secrets and protect intelligence sources. The reporters who ferret out those secrets and put them on the front page are the good guys, preventing intelligence abuses like CIA assassinations or monitoring of security risks inside the United States. Now, of course, even those abuses don't look quite as bad as they used to. And the cost of preventing them by publishing the details of intelligence operations looks a lot higher.... 

The risk that worries me isn't that our leaders will suddenly embrace authoritarianism. It's that they'll keep leaking, and the press will keep reporting, and the terrorists will keep getting smarter. ... 

So instead of spending the week looking for civil liberties threats in this crisis, I wish Slate and the rest of the press were reconsidering a quarter-century of press attacks on intelligence sources and methods. 

Why isn't Slate running a dialogue on journalists whose Pulitzers should now be considered tainted because their stories may have compromised classified intelligence methods that we could have used against terrorists? Why not a dialogue on the need to create a code of ethics for national security reporters? The press gave Chelsea Clinton room to grow up normally by not running some stories. Now the right of a lot of other American kids to grow up with two parents, or at all, may depend on not running some national security stories.

There isn't a lot there that I'd take back.  But I was wrong in two respects.
First, I misread the willingness of the press and the Pulitzer committee to stop celebrating disclosures of classified information. A few years later, two New York Times reporters Eric Lichtblau and James Risen, were actually awarded a Pulitzer for blowing the secrecy of the Bush administration anti-terror wiretap program.  given the doubts about its legality, that's understandable.  But the same two reporters, along with the Times itself, shortly thereafter disgraced themselves by disclosing a secret Treasury Department program that tracked terrorist finances -- a disclosure they made despite a complete lack of either scandal or illegality. 

The second thing I got wrong was thinking that the press still mattered in the same old way.  I thought that the only way to influence the national conversation about terrorism was to persuade the editors of the Times to expand their Circle of Respectable Opinion to include a greater concern for security. Instead, the months after 9/11 created massive demand for independent bloggers who were willing to highlight stories and analyses that the press was filtering out. And so began a hemorrhage of readers, a loss of indispensability, that would fatally undercut the hold that mainstream media had on the national attention.

In an odd way, the two errors are connected.  Because the mainstream media didn't take its loss of influence well.  In fact, it acted like a country parson who begins to deliver fire and brimstone sermons as his flock starts to dwindle. Remember the New York Times's endless campaign in 2002 against the Augusta Country Club for, um, something or other? Its attack on Bush's antiterror programs was part of that same doubled-down bet. But the mix of self-righteousness and flop sweat that infected the Times gradually forced anyone with views to the right of Manhattan's Upper West Side to look elsewhere for news judgment.