HH: Very pleased now to welcome back Gabriel Schoenfeld of the Hudson Institute. He is also the author of a very important new book called Necessary Secrets. I’ve linked it at Hughhewitt.com. Gabriel, welcome back to the program, good to have you.

GS: Delighted to be here.

HH: Now I’ve got to start with the headline, because obviously the flotilla incident is consuming news today. And all of Israel’s enemies are pounding on Israel, and the United States has sided with those enemies in condemning it at the UN Security Council. What’s your reaction to this, Gabriel?

GS: The saving grace in this story are the videos that were taken of the actual incident, which clearly shows that the Israel commandos were assaulted. They were not the aggressors in the attack. The whole world can say what it wants – The Security Council, the United States government. But the truth is there. It’s visible to the world. It was a botched operation, clearly, because the Israelis were not prepared for what ensued. They had guns that fired paint balls? And when those didn’t work, they had to resort to pistols. They did not plan this well, but they were not the aggressors. Those who staged this provocation are the ones who are responsible for the loss of life.

HH: Now Gabriel, I have been saying today that the Obama administration has been very slow to do obvious things in Louisiana, such as build berms and authorize Bobby Jindal’s lesson plan, or for the berms, and they were very quick to condemn Israel. Fast when they should be slow, slow when they should be fast. What is driving this administration?

GS: Well, I think in the case of Israel, there’s been a real animus. From the very, from pretty early on, the administration has tried to make inroads into the Arab world, primarily at the expense of Israel, hoping that by distancing itself from Jerusalem, they would somehow curry favor with the Arab street. I think it’s a mistaken assumption, and I think it’s not going to yield them the dividends that they want in the world. It’s not going to help them solve their really big foreign policy problems that we face. It’s going to isolate our one democratic ally in the region, and possibly increase the risk of war, because it makes it much, it puts much more pressure on Israel to go it alone in dealing with Iran’s nuclear program.

HH: As we talk about the increased risks of war, we also have to talk about the increased risks of terrorist attack, and that brings me to Necessary Secrets. First of all, congratulations, it’s riveting, Gabriel. And I teach Con Law, and I’ve taught the Pentagon Papers for years, I’ve taught all of these cases for years. I now have a new supplement for my class. In fact, it’s sort of, it makes the dry much, much easier to understand, and really tease the drama out of it. Necessary Secrets is just a wonderful book.

GS: Well, thank you very much. I put a lot, I put my heart into it, and I’m happy to hear your reaction.

HH: Now I want to start with the summary for the audience. Two big stories are at the heart of this book – the surveillance story that was run by the New York Times about the intercepts that we were getting of emails and some phone calls originating abroad coming into the United States, and the New York Times and the Los Angeles Times story about the SWIFT tracking system. And that was about tracking banking transactions. It’s really the story of four, maybe a half dozen journalists, Bill Keller, Eric Lichtblau, James Risen in the New York Times, Dean Baquet and a couple of others at the L.A. Times. The summary, I’ll leave it to you, Gabriel. Tell people what these two newspapers stories did.

GS: Well, in December of 2005, the Times published a story that it had for over a year, and had held at the request of the White House. It finally went ahead and published it, that revealed critical details about this National Security Agency’s warrantless, so-called warrantless wiretapping program. And by all accounts, by accounts of leading officials in the Bush White House by leading Democrats in Congress like Jane Harman, the Times story published against severe warnings that it would do harm, actually did harm, and caused us to lose some of our key channels for understanding and seeing al Qaeda communications. Some of those channels dried up. It caused, it was one of those things that really shouldn’t have been published. It was a necessary secret, and a secret that helped to keep us safe, helped to prevent a second September 11^th. And so I think it was a case of reckless journalism. The Times, of course, makes, subsequently made an issue of the fact that the program may have violated the FISA act. I think that’s very debatable. But people of good will can disagree about that. But what they can’t disagree about is the next story that the Times published, which involved this tracking of terrorist finances. It was a joint CIA-Treasury program to track the movement of funds via this Belgian clearing house known as SWIFT. There were no, there’s never been any allegations that the program was in any way illegal. It rested on valid warrants. But the Times compromised that program as well, and again, we lost critical intelligence. The funds that al Qaeda and the Taliban and other terrorist groups were moving via wire transactions no longer were moved in those ways. They were moved in ways that were much more difficult to track. So here we have a case of, I think, journalists behaving in a very cavalier fashion with our own security.

HH: I’m talking with Gabriel Schoenfeld, senior fellow at the Hudson Institute, author of the brand new book, Necessary Secrets. It is linked at Hughhewitt.com. What I want to do now, Gabriel, is play for you an excerpt of any interview I did on June 26, 2006, after the SWIFT story broke. I had on Doyle McManus, Washington bureau chief of the Los Angeles Times, talking about what this story did. I’d like you to hear it, and then comment on it. Here’s my conversation with Doyle McManus from 2006:

HH: In those meetings that you held, Doyle McManus, did the officials, including Mr. Levey, argue that publishing this information would help terrorists?

DM: They did, although it may be worth noting that by the time we were having our principal meeting with Mr. Levey and his aides, which was a meeting that lasted about 90 minutes, at which we asked them to give us the fullest and best case for not printing the story, they had already concluded that the New York Times was going ahead. And the tenor of the meeting was one in which they took as the context, that the New York Times was going to publish the story. And as a matter of fact, in the middle of the meeting we were having, one of the lawyers looked at his blackberry, and kind of rolled his eyes, and got a message to Mr. Levey, and it turned out the New York Times had posted the story at that point. So at that point, the discussion shifted from their making a case against publishing the story to their making a case…their assumption that at this point, everybody was going to publish a story, and they in fact were quite helpful in filling in some of the details of the program, to make sure we had an accurate story, as you saw later in the news conference that Mr. Levey and Secretary Snow had on Friday, I think.

HH: Now Mr. McManus, when they argued to you that publishing the story would help terrorists, did you not believe them?

DM: I did…I neither believed it nor disbelieved it. I would believe I took that seriously. It’s impossible for me to evaluate independently to what degree…whether the potential assistance to terrorists…I think they actually didn’t argue that it would help terrorists. They argued that it would disadvantage, or make more difficult, counter-terrorist programs. But that’s probably a distinction without a difference. What…would that be momentous? Would it be marginal? I don’t know.

HH: Is it possible, in your view, Doyle McManus, that the story will in fact help terrorists elude capture?

DM: It is conceivable, yeah, although it might be worth noting that in our reporting, officials told us that this would, this disclosure would probably not affect al Qaeda, which figured out long ago that the normal banking system was not how it ought to move its money, and so turned to other unofficial and informal channels.

HH: Now Gabriel Schoenfeld, that tells, there are a number of interesting things about that in light of your book, Necessary Secrets. First of all, the New York Times did take the brick out of the wall, and the wall collapsed by testimony of the L.A. Times. Secondly, Doyle McManus admitted it’s conceivable they might have helped terrorists, and they did it anyway. And third, he’s just wrong about the end of that. Of course it helped al Qaeda. It depends on how you define al Qaeda.

GS: Right, and I think it’s a fascinating interview, and I, very revealing, I wish I had heard it when I was writing, because it’s something I certainly would have included. My impression was that the papers had all done this simultaneously, with the Times and the Wall Street Journal also publishing it, doing it as an act of solidarity with the Times. It turns out it really was a competitive relationship, with the Times going first and opening the door for the others. And their culpability really is somewhat less, because after all, they were still listening to the warnings not to publish, and then of course, the wall did collapse, and the Times was out there. Yes, I think it’s common sense, it’s not hard to believe that it helped terrorists, because we see this most recently in the Times Square bombing, where the perpetrator, Faisal Shahzad, received his funds not by wire transactions, but by courier, which is a difficult way to move money across borders. But here, I think, you know, there’s probably evidence that they were still leery of moving funds through the SWIFT system.

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HH: It reads like a thriller, in many respects, it is a thriller, but it’s one with a very unhappy ending. The United States national security compromised, our country put in danger, by our elite media, not once, but twice, and the background to all that covered in great detail in Necessary Secrets. Gabriel Schoenfeld, I want to ask you a hypothetical. Like all hypotheticals, it’s hard, but it goes right to the heart of this. When the New York Times published the story about our intercepts, obviously they alerted our enemies to what we were doing, even if they had been laboring under the misimpression that communications with Americans coming from abroad were always protected. Do you think it is possible that had that story not been published, Major Hassan would have been stopped because of his communications with the Yemeni resident imam who is the radical voice behind jihad?

GS: Well, I’m not sure, because in that instance, it appears from what I know that we were listening into those conversations, and just our analysts failed to understand what was being said.

HH: Well, we knew some of them. I’m wondering if we knew them all as a result of this.

GS: Well, I don’t know the answer to that, but I think here, from everything I know about that, it was an appalling lack of judgment by intelligence officers who are in the military, who were so anxious not to give offense to some Muslim soldier that they overlooked those communications. But no, it’s a possibility.

HH: What about Abdulmutallab, and the Times Square bomber? You’ve already mentioned that the courier to the Times Square bomber had to have used a system that was beyond our SWIFT system.

GS: Well also, in that case, he was also using disposable cell phones, which were beyond the NSA wiretapping system. And he was communicating with Pakistan via those disposable phones. It’s pretty clear evidence of some attempt to evade our electronic surveillance of the kind of that Times did disclose.

HH: One of the things I love about this book, Gabriel, is that you illustrate how our enemies have over the decades responded to what they’ve learned about our intelligence gathering. They are living, breathing, thinking organizations that read our newspapers very closely, as the Japanese did during World War II.

GS: Right, and even more dramatically, I think, in the years before World War II, when the Japanese learned, thanks to an incredible security breach here, learned that we had broken their codes in the 1920s. and this revelation by an American, retired American cryptographer, who published a book called The American Black Chamber, Herbert O. Yardley was his name. His book was treated here like one of those sensational books by James Risen or Eric Lichtblau, you know, as wonderfully entertaining. In Japan, it caused a furor. It led the Japanese military to invest heavily in cryptography over the course of the 1930s to the point where the United States cryptography effort, our ability to track and break Japanese communications, break their codes, was slowed down. And we did not know that Pearl Harbor was the point of attack, the planned point of attack, precisely because we were not reading military communications at the time. They were too heavily encrypted.

HH: Now you spent a lot of time doing biography in this book, like on Yardley, like on Robert McCormick, on many other people, Ellsberg. And I’ll come back to that. But there isn’t much on Lichtblau, Risen or Bill Keller. Why?

GS: Well, I do have a fair amount about them. I don’t have a lot about their personal biographies, but I think in the case of Risen and Lichtblau, I give a fair amount of information about their politics and motivations, which were kind of mixed, I would say. I mean, both of them have written books that make pretty clear their animus toward American foreign policy as it was conducted by the Bush administration. They saw it as something that was being conducted by, you know, in Risen’s case, he called it a neoconservative cabal. I’m not sure if I’m quoting him exactly, but something like that. They were liberals versus conservatives, and they were using their powers as journalists to try and fight the administration. I think that’s fairly clear. And these leaks were a weapon in that war. I think I conveyed fairly well exactly what they were up to.

HH: Well, that part, yes. I wanted to know more, for example, about Bill Keller, who had previously written a great New York Times magazine piece on the nuclear threat to New York, and then he was passed over for editor, and then he became editor. And I wonder if he felt the need to be more Harold than Harold. And these other guys are just lefties, and what was their rootedness, like Ellsberg. I thought your portrait of Ellsberg was just brilliant, and very disturbing. He’s just an egoist. Did you see the movie Ellsberg, by the way, that self-produced paean to himself?

GS: No, but I’ve met him on a few occasions. He’s a very charming man, but yes, egoist is the word.

HH: Yeah, he’s just driven all about himself. Now let me ask you then the hard questions.

GS: I’m sorry, go ahead.

HH: You talk about the definition in the book of treason. Is it reasonable, not if it’s certain, but is it reasonable for reasonable people to conclude that these reporters and this editor committed treason as defined by the Constitution?

GS: No, because there’s two parts in the treason clause. One is aid and comfort to the enemies. One can make a case that these leaks provided aid and comfort to the enemies. But they also have to adhere to the enemy. In other words, you have to favor the enemy’s cause. That’s not what they were up to. They, for whatever one makes of it, believe that they’re doing a public service.

HH: Okay, so that’s clear in the book. Number two, is it reasonable for reasonable people to conclude that they violated the Espionage Act?

GS: I think the Espionage Act is a pretty opaque statute, and there’s some intents clauses in there that make it pretty hard to prosecute journalists under the Espionage Act per se. But there are other espionage statutes which I think they very clearly did violate.

HH: That’s what I…

GS: And one of them is called Section 798 of Title 18.

HH: The Comment Act, right?

GS: The Comment Act. It makes it a crime to publish classified information pertaining to cryptography and communications and intelligence. That’s precisely what was at issue in the NSA wiretapping story. Now even leading defenders of the New York Times, like Morton Halperin of the American Civil Liberties Union, and George Soros of the Open Society Institute, have acknowledged that this probably was a violation of the law. They say the law’s unconstitutional, but I say well, if that’s the case, let’s have a test.

HH: Yeah. And I wanted to make sure people understood you’re not arguing that they’re treasonable. They’re arguing they might have violated the Espionage Act, that they probably violated the Comment Act, and they may have violated other laws. That’s a fair summary that I think is very carefully developed here. It’s not an overzealous prosecution. This is not an ideological book. I thought this was a very deliberate and scholarly book. I wanted people to understand that. But you also raise the possibility that it might be reasonable to conclude they did this for the money. Explain to people.

GS: Well, I think that money is a factor in evaluating anyone’s behavior. And financial incentives are a factor. You know, journalists are looking all day, every day at corporations and how they behave, and why are executives behaving in certain ways. Well, journalists also operate inside of corporations. They’re subject to financial incentives. And getting a Pulitzer Prize, you get a $10,000 check. You also get a raise, you get a bonus. You can get a bestselling book out of it. Publishing a story with classified information sells books.

HH: And you get fame, which becomes an industry unto itself, as the example of Ellsberg shows us.

GS: Right, and what’s extraordinary, what I found was really extraordinary is the Times’ has its own very strict rules against appearing to profit from a story. Those rules are in place, but they are not in the least observed, because here was a case where journalists really did, I don’t know if they, I believe they did profit, and they certainly appeared to profit. The Times didn’t every punish them or even raise that question.

HH: Yeah, it’s pretty remarkable.

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HH: Gabriel, Bill Keller, the editor of the New York Times, has offered a number of defenses of his action. All are completely and fairly covered in your book. And are they, in your opinion, remotely, historically accurate when it comes to the record of what the media does, and what it ought to do, Constitutionally and legally?

GS: Well, I think they said that they provoked a big debate in this country about the legality of this, of the National Security Agency’s wiretapping program. Yes, it’s true they created that debate. And I think there’s something to be said for their position. I disagree with it, and I think the costs of the revelation really outweighed whatever benefits came from having that debate. His justification for the other story, however, really is just paper thin, and I think dissolves, the idea, that they had, really, no justification for publishing the story about the SWIFT banking/tracking program. And I think they recognize that they’re on very thin ice on that one, and don’t make quite such an effort to talk about it any longer.

HH: I also believe that their arguments about what the tradition of American press freedom has meant is revealed by, and I mean, just wholly made up in some instances, full of straw men, red herrings, and bad history.

GS: Well, they claim an absolute right to print whatever they would in this area of national security. Well, it runs counter to what the laws are that are on the books, and it certainly runs counter to what the framers had in mind when they drafted the 1^st Amendment, which was not seen as an absolute license to print anything at all. And of course, we have laws on the books of all sorts, and common law precedent, that prohibits certain kinds of things from being published. We have laws on libel, we have laws governing obscenity, we have laws governing commercial speech. It’s hard to imagine that you could make a case that you could print secrets that endanger the Republic, and yet you can’t make a claim that Crest makes your teeth brighter than Colgate. That might be illegal if it’s false, while it’s legal to reveal secrets that put the Republic at risk? No, I think it’s a nonsensical position, but it’s the ones they adhere to in public. Dean Baquet of the Los Angeles Times says that newspapers can print whatever they would, no matter the cost.

HH: Yeah, that’s a remarkably incorrect statement of law and tradition. But you catalogue the dysfunctions of our mainstream media. And at the bottom of it, and let me be clear, there are many great heroes in the media, like John Burns and Dexter Filkins and other reporters who are guests on this show, frequent guests. I like columnists, but a lot of these guys are driven by, I think, a sense of frustration, Gabriel. They want to be heroes. They want to be, you know, on the barricades. As you point out, Baquet and so many others came up during the Nixon era, and they think they’re all Woodward and Berstein, and they’re all up against Nixon. And in fact, they’re self-serving, self-interested egotists, often, without a good concept of the American interest. Have any of them been willing to debate you, or any well-prepared opponent, of their disclosure policy?

GS: I’ve been on panels with some of the editors of the Times. And you know, they make their case. They’re smart people. We end up disagreeing pretty profoundly. I was on a panel with James Risen, however, and really, I found him to be unable to make his case. He just kept muttering that my argument was just all political, which it’s not. I really try to get to the bottom of our Constitutional structure to understand what are the scope of legitimate journalism, where does one draw the line about secrets. He was really unwilling to engage in an open debate about it.

HH: Gabriel, I’ve got a, here’s my opinion. I’d like your reaction to it. I have heard Lichtblau, I’ve seen Risen, I’ve read Keller. They’re not that smart. They are not well-read. They are not well-informed. They have not done their homework. They are creatures of emotion. I don’t think they can debate this, because I think if you threw at them the fact that Bill Keller is acting like Col. Robert McCormick, there’d be a good chance he did not know the details of Robert McCormick’s conduct up to and including World War II. Your reaction?

GS: I’d love to have the opportunity to debate Bill Keller on these issues. Yeah, I really don’t know whether these people have historical minds, that they, you know, journalists spend a lot of time tracking down the story of the moment. Journalism schools are not big on history. And there’s a lot to be learned from history. I mean, this case of Robert McCormick truly is fascinating, how during World War II, this ardently isolationist newspaperman, a publisher of the Chicago Tribune, published several major leaks, one of them suggesting that we had broken the Japanese codes right after the battle of Midway. If the Japanese had paid attention to the story, which fortunately, they didn’t, thousands more American soldiers could have died. We would have lost a critical window into the activities of the Japanese military.

HH: Yeah, it’s remarkable. In fact, at the conclusion of the chapter, I wrote in my notes, Robert McCormick is Bill Keller, and Bill Keller is Robert McCormick. They have radically different ideologies, but operationally, they’re the same guy.

– – – –

HH: Gabriel, one of the fascinating parts of your book is that you prove, I think definitively, it ain’t always been this way, and the stories of William Lawrence and Edwin James, the quote by Joseph Alsop, I am proud that they, the CIA, asked me, proud to have done it, meaning he served for them, Lawrence and James being the duo that FDR’s team recruited to cover the Manhattan Project, or at least helped the coverage. It has not always been that the American media was anti-American in its affect, even if it says it is pro-American in its rhetoric.

GS: That’s right. I mean, if you look back at the coverage of the wars that we’ve been in, in the past, World War II and the Korean War, the media would report the movement of our troops. They didn’t report about the U.S. troops. They saw themselves on the side, and it was the American side. Now, there’s a distance. And you know, we saw this most dramatically in an NPR program with Mike Wallace and Peter Jennings, who were asked by the host of one of these discussion shows what they would do if Americans, they were covering American soldiers and those soldiers were about to be ambushed by North Vietnamese guerrillas, would they warn them, or would they keep the cameras rolling? And both, Mike Wallace said immediately keep the cameras rolling. We’re journalists first. Jennings vacillated a little bit before joining in. This is a new attitude. It’s a pretty astonishing attitude. It’s I think an appalling attitude. But I think it does, to some degree, reflect the kind of mentality that leads journalists to publish secrets which endanger our security. There’s a sense that they’re not on our side, that they’re somehow above the fray. They’re not supporting the enemy, but they’re somehow just reporting on this in a vacuum, where their actions have no consequences. But they do.

HH: It’s clearly not a sense, in my view. I think that you have proven the case. They are effectively anti-American. At least they were during the Bush years. I’m not sure that they’ll ever wound Obama the way they wounded Bush, or tried to. But I also think they’re cowardly. You point out Ellsberg never ever was willing to accept the consequences of civil disobedience, and didn’t proclaim himself until the end was near, he had to go to trial. Thomas Tamm is one of the leakers to the New York Times. You talk about him on Page 263. He’s just a political hack in the Department of Justice who didn’t like Bush, had different ends. I think it’s at our peril, and I’m glad you did this, that we dress these people up in patriotism. They’re not. They’re often just craven.

GS: Well, I think yeah, and we should distinguish between the leakers, the people inside the bureaucracies who leak to the journalists, and the journalists themselves, because the leakers, I mean, they’re really in a reprehensible position. They are, they have sworn an oath to protect the classified information which they deal with. And when they violate that oath, they’re not only breaking their word, they’re also violating a whole host of laws. And I don’t think there’s any ambiguity about that. The problem there is that they’re very difficult to catch. I mean, when you’re dealing with some of these secrets, there are hundreds of people within the government who have learned of them, and they’re hard to track down exactly who leaked them to the reporters. I mean, we should point out, just to be balanced and fair, that leaks are part of the currency of our government, and not a day goes by without classified material making its way into the press. And it’s part of the way we’re informed about what’s going on. What’s new, and what I’m trying to point out, is those leaks, particular leaks that spill secrets that are operational counterterrorism, counterintelligence programs, those secrets are different. They’re not part of the ordinary currency of how we’re informed. Those are the necessary secrets that the press should not publish. And when it does, it should be called to account.

HH: You know, on Page 34, you mention operational. Risen calls up Mike Hayden, at the time the head of the NSA, and tells him we’re going to run this story. And Hayden, in what lawyers would call an exclamation, an excited exclamation that adds veracity, he says this is intensely operation. That’s a direct quote. He’s trying to communicate to them this was not like the Pentagon Papers, a history. This was the right here and now. We were tracking terrorists this way, and the New York Times exposed what we were doing.

GS: Right, and what’s really extraordinary there is that the Times sat on the story for a whole year. And they say, when they published it, only because further information had come to light about division within the government about the legality of the program. I think that’s a false story. I think the real story is, and I have evidence to show that and I put it forward in the book, that the Times was afraid of being scooped by its own reporter, because James Risen had that same story in a book that was coming out the following month, January of 2006. And if the Times didn’t publish it, their own reporter would publish it in a book, and that would have put them in an untenable position.

HH: In fact, on Page 264, you write newspapers are profit-seeking institutions. And I think we have to keep that in mind, despite their posing in public. Risen was furious. I think you said beyond furious that they sat on the story for a year. I mean, that was denying him his chance to be strutting about on the stage, trying to be Ellsberg, circa 2006.

GS: Right, I mean, and it’s not just that newspapers are profit-seeking institutions, but journalists themselves are like the rest of us. We want to remodel our kitchens or their bathrooms. They want that extra cash. They’re not living, they’re not the most well-paid people in the world. And when there’s a chance to rake in money by writing a bestselling book, they leap for it. And if that involves publishing secrets, well, there’s a strong incentive to do so. And I think the public should be aware of those incentives. I mean, they’re not always acting from bad motives, but when they are, we should know, just like we know when British Petroleum is doing something that we disapprove of.

HH: Now on Page 123, you write, impunity breeds impunity. And as you pointed out, it begins with Herbert Yardley, it goes through Ellsberg, and then Snept, and then up to Lichtblau and Risen and the rest of them. It seems to me that what you’re charting for us is a downhill slide where now the press will print everything. And the Progressive was just a nutty, little magazine. I loved your retelling of that. But now, the big guys will print anything if it serves their interest, regardless of impact to America. Do you agree with that, where we’re headed?

GS: Well, I’m hoping that there’ll be some change. I think, you know, what I’ve tried to do in the book is to launch a discussion. I’d actually written about this in Commentary magazine three years ago. And what I’m really astonished by is that the Times has reviewed my book, and that the review actually concedes that the paper was wrong, that I argue persuasively the paper was wrong to run that NSA wiretapping story. The New York Times itself has a review saying that. That’s a change in the culture underway. And it’s somewhat encouraging, although I think we’re still going to see these kinds of dangerous leaks in the future.

HH: Has it been widely reviewed? We have about thirty seconds to the break. Is it getting the attention it deserves?

GS: Yes, it’s getting attention in the Washington Post and New York Times, Wall Street Journal, a number of other publications.