Hoisted from Two Years Ago: Jack Goldsmith Tries Patience with Michael Kinsley and the New York Times
Tries Patience with Michael Kinsley: "Why Kinsley is Wrong About the Connection Between Democracy and the Publication of National Security Secrets:...:
...Michael Kinsley, in his review of Glenn Greenwald’s book made the following claims about leaks of national security secrets:
The question is who decides. It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy (which, pace Greenwald, we still are), that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making--whatever it turns out to be--should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Glenn Greenwald...
I disagree with Kinsley, as both a descriptive matter and a normative matter.
As a descriptive matter, the press does effectively have the final say over the publication of U.S. national security secrets. The only constraints are the weak ones of marketplace... and even weaker... legal constraints in practice. We have been moving toward this system of journalistic hegemony for a while, and the trend has been exacerbated by digital technology and the globalization of media.... I think Kinsley is also wrong about the normative question.... The government should not have the final say about which of its secrets is published.
Government action undisclosable to the American public is presumptively illegitimate. We tolerate secrecy to some degree because it is necessary for national security. But such secrecy runs the risk of getting out of control, and of fostering illegal or illegitimate action, or simply action that the American people does not approve of. The government, like all institutions, is imperfect--self-interested, myopic, under-informed, biased, prone to mistakes, motivated by glory and power, and the like. If the government had the final say on its secrets, it could define the world of secrecy as broadly as it wanted, in a self-serving way, and shield its actions from a democratic (and judicial) check--an especially dangerous prospect during endless war where the claims of secrecy are greater....
From my standpoint, there are two important issues here: The first issue is: who decides to publish? The possible answers are:
The security agencies, via the ability to impose prior restraint that is either unreviewable, or not reviewed by a White House or judiciary that as a rule routinely defers to the security agencies.
The White House, via the ability to impose prior restraint that is either unreviewable, or not reviewed by a judiciary that as a rule routinely defers to the security agencies. The judiciary, which undertakes a rapid and comprehensive level playing-field de novo assessment of security agency or White House prior restraint claims.
The media, which decides whether to publish or not.
The second issue is: what sanctions and incentives do other players have available to impose on the decider?
If the decider is the security agencies, it fears--to some degree--alienating the White House, which itself fears creating points of political vulnerability by challenging the security agencies.
If the decider is the White House, it fears creating points of political vulnerability (and damage to the national interest) by exercising or failing to exercise its powers of prior restraint.
If the decider is the courts, it does so within a legal framework of reasons for prior restraint set out by laws passed by congress.
If the decider is the media, it does so within a framework of penalties for breachers of security set out by laws passed by congress, by the nerve of the White House in its willingness or lack of such to prosecute under those laws, and by what judges and juries will think when the cases reach them.
A good review of Greenwald would have laid out Greenwald's position--(4), with extremely tight legal, institutional, and public-relations constraints on government ability to pursue ex-post legal process against leakers: no locking them away for years in solitary confinement and only exhibiting them to the public after sensory deprivation and other harsh interrogation measures have broken them. It would have given the pros and cons of (1) through (4), and it would have sketched out how, legally, institutionally, and bureaucratically, to best structure (1) through (4) in order to give the deciders the incentives to do the right thing.
But that is not what Kinsley does.
We do know where Kinsley comes down:
that decision must ultimately be made by the government.... The process of decision-making... should openly tilt in favor of publication with minimal delay...
Kinsley is calling for (1) or (2) on the first issue: for the decision to be made by the security agencies or by the White House. And he completely ignores the question of how, exactly, incentives can be crafted to create a process that 'openly tilt[s] in favor of publication with minimal delay...' He thus assumes a magic sparkly unicorn pony: it's not a serious qualification to what is an extreme position.
That's how Goldsmith reads Kinsley. That's how I read Kinsley. That's how everybody I have checked with reads Kinsley.
Now comes Michael Kinsley:
Michael Kinsley: 'Quis custodiet ipsos custodes?': Who will protect the public... ...from the public editor?... Her scolding of me... Margaret Sullivan writes that I believe ‘that news organizations should simply defer to the government’ on the issue of making secret documents public. I guess I wasn’t clear (though I don’t know how I could have been clearer). The government sometimes has legitimate reasons for needing secrecy but ‘will usually be overprotective’ so the process of decision ‘should openly tilt in favor of publication with minimal delay.’ Does that sound like I’m saying that news organizations ‘should simply defer’?
Well yes, it does.
The phrase 'with minimal delay' does make it sound like that.
Kinsley's statement that the process 'should openly tilt in favor of publication with minimal delay' means that news organizations are subject to prior restraint, and therefore must simply defer.
If that is not what Kinsley meant, he should have said that the process:
should openly tilt in favor of publication without prior restraint by the government,
should openly tilt in favor of publication with at most one week of prior restraint for a level playing-field de novo assessment by the judiciary.
He could indeed have been a lot 'clearer'.
Then Kinsley reverses field, and says that news organizations should simply defer to the government's judgment, for they cannot be trusted to know when they should defer to the government's requests for secrecy--that, yes, there should be prior restraint:
Do the people on the other side of this argument believe that the government never has a legitimate need for secrecy? (Standard example: the time and location of the D-Day invasion.) Or do they believe, as I do and as I say, that occasionally the government is right to want secrecy and in those instances it should not ‘simply defer’ to the press? And if so, how should it go about exercising that right?
And then Kinsley's argument stops for a while:
Sullivan accuses me of a ‘sneering tone’.... I call Mr. Greenwald ‘a go-between.’.... I can sneer a lot worse than that if called upon to do so.... When Sullivan says, ‘there clearly is a special role for the press in America’s democracy…and the United States courts have consistently backed up that role,’–and when she offers those vague cliches as serious analysis, she is talking through her hat....
Do I want to have sent Dan Ellsberg and Neil Sheehan to jail for leaking? (And it’s odd that every negative comment on my review uses these same two examples. It’s almost as if–well, never mind.) Like most people except Glenn Greenwald, I think the issue is complicated and I have other things to do.... Sullivan says my review is ‘unworthy of the Book Review’s high standards.’ That is meant to sting, and it does. You might even call it a sneer, if the public editor weren’t above such things...
And when Kinsley does pick up his argument once again, he has once again reversed field. Kinsley has suddenly adopted position (4): news organizations as the deciders:
But the answer to the Ellsberg-and-Sheehan question is, no: it should be an affirmative defense that any leak was–in hindsight–in the public interest...
And I say: you cannot do that. If you call at the start for prior restraint, either version (1) or (2)--even with the proviso that there should be a strong bias somewhere in the system for lifting the prior restraint 'with minimal delay'--you cannot at the end talk about how in post-publication adjudication there should be 'an affirmative defense that any leak was–in hindsight–in the public interest'. That is specifying the legal framework for (4). It's simply not a coherent position. It's simply not an argument.
Shame on Michael Kinsley. And shame on the Book Review editor, Pamela Paul, who claims:
[The intention was not to produce a particular point of view or to somehow exact revenge.] We chose Michael Kinsley, a frequent contributor to the Book Review (he recently reviewed ‘Double Down’ for us, and before that ‘Going Clear’), because he has decades of experience in news journalism as well as in book criticism, has written extensively about the media and current affairs, and is thoughtful and smart...
As I wrote yesterday: How dumb does Pamela Paul think we are? You hire Michael Kinsley only when you explicitly want his 'particular point of view'. That's what he does--he does not bring deep substantive expertise or the ability to produce a balanced assessment of arguments or an ability to draw a bright line between matters of empirical fact and matters of philosophical value. He brings his particular point of view.
And in this case he doesn't even do that. What is his position? Prior restraint? Or no prior restraint with public interest a very strong ex-post affirmative defense? If prior restraint, what legal-institutional-bureaucratic framework to give effect to a 'tilt in favor of publication with minimal delay'? If no prior restraint, why the bloviating about how the decider on whether there should be publication or not 'cannot be Glenn Greenwald'?
It's simply word-salad: After reading Kinsley's review, the critics, and Kinsley's reply, I genuinely have no idea whether Kinsley is in favor of prior restraint or not, if he is in favor of prior restraint how and by whom it can be lifted, and what institutional-bureaucratic-legal-political framework he wants to govern the incentives of those who do make the ultimate decision to publish. I know nothing of what Kinsley thinks should be done. Indeed, I know little of what Kinsley thinks.