The Espionage Act and the “New York Times”
To the Editor:
Gabriel Schoenfeld illuminates one horn of the dilemma posed by unauthorized disclosures of classified information [“Has the New York Times Violated the Espionage Act?,” March]. Certainly the government has the authority and the duty to protect the nation against disclosures that could genuinely threaten national security. But there are reasons why prosecutors have never yet chosen to adopt Mr. Schoenfeld’s single-minded view of what the law requires.
When the New York Times disclosed the President’s warrantless surveillance program last December 16, it was not the first time in recent years that the strictures of Section 798 of Title 18 of the United States Code had arguably been violated. It was not even the hundredth time.
Newspapers and books have routinely purveyed stories involving classified communications intelligence for decades, and in several cases their authors have been rewarded not with prison but with prizes and celebrity status (think Bob Woodward, Seymour Hersh).
Nor are the offending publications all purportedly “liberal” in orientation. Almost certainly the most prolific conduit for publication of classified information, including communications-intelligence information, has been Bill Gertz of the Washington Times, who throughout most of the Clinton administration reported directly from classified sources just about every few days, and still does from time to time.
Yet these celebrated reporters still walk freely among us despite the fact that, if intelligence officials are to be believed, their stories have degraded intelligence methods and cost taxpayers many millions of dollars.
The point is that, while government agencies pursue leakers of classified information with whatever tools they can muster, it has long been accepted government practice to keep hands off the press that publishes the information. Have prosecutors somehow remained ignorant of the statutes that Mr. Schoenfeld so acutely analyzes? Probably not.
Rather, it appears there are competing societal interests at stake that until now have induced government to adopt a kind of constructive ambiguity on the matter and, in practice, to renounce the power to penalize press outlets.
What are those competing societal interests? One is the important role played by the press in the process of policy development. Without romanticizing the press or ignoring its evident defects, it seems objectively true that news coverage plays an integral role in the daily operation of government. Both for good and for ill, the news media help to set the public-policy agenda and to drive the congres-sional-oversight process. Efforts to impose new legal barriers on press coverage could have unpredictable adverse consequences.
Another societal interest is the ability of the press to compensate for unwarranted official secrecy by publishing information that should not or need not be classified. While it is true that the nation’s most sensitive secrets are classified, not everything that is classified is sensitive. In fact, the classification system has become a bizarre confection of genuine national-security secrets, bureaucratic fetishes, self-serving political manipulations, and inconsistencies. One example: the 1997 intelligence budget total was declassified in October 1997, but the 1957 and the 1967 budget totals remain classified. Why? Because the CIA says so! There is no other discernible reason.
I recently acquired a historical document that indicates that the 1972 budget appropriation for the National Security Agency was $65.2 million. This information remains classified, and is not acknowledged even today by the NSA. Furthermore, since it pertains specifically to communications-intelligence activities of the United States, albeit historical ones, my knowing and willful disclosure of it could conceivably be in violation of the same Section 798 that Mr. Schoenfeld suspects has been traduced by the New York Times. Should I therefore be prosecuted? Should Commentary be penalized for publishing the information in this letter? That would be absurd.
There seems to be, however, an unstated bargain with government that the press will not abuse this freedom beyond a certain point. The most influential purveyors of classified leaks also tend to be the most responsible in their editorial processes, consulting government officials prior to publication and offering them opportunities to argue against disclosure. As is well known, the New York Times held back its story on warrantless surveillance for a year.
Of course, not all classified secrets that might come into possession of the press are trivial and inconsequential. One can imagine circumstances in which a news organization commits such an outrageous breach of faith by publishing sensitive secrets as to invite public opprobrium and nullify the government’s tacit acceptance of the freedom to publish classified information.
Has the New York Times committed such a breach with its warrantless-surveillance story? I doubt it.
Federation of American Scientists
To the Editor:
The title of Gabriel Schoenfeld’s article is misleading. If the Times broke the law (and Mr. Schoenfeld is correct, in my view, that it did), it was not the Espionage Act but rather a separate and very specific statute that makes it a crime to publish communications intelligence. Be that as it may, however, the important question is not whether there was a technical violation of the statute but rather why the information was given to the Times and whether the paper should have published it.
The Foreign Intelligence Surveillance Act of 1978 (FISA) was passed after a series of leaks to the press revealed that Presidents had improperly used their power to conduct warrantless surveillance to spy on their political opponents while also gathering legitimate foreign intelligence. Congress wanted to make clear—to intelligence officers, Presidents, and private citizens alike—the circumstances under which it was appropriate to conduct electronic surveillance; it also wanted to have judges supervise the process. FISA was successful beyond anyone’s expectations. It permitted far more surveillance for legitimate purposes than had ever been done, and it prevented abuses. There were also no leaks about its workings.
When President Bush made the momentous and, in my view, clearly illegal decision to authorize warrantless surveillance, he broke this bargain. The result was that many officials were concerned about what the government was doing, and one or more of them went to the press as others had done prior to FISA’s enactment.
The administration has said that it did not go to Congress to seek an amendment to FISA after the attacks of September 11 because it did not believe that it could get the law changed without information leaking out that would jeopardize the new program. It has never elaborated on that implausible explanation—implausible because Congress’s record in enacting and amending FISA showed that it could be done without leaks, and because ordering this warrantless program was itself almost guaranteed to produce leaks.
What should the Times have done when it received the information? Exactly what it did do. Not rush to print but rather seek to verify the story and give the government ample opportunity to persuade the paper that the story should not run or that some details should be withheld. The Times has never explained why it held the story for a year or why it then decided to print it; nor do we know what specific facts it withheld.
Mr. Schoenfeld argues that the paper committed not only a shameful act but a crime. My view is that it may have violated a criminal statute but that its conduct was far from shameful. There is no evidence to back up the claim that the Times published the story as a reflection of the views presented on its editorial page about the government’s conduct of the war on terror. The separation of those two functions at the Times is well known, and the delay in publishing the story reflects far greater deference to the government’s views than is evident in its editorials.
The key question is whether the story published in the Times was likely to cause harm to national security. The Times concluded that it would not and that the public was entitled to know about a program that many consider to be illegal. Mr. Schoenfeld argues that the leak must have caused harm. He suggests that al Qaeda learned from the Times article that the NSA had “succeeded” in listening to all of its conversations. But the December 16 story said no such thing, only that the government was trying to intercept some conversations without a warrant. It is true that al Qaeda may be sloppy from time to time in how it communicates, but surely not because it did not believe, long before the Times published its story, that the NSA was trying to listen to its conversations. All the story revealed was that the NSA was listening to some calls without a warrant—not how successful it was or even under what circumstances it was trying to listen in.
The way to move forward to protect national security is not to indict the Times but to have the government explain what new authority it needs and then to have the Congress consider further amendments to FISA.
Open Society Institute
To the Editor:
Gabriel Schoenfeld raises a legitimate if somewhat provocative question in “Has the New York Times Violated the Espionage Act?” The case he presents is compelling, but in the end his assertions about the reach and intent of the 1917 Espionage Act are highly troubling.
During the 90 years of the law’s existence, no one in government has attempted to push it in the direction Mr. Schoenfeld advocates, because to do so would have been constitutionally questionable and politically incendiary. It would also have stunted vital governmental processes and subverted political discourse.
Contemporary political conditions are even more inhospitable to such adventurism. The nation’s capital has become an information-detention center. Thousands of federal employees are generating secrets at a breathtaking pace, even reclassifying material that has been in the public domain for decades. Congressional oversight has been tepid. Courts have been deferential. In these circumstances, the press remains one of the most important guarantors of effective political inquiry and discourse.
The federal prosecutors who chose to go after two recipients of leaked secrets in the AIPAC case dramatically broadened the scope of the Espionage Act. Prosecuting the New York Times or other members of the press for a practice that has proved repeatedly to be in the public interest would go even farther. Even the government prosecutors in the AIPAC case concede that applying the Espionage Act to the press “would raise legitimate and serious issues and would not be undertaken lightly.”
Their caution is well founded. To put in the hands of government officials unprecedented power to punish the press for publishing truthful information of real public concern is a frontal assault on the First Amendment. It assumes an infallibility on the part of political leaders that is not warranted given the reality of governmental abuse, mistakes, and miscalculations.
To interpret the Espionage Act in a way that equates journalists engaged in democratic discourse with spies engaged in perfidy would make the nation less secure as well as less free. Meaningful discourse about things that matter would be reduced to only those facts that are officially sanctioned, a prospect chilling enough even if all secrets were responsibly made and truly essential to national—as opposed to political—security.
First Amendment Center
To the Editor:
I completely agree with Gabriel Schoenfeld’s analysis that the New York Times should be prosecuted for violating the Espionage Act of 1917—right after George Bush is impeached for violating the Fourth Amendment of the U.S. Constitution. You do not have to be a constitutional lawyer to realize that
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
prohibits the NSA wire- tapping operation. But we would, of course, not know about that operation without the “treasonous” action of the New York Times.
To The Editor:
I am sure that Gabriel Schoenfeld’s call for prosecuting the New York Times has no political motivation whatsoever and could be sustained without the absurd proposition that al Qaeda never suspected its communications might be under surveillance. I am equally sure that Mr. Schoenfeld’s interest in investigating the Times for (possibly) breaking the law and his total lack of interest in investigating the administration for (almost certainly) breaking the law can be explained somehow (good luck!). What remains uncertain is who, exactly, benefits from this concern for state secrets and complete disregard for both the Bill of Rights and the checks and balances of our Constitution. What does seem clear is that positions like his, heartily supported by the most secretive White House in history, are making a mockery of democracy in this country.
To the Editor:
If letting the public know that we have a law-violating President who needs to be impeached violates the law, I only hope the New York Times continues to violate the laws of tyrants.
E.W. Scripps School of Journalism, Ohio University
Gabriel Schoenfeld writes:
In the brief interval since my article appeared, the issue of government secrets has gone from hot to scorching.
First, the Justice Department’s criminal investigation into the NSA leak is proceeding apace. A parallel investigation is under way into a story by Dana Priest that appeared in the Washington Post last November, reporting that the CIA had established clandestine prisons for al-Qaeda suspects somewhere in Eastern Europe. Already one high-ranking CIA officer, Mary O. McCarthy, has been dismissed by the agency for allegedly playing some role in the unauthorized disclosure.
Second, two other proceedings involving government secrets, the I. Lewis “Scooter” Libby case and the AIPAC case, continue to generate new and controversial revelations as they head toward trial. Opening a new front in the leak wars, the FBI has been attempting to retrieve classified documents, apparently connected to the AIPAC case in some way, from the estate of the late investigative journalist, Jack Anderson.
Third, the broader journalistic fraternity has circled the wagons around the journalists and media outlets that published the leaks. In March, James Risen and Eric Lichtblau, the two Times reporters who broke the NSA story, were awarded a Goldsmith prize by Harvard’s Joan Shorenstein Center on the Press, Politics & Public Policy. In April, the two won a Pulitzer prize, as did the Post’s Dana Priest.
In its news pages, the Times has twice taken brief note of my article and the controversy surrounding the paper’s actions. In a story appearing in early February, Bill Keller, the Times’s top editor, defended these actions on the grounds that the NSA story had “prompted an important national discussion of the balance between security and liberty.” In subsequent weeks, and particularly after the Goldsmith and Pulitzer prizes were awarded, he expanded and amplified his remarks, praising his paper and its reporters for making known a “highly secret program” in the face of vigorous official objections:
It’s rare that the government makes a concerted, top-level appeal to hold a story (I can think of only four or five instances in my nineteen years as an editor), and it’s even more rare that we agree. But we take such appeals seriously. We gave senior officials an opportunity to make their case. They laid out a detailed argument that publishing what we then knew would compromise ongoing anti-terror operations.
After the Pulitzer was announced, the Times, in a full-page advertisement congratulating Lichtblau and Risen, observed that the NSA story “was extraordinarily difficult to report,” especially because the two reporters “had to win the trust of those in the government who [knew] about the program,” and that the “peril [was] so great for public officials who talked about it.” It then concluded by suggesting that the story had caused little or no damage to national security; after all, the NSA program itself had “uncovered no active al-Qaeda plots and [had] led investigators to only a few potential terrorists in the country whom they did not know about from other sources.”
These developments and statements are useful to bear in mind as I respond to my critics. Let me begin with Mark Kuperberg, whose main point is that George Bush should be impeached for initiating the NSA program. Waxing sarcastic, he expresses gratitude to the Times for its “‘treasonous’” conduct in bringing Bush’s actions to light.
But, of course, not every violation of the Espionage Act constitutes treason. The statute encompasses a number of lesser offenses, and those are what I was discussing in my article. I never accused the Times of treason or even mentioned the word. Seeing Professor Kuperberg attribute it to me in quotation marks is another reminder, if one were needed, of how political discussion is routinely conducted in the academy these days.
Nor did my article concern itself with the question of whether Bush committed an impeachable offense in connection with the NSA surveillance of terrorists—as Joe Bernt, another professor, assumes in his declamatory missive. Even if it could be conclusively shown that President Bush had somehow violated the law—and, pace Morton Halperin, that proposition remains debatable—it would still leave unresolved the issues surrounding the actions of the New York Times in disclosing highly classified government secrets.
As I noted in my article, the secret NSA program revealed by the Times was not a case, like Watergate, of the executive branch of government running amok and trampling on civil liberties for personal or political gain or other nefarious pur- poses. Justice Department lawyers had reviewed the program at length, and leading members of both parties in both chambers of Congress were briefed about it on numerous occasions. If any of those members of Congress had objections to what the NSA was doing, they had a variety of proper means by which to register their dissenting views, and even to seek legal redress, without turning to the press.
Government officials in the executive branch likewise had other avenues. As I pointed out in my article, intelligence officers who uncover illegal conduct have, under the Intelligence Community Whistleblowers Act of 1998, a set of procedures that allow them to report misdeeds through classified channels and that ensure their complaints will be duly and properly considered. These procedures emphatically do not encompass blowing vital secrets by disclosing them to al Qaeda via the New York Times.
In this connection, it is worth reflecting on Bill Keller’s comment about the great “peril” to which public officials exposed themselves for revealing government secrets to the Times. Are these “whistleblowers” heroes, as the Times and other newspapers like to portray them, or something else entirely?
One way to answer this is to consider the oath that government employees must swear before being granted access to official secrets. The oath is contained in a standard document entitled “Classified Information Nondisclosure Agreement,” which includes the following words:
I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation.
I hereby agree that I will never divulge classified information to anyone unless: (a) I have officially verified that the recipient has been properly authorized by the United States Government to receive it; or (b) I have been given prior written notice of authorization from the United States Government Department or Agency (hereinafter Department or Agency) responsible for the classification of the information or last granting me a security clearance that such disclosure is permitted. . . .
I further understand that I am obligated to comply with laws and regulations that prohibit the unauthorized disclosure of classified information. . . .
I have been advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United States criminal laws. . . .
I understand that all conditions and obligations imposed upon me by this Agreement apply during the time I am granted access to classified information, and at all times thereafter. . . .
I reaffirm that the provisions of the espionage laws [emphasis added], other federal criminal laws and executive orders applicable to the safeguarding of classified information have been made available to me; that I have returned all classified information in my custody; that I will not communicate or transmit classified information to any unauthorized person or organization; that I will promptly report to the Federal Bureau of Investigation any attempt by an unauthorized person to solicit classified information.
No one who appends his name to this non-disclosure agreement is compelled to do so; government officials sign it of their own free will. Is there anything about it that is in any way unclear? The U.S. government rightly does not think so. For passing relatively innocuous secrets (innocuous, that is, compared to what was contained in the New York Times article of December 16) to two officials of AIPAC, Lawrence Franklin, a Defense Department official, was recently sentenced to twelve years in prison.
The leakers of classified government documents are not heroes. Often acting from partisan motives or for personal gain, and almost always under the cover of anonymity, they are law-brakers willing to imperil the nation but not their careers. Journalists who publish sensitive intelligence secrets for the entire world to read, sometimes also from partisan motives (see James Risen’s Bush-bashing book, State of War) or for personal gain and sometimes out of a conviction, now widespread in their profession, that they are journalists first and citizens subject to U.S. law second (see all the various statements of Bill Keller), fall into the same suspect class.
Although portions of the Espionage Act are riddled with ambiguous language, the provisions governing unauthorized publication of classified communications intelligence are perfectly clear, and the Times’s actions unequivocally violated them. I find it striking that not one of my correspondents challenges this; Morton Halperin explicitly affirms it. Instead, my interlocutors offer reasons why the law has not been enforced in the past and should not be enforced in this instance.
Steven Aftergood, whose reasoned and well-informed letter stands in welcome contrast to those from the sloganeering professors, makes this case most cogently. Let me attempt to answer his various points.
To begin with, I would not quarrel with Mr. Aftergood’s claim that the government has a tendency to classify far too much information, and sometimes does so for reasons having little to do with national security, resulting in the “bizarre confection” to which he refers. But the answer is hardly for the press to appoint itself as arbiter of what is legitimately secret and what is not.
We live in a democracy in which Congress sets the laws and oversees the way they are carried out. If Congress, representing the American people, comes to believe that the executive branch is creating too many secrets, it has ample power to set things right, by funding faster and better declassification and/ or by changing the declassification rules. If, by contrast, a newspaper like the New York Times believes it has an obligation to publish a government secret, it should be prepared to accept the consequences as they have been set in law by the American people and its elected officials.
One of my correspondents, Jon Sherman, calls this idea a “mockery of democracy” and another, Joe Bernt, calls it “the law of tyrants.” In fact, maintaining national-security secrets in an orderly way is integral to the workings of democracy, essential to its protection, fundamental to the rule of law, and—despite what a raft of civil libertarians and journalists is now saying—entirely consistent with what our Founding Fathers had in mind. Indeed, as Joseph Story’s classic commentary on the Constitution make clear, the idea that the First Amendment “was intended to secure every citizen an absolute right to . . . print whatever he might please, without any responsibility, public or private . . . is a supposition too wild to be indulged by any rational man.”
Mr. Aftergood’s contention—citing the reporting of Bob Woodward, Seymour Hersh, and Bill Gertz—that Section 798 of the Espionage Act has been broken repeatedly in recent decades without eliciting prosecution is, alas, indisputable. Without doubt, he is also correct that there is a great reluctance within the Justice Department to pursue cases against the media. In a statement filed in the AIPAC case, the department (as Paul McMasters observes in his letter) acknowledged this explicitly, noting that “the fact that there has never been such a prosecution speaks for itself.”
But one of my purposes in writing my article was to challenge this stance. Our attitudes and practices regarding government secrecy urgently need to adapt to the new world that was created on September 11. The good news is that government policy toward secrets has been changing. The bad new is that it has been changing in only the most haphazard and ill-thought-out ways.
A case in point is the decision to bring charges against the two AIPAC officials, itself an unprecedented application of the Espionage Act. Even if we were to assume, for the sake of argument, that the two lobbyists are guilty as charged, the classified information they are alleged to have improperly obtained and transmitted pales, as I have already noted, in comparison with the closely-guarded secrets that were conveyed to al Qaeda via the pages of the New York Times.
At the same time, the provision of the Espionage Act (Section 793) that the AIPAC men are charged with violating is notoriously vague and—when applied to non-governmental persons, as in this instance—subject to legitimate challenge on constitutional grounds. By contrast, the provision of the law (Section 798) bearing on the Times’s behavior is a model of clarity, and stands constitutionally unchallenged and unchallengeable. In 1950, when it was enacted as an amendment to the Espionage Act, Section 798 was endorsed by the American Society of Newspapers Editors (of which ranking Times editors were active members). As the investigation of the NSA leak continues, my hope is that the glaring discrepancy between the handling of these two cases will be brought to light.
Along with a number of other correspondents, Mr. Aftergood suggests that only minimal damage was done by disclosure of the NSA program. Even before the Times story appeared, so the argument goes, al-Qaeda operatives had cause to believe that their telephone and email messages were not secure, and they refrained from communicating through such channels. All the New York Times did, therefore, was to confirm a fact already widely known, without interfering with actual counterterrorism operations.
There is a certain surface plausibility to this contention. Beneath the surface, however, it ignores both logic and basic facts. Of course, my critics are no more privy than I am to the actual workings of the NSA program, and so we cannot confidently judge the actual costs of the New York Times’s disclosure. But the public statements of those who are privy to such knowledge are not reassuring. Jane Harman, the ranking Democratic member of the House Intelligence Committee, has said that the leak “damaged critical intelligence capabilities.” None of my correspondents offers the slightest reason to doubt her words.
As the recent Madrid and London subway bombings make plain, to finance, plan, and carry out even a relatively modest terrorist operation requires an extensive exchange of information. And a moment’s thought makes clear that there are not many available channels in which such an exchange can occur. Smoke signals from mountaintop to cave might suffice in a place like Afghanistan, but they would hardly work well in planning an operation to hit New York City out of Waziristan.
Couriers present a different set of problems; they are typically much too slow and run great risks when crossing international borders. The global postal system is also slow, unreliable, and vulnerable to interception. In terms of speed, clarity, reliability, and security, telephone and email simply cannot be surpassed. This explains why, even after September 11, al-Qaeda operatives are known to have continued talking on open lines. Determined to mount further coordinated actions, they have had little choice.
The New York Times, in stating that the NSA program “led investigators to only a few potential terrorists in the country whom they did not know about from other sources” (emphasis added), has unwittingly made a devastating admission about the harm it may have inflicted on our country’s security. Three of the four planes hijacked on September 11 were commandeered by only five men; one was commandeered by four. Together, these “few” terrorists caused massive destruction and took some 3,000 lives. If, in the post-September 11 era, the NSA surveillance program enabled our government to uncover even a “few” potential terrorists in the U.S., it was doing its job, doing it well, and, depending on who exactly these few potential terrorists were, doing it perhaps spectacularly well.
If, moreover, the New York Times story of December 16, 2005 did not completely compromise the NSA program, the details that the paper subsequently published, the even fuller elaboration in James Risen’s book, and the attendant hailstorm of publicity effectively finished the job. Al-Qaeda operatives were put on notice not merely that they risked having their international communications intercepted but that interception was a near certainty. Not long after that revelation, in all likelihood, such communications ceased. Just as the disclosures undoubtedly threw a wrench into the work of terrorist planners, they threw an even larger wrench into our efforts to uncover their plots.
Compounding this damage is harm of a more general sort. In waging the war on terrorism, the U.S. depends heavily on cooperation with the intelligence agencies of allied countries. When our own intelligence services, including the NSA, the most secretive branch of all, demonstrate that that they are unable to keep shared information under wraps, international cooperation dries up. According to Porter Goss, director of the CIA in this period, “Too many of my counterparts from other countries have told me, ‘You Americans can’t keep a secret’. . . and some of these critical partners have even informed the CIA that they are reconsidering their participation in some of our most important antiterrorism ventures.”
If counterterrorism were a parlor game—and that is how, in their recent cavalier treatment of sensitive intelligence secrets, the Washington Post and the New York Times seem to regard it—Goss’s fretting could be easily dismissed. But every American was made aware on September 11 of the price of an intelligence shortfall. This is no game, but a matter of life and death.
Blair’s Foreign Policy
To the Editor:
In “Britain’s Neoconservative Moment” [March], Daniel Johnson’s comments about my book, Anti-Totalitarianism: The Left-Wing Case for a Neoconservative Foreign Policy, are so generous that I feel churlish in taking issue with the main point of his article. But I do not believe there is any serious prospect of a neoconservative movement in Great Britain comparable to the one that energized the Reagan administration or the post-9/11 foreign policies of the Bush administration. Nor do I believe it would necessarily be a good thing if there were.
My own advocacy of the neoconservative stance is, as Mr. Johnson notes, limited to its foreign-policy critique—that is, to its recognition of the weaknesses of a rules-based system of international norms against autocratic states that refuse to be bound by those norms. “Neoconservatism” is scarcely the ideal label for a liberal-democratic internationalism tempered by this view, but it is the term of abuse continually leveled at supporters of Tony Blair’s interventionist policies. We might as well accept a dero-gatory name and make a virtue of it, much as the early Methodists (or indeed the original neoconservatives) did. As Charles Krauthammer has noted in Commentary, neoconservative foreign policy “is no longer tethered to its own ideological history and paternity.”
Krauthammer had in mind specifically those foreign-policy realists who have come to see the intimate connection between national security and the overthrow of tyranny. But the point applies also to those on the Left who rue the indifference of cold-war realpolitik to the plight of small nations like East Timor and Tibet, deprecate the willingness of conservative governments in the 1990’s to acquiesce in Serbian aggression in the Balkans, and welcome America’s current stress, in President Bush’s words, on “defend[ing] the peace by fighting terrorists and tyrants” and “extend[ing] the peace by encouraging free and open societies on every continent.”
The problem in England, however, is that these principles have become a political liability for Tony Blair. This is unwarranted and worrying. The weakness in Blair’s foreign policy—a lack of a sense of priorities, comparable to his neglect of the fact that in domestic policy not all desirable goals are compatible—is less important than the central point the prime minister has gotten right. When the U.S. was attacked on 9/11, the proper response was to treat it not as a problem of law enforcement but as an act of war perpetrated by an aggressive totalitarianism with recognizable antecedents in 20th-century Europe.
If, despite the mismanagement and unpopularity of the Iraq war, the anti- totalitarian impulse is to remain central to British policy, it will need to be advanced by a political coalition as extensive and heterogeneous as the one that opposed Soviet Communism. That will not happen if (as with the American brand of neoconservatism) anti-totalitarianism in foreign policy is yoked to a critique of cultural relativism and the welfare state at home.
There are independent grounds for believing that the permissive society has been a net gain for civilized values, and that shrinking public services is neither possible nor desirable. But there is also an important pragmatic consideration for staying clear of American-style domestic neoconservatism: as the Conservative party has belatedly realized, political debate in the United Kingdom will marginalize those arguments.
The fundamental distinction in foreign policy today is between the advocates of openness—with the implication that we cannot overlook aggressive threats to liberal values from our declared enemies—and realists who advance an impossibly narrow conception of the national interest in informal alliance with an isolationist Left. Neoconservatism has a role in that debate, but also a limitation.
To the Editor:
It was with a mixture of keen interest and concern that I read Daniel Johnson’s article on “Britain’s Neoconservative Moment.” The former stemmed from the fact that the organization I helped to found and now direct, the Henry Jackson Society, is at the vanguard of the nascent movement that Mr. Johnson describes. The society is, as he writes, “an umbrella organization for British Atlanticists and hawkish idealists of the Left and the Right.” My concern derived from Mr. Johnson’s alarmist subtext that the state of British politics today is such that proponents of interventionism here may require American bolstering, lest “the next generation of American leaders and thinkers [have] to ask itself who lost Britain.”
One of the prime reasons for the creation of the Henry Jackson Society was the belief that, given Britain’s own rich history in the field, there is a specific British contribution to be made on behalf of the interventionist viewpoint in foreign policy. Mr. Johnson himself acknowledges this by citing the MP Michael Gove, who argues that national self-preservation and the spreading of liberalism were guiding motives for the interventionist foreign policies of figures as diverse as Canning, Palmerston, and Churchill. As the Henry Jackson Society’s rise to public prominence and its garnering of support from across the political spectrum demonstrate, neoconservatism and muscular liberalism are integral parts of British tradition, history, and foreign-policy practice, rather than alien creeds transported wholesale from across the Atlantic.
If further proof were required of the historical influence of the interventionist imperative within Britain, next year will mark the 200th anniversary of William Wilberforce’s successful campaign to abolish the slave trade within the British Empire. Britain’s willingness to interfere with the slave trade, irrespective of territorial boundaries, was of course an early example of an ethical foreign policy, one driven, interestingly enough, by public pressure. The Henry Jackson Society’s forthcoming foreign-policy manifesto, The British Moment: The Case for Democratic Geopolitics in the 21st Century, aims to tap into this same popular feeling.
That this feeling still exists today is self-evident, and makes Mr. Johnson’s arguments seem defeatist in nature. How else has Tony Blair been able to avoid losing the confidence of the country—as opposed to that of the left-wingers in his own party—during his various overseas adventures? Why is it that his presumptive heir, Chancellor of the Exchequer Gordon Brown, can echo Mr. Blair’s foreign-policy approach—thereby inciting those very same left-wingers—and still expect to succeed to his party’s leadership? And how else could David Cameron, the new leader of the Conservative party, surround himself with a coterie of neoconservative supporters without risking a backlash from those responsible for the unprincipled foreign policy of Britain’s last Conservative government?
As Mr. Johnson reports, British interventionists are split as to whether neoconservatism’s domestic agenda has a relevance to Britain. Our organization takes no rigid, corporate view on the subject, believing that it is our role to unite rather than divide opinion. But it is notable that the attitude of bipartisan agreement on the interventionist agenda that we have sought to foster—and that “Scoop” Jackson deemed “too important to be left to petty partisan consideration”—remains solid, particularly with regard to Iran.
The next generation of American leaders and thinkers can therefore rest assured: while we welcome their support and partnership wholeheartedly, none need lament “Who lost Britain?” so long as the Henry Jackson Society and similar homegrown British advocates continue to fight the just fight.
Henry Jackson Society
Daniel Johnson writes:
I am grateful to Oliver Kamm and Andrew Mendoza for their measured criticisms. I agree with Mr. Kamm that the likelihood is small that a powerful British neoconservative movement is about to emerge. But thereafter we part company. He thinks that such a movement would not necessarily be a good thing, because its domestic critique of cultural relativism and the welfare state might hinder the emergence of a broad, heterogeneous coalition like that of anti-Communism. I believe, to the contrary, that in order to re-create such a broad coalition we need to reaffirm the values of our Judeo-Christian civilization. It was this civilization that resisted and defeated the Nazis and that survived and eventually overcame Soviet Communism. Without it, I do not see how Europe can hope to resist that new form of political religion we call Islamism.
There is no reason, at least in principle, why a politician of the Left should not espouse Judeo-Christian values as vigorously as one of the Right. Nor have Conservatives historically enjoyed a monopoly on the kind of interventionist foreign policy that now goes under the banner of neoconservatism. But there is undoubtedly a tendency at present for the active promotion of democracy abroad to be associated with conservative politics. This was also true during the cold war, despite the undoubted significance of liberal anti-Communism in its early phase.
What Mr. Kamm rather quaintly calls the “permissive society” created a moral and intellectual crisis of relativism from which Western liberalism has still not recovered, and which has left it ill-equipped to resist the latest, Islamist manifestation of totalitarianism. One might almost say that a neoconservative today is a liberal who has been bombed. Mr. Kamm believes that the arguments of neoconservatives have been marginalized in Britain. I would say, rather, that they have never been properly tried. But this is an issue on which supporters of an interventionist, “neoconservative” foreign policy can agree to disagree.
Alan Mendoza chides me for the opposite failing: namely, the “defeatist” argument that interventionism in Britain rests on relatively weak foundations, and may require support from the United States. He points out that Tony Blair has been able to carry the British people, and that both his heir apparent in Labor, Gordon Brown, and his latest Tory opponent, David Cameron, share his foreign-policy outlook. Well, we shall see about that. Right now, Blair is virtually the only leading politician, not only in Britain but in all of Europe, who is prepared to make the case for a vigorous prosecution of the war on terror, even if it means taking on terror-sponsoring states like Iran. Both Brown and Cameron have yet to prove themselves under fire.
While I have great respect for Mr. Mendoza’s admirable Henry Jackson Society, it is by no means a power in the land. My point about American support was illustrated recently when Condoleezza Rice paid a brief visit to Britain this spring. Her eloquent advocacy made a striking impact, but it will require a much more concerted effort by the Bush administration to counteract the hostility of the British journalistic and political establishment. I am not defeatist, but I plead guilty to the charge of alarmism. There is plenty going on in Britain that Americans should be alarmed about.
The Museum World
To the Editor:
In his article, “Art for Sale” [March], Michael J. Lewis makes important points about some of the problems plaguing today’s art museums, like the willingness to “deaccession” or sell off works to raise funds, and the rush to expand regardless of the consequences. He is also right to decry the uprooting of the Barnes Foundation collection. But I would question some of his other criticisms.
Mr. Lewis begins his polemic by condemning the Brooklyn Museum’s handling of the 1999 Sensation exhibition of the Saatchi collection (while giving a pass to Mayor Rudolph Giuliani for violating the museum’s First Amendment rights). He suggests, invoking the name of P.T. Barnum, that museums are becoming circus-like. A similar charge was leveled at the London gallery-owner William Bullock for his promotion of an 1820 exhibition of Géricault’s Raft of the Medusa. Bullock did indeed play up the painting’s most sensational aspects, but his manner of display was so superior to that of the 1819 Salon in Paris that it spurred a reassessment of the painting after the negative reception it had received there. In early-19th-century London as in late-20th-century New York, what at first shocked about an art exhibition later became secondary to the importance of its message.
Marion True, a curator at the Getty Museum who is on trial in Italy for participating in the smuggling of antiquities, is another of Mr. Lewis’s targets. “There is no question that [she] was involved,” he writes, “only about how deeply and actively.” Like so many others, Mr. Lewis ignores the fact that a museum curator can only suggest the acquisition of an object, which then has to be okayed by the director and the board. Barry Munitz, who recently resigned his position as president of the Getty under nebulous circumstances, chose to make True the scapegoat. Ironically, while True has been excoriated by the press, she was praised by Malcolm Bell III, vice president of the Archaeological Institute of America, for devising one of the strongest policies of any major American museum for ensuring the proper acquisition of antiquities.
As for Mr. Lewis’s treatment of the Guggenheim’s “flamboyant” director Thomas Krens, whatever the problems raised by Krens’s concept of museum franchising, he at least deserves credit for his vision of a new kind of museum that updates the 19th-century model. Why should museums built in 1830 like Germany’s Altes and Glypothek be the canonical models for museums in the 21st century, as Mr. Lewis would have it? Although, as he points out, the purpose of these early museums was primarily didactic, this was a very different intention from what the art in them was originally made for.
Before the advent of public museums, even religious and political art was a kind of serious entertainment. As I argue in my book Towards a New Museum, princely collectors lived with their art; the public enjoyed it in churches, civic buildings, and lively processions. Because museums removed art from these everyday settings, they have been equated from their inception with mausoleums. Presenting art in an entertaining environment is not a novelty; it is a return to an attitude that predates the invention of museums. Museums have not ceased to instruct— witness the ubiquitous wall labels and “acoustiguides”—but adding elements like contextual displays and frequent views to the exterior can make their art more meaningful for many visitors.
I wholeheartedly agree with Mr. Lewis that an overemphasis on entertainment has its downsides. One of the biggest is the effort of major museums to move a maximum number of visitors through their galleries in a minimum amount of time, producing what Rem Koolhaas aptly describes as “an experience of body parts.” But a touch of Barnum can also remove art from the mausoleum and restore it to a lived environment.
New York City
To the Editor:
Thank you for Michael J. Lewis’s article on the state of contemporary museums. I am pleased to see from his discussion of Whose Muse? Art Museums and the Public Trust (2003) that the essays in that volume (which I edited) remain relevant and of interest. We who work in museums should always remember that museums are charities held in trust. Nothing we do should ever put at risk the public’s trust in our motives or actions.
Since we published our book three years ago, a few museums have continued to flirt with for-profit initiatives, like global franchising or partnering with commercial entities to present works from their collections as exhibitions in Las Vegas casinos. Mr. Lewis is right to be concerned with such trends, but these remain minority activities. A greater threat to the public’s regard for museums is the continued picture in the media of museums as voracious acquisitors of ill-gotten goods—of works illegally removed from archaeological sites or illegally exported from source countries. This is an unfair characterization, perpetuated by the media on the basis of only a very few examples.
At a time when the world is increasingly divided into smaller and smaller nation states separated by false ideologies of difference, museums’ collections provide evidence that cultures have always been in contact with each other, have always overlapped, and have much more in common than we are often led to believe. But nationalist cultural policies are limiting the potential for museums to contribute to the world’s cultural commons. Countries are increasingly retentionist, preventing “cultural property”—always a political construct, what one state claims as its property and no one else’s—from being exported and shared with the rest of the world. These policies have encouraged the emergence of a black market. But contrary to popular notions, museums are actually acquiring fewer and fewer objects that may be designated another country’s “cultural property.” Who, then, is buying these works? We can only assume private collectors—clearly at the expense of the viewing public.
We have to find a way to broaden access to the world’s shared artistic legacy. Museums do not own their collections; they preserve and keep them for the sake of the public. It is not a matter of property but of custodianship. Today, more than 140 of the 191 member states in the United Nations have retentionist laws restricting trade in their “cultural property.” This is the greatest challenge museums face today.
Art Institute of Chicago
Michael J. Lewis writes:
If I can paraphrase the comments of James Cuno and Victoria Newhouse, it is that I have exaggerated the state of affairs with my anecdotal evidence—which dealt with the smuggling of antiquities, the feckless sale of objects in collections, the unfortunate application of business models to the operation of cultural institutions, and so on.
For Mr. Cuno, such practices—deplorable as they may be—remain “minority activities” and do not amount to a collective crisis. His confidence is somewhat surprising, since the symposium that led to the publication of his Whose Muse? Art Museums and the Public Trust was explicitly convened to address just such a crisis. In view of what has transpired in the museum world during the three years since that book appeared, I am not sure why he is more buoyant today than then.
Victoria Newhouse argues that crass commercial motives have always accompanied the public display of art, and their effects are as likely to be positive as negative. She cites Géricault to show that a shocking exhibition might lead in time to a richer understanding of art, and suggests that this might be the case with the Brooklyn Museum’s notorious Sensation exhibition.
That show is remembered now, if at all, for its elephant-dung-bespattered Madonna, but its most discreditable aspect was its exploitation of the prestige of a public museum to inflate the commercial value of a private collection. Instead of addressing the recent historical developments that could make such a thing possible, Victoria Newhouse chides me for “giving a pass to Mayor Rudolph Giuliani for violating the museum’s First Amendment rights.” But it is a leap of logic indeed to equate the withdrawal of a public subsidy with censorship; surely she sees that one man’s right of free speech does not extend to the right to make another man pay for his soapbox. Clearly we have a disagreement over the meaning we assign to the same evidence.
I continue to believe that all is not well in American art museums. But the situation is better for the efforts of James Cuno and Victoria Newhouse, who have long been thoughtful defenders of what is best in the museum world.
To the Editor:
At the heart of Andrew C. McCarthy’s “International Law v. United States” [February] is a series of dichotomies: Americans, he suggests, can assert the right to self-determination through representative government or follow transnational elites who impose legal duties from abroad. We can take pride in a noble particularism, or we can join the self-deluded who fancy themselves citizens of the “so-called international community.” We can stand by our constitutional traditions, venerable and pure, or we can suffer their adulteration by Europhiles peddling international and foreign law.
But we do not live in a world of simple dichoto-mies. Nor did those who wrote and ratified our Constitution. Though the framers rejected much of the Old World, they continued to borrow from it. They were bold experimenters, but they and early American jurists readily incorporated into the American legal system widely shared understandings about the nature of law, sovereignty, and territoriality. These understandings, sometimes articulated and sometimes not, were drawn from English common law, natural law, classical antiquity, European legal systems, and the law of nations. From the founding to the present, American law has always drawn from and contributed to the wider legal world.
The relationship between international law and our Constitution is not superficial. From the 18th-century law of nations came pervasive conceptions of sovereignty, comity, and reciprocity. In the libraries of Federalists and anti-Federalists were well-thumbed copies of Blackstone, Grotius, Huber, and Vattel. These authors and the established practices of European states influenced not only the drafting of Article I and its reference to the law of nations but other constitutional provisions: the Due Process Clause, the Full Faith and Credit Clause, Article III’s grant of jurisdiction to federal courts. The international legal obligations of a young country in need of trade and allies assumed special importance to the authors of The Federalist and to the first Congress.
This cross-fertilization did not end in 1789. The list of American judges who have looked to international and comparative law in interpreting our own statutes and constitutional provisions is a Who’s Who of great jurists, beginning with John Marshall, Joseph Story, and James Kent. Story in particular was prodigious in bringing European principles of private international law to the U.S. His Commentaries on the Conflict of Laws: Foreign and Domestic (1834) greatly influenced how American courts in the 19th century exercised jurisdiction, both in international cases and purely domestic ones. Early Supreme Court cases arising from trans- national controversies—Charming Betsy (1804), U.S. v. Smith (1820), Antelope (1825)—became important precedents on fundamental aspects of the U.S. legal system: interstate extradition, limits on legislative power, statutory construction.
The list of “importers” of international and foreign law also includes Oliver Wendell Holmes and Learned Hand. Both looked to international law as an aid in interpreting congressional intent and the geographic reach of American statutes. In American Banana (1909), Holmes concluded that U.S. antitrust laws did not apply to foreign cartels because of a global consensus as to limits on the extraterritorial application of a country’s laws. Four decades later, in a landmark departure from Holmes’s precedent, Hand applied a similar interpretive approach: “We are not to read general words, such as those in [the Sherman] Act, without regard to the limitations customarily observed by nations upon the exercise of their powers.”
Other importers of international law included Justices Benjamin Cardozo, Robert Jackson, and John Harlan II. In a New York Court of Appeals case, Cardozo, working from Marshall’s Antelope opinion, concluded that international law shed light on one state’s leeway in fulfilling the constitutional duty to apply the laws of another. Jackson’s approach to comity and his studied weighing of competing sovereign contacts in Lauritzen v. Larsen (1953), an international maritime case, greatly influenced subsequent jurisprudence on how courts should choose the applicable law in wholly domestic disputes. And in Sabbatino (1964), Justice Harlan considered the extent to which the Act of State Doctrine had deep roots in international law before going on to transform the doctrine in ways that have become important to domestic facets of federalism and separation of powers.
In short, those today who pause to consider how other legal systems confront complex issues are not doing something “downright unthinkable,” as Mr. McCarthy would have it. They are tracking some very giant footsteps.
Paul R. Dubinsky
Wayne State University Law School
Andrew C. McCarthy writes:
Paul Dubinsky’s stage-setting “dichotomies” hold that Americans can either side with me by persevering in constitutional self-government or follow transnational elites and “suffer [the] adulteration” of their traditions. But these are false dichotomies. I never claimed that Americans may not follow transnational progressives or even alter our fundamental law. I happen to think this would not be wise, but the point of my article was that there are legitimate legal processes for doing so, and that these are not being followed.
America could become France tomorrow. If it did so by way of its own choices and in compliance with the Constitution’s requirements, I would not have a thing to complain about, regardless of how daft I found such a transformation. In his paean to the glories of international progressivism, Mr. Dubinsky misleadingly suggests that its incremental grip on our lives is simply our “legal system” in operation—“system” being the benign substitute for “choice.” But Mr. Dubinsky’s gospel is being spread by stealth and judicial fiat rather than by democratic persuasion.
No one would dispute that the framers borrowed from a wide variety of international sources. But ultimately, their handiwork was democratically ratified. Nor have I suggested that when the application of international law is indicated—and the Constitution expressly contemplates its application—judges should shun it. Mr. Dubinsky points to some such judicial decisions and intimates that they legitimize the whole internationalist project. But when international law has been made pertinent by the political process, that is democracy in action, not a license for allowing judges to decide when foreign pieties should trump self-determination.
In any event, my essay was about nongovernmental organizations and other transnational progressives using their own dubious constructions of international law and human-rights law to restrict or reverse democratic choices, and about courts using foreign law to divine the meaning of our constitutional provisions. Concerning these matters, Mr. Dubinsky has virtually nothing to say.
After the Summer of Love
To the Editor:
Herbert Gold’s “Remembrance of Cultural Revolutions Past” [March] overwhelmed me with memories. He certainly brought to life the sounds, smells, styles, craziness, and vacuity of the San Francisco that my husband and I knew in the early 1970’s. I don’t know how many times I had to listen to mercilessly humorless “politicos” preach revolution or analyze minute differences among uniformly leftist positions, or hear stoned-out hippies (originally distinct from the politicos) prate about “love and peace.”
For me, Mr. Gold’s reminiscence was especially powerful because I was somewhat friendly with his wife Melissa at exactly the time he writes about, when they were breaking up. Mr. Gold blames the breakup of his marriage on the times. I must say that, to me, Melissa did not seem a countercultural type. She was a lovely, very blueblood Wasp, somewhat reserved and very devoted to her three children whom she spoke about a great deal. She appeared to be very responsible. Though only a year older than I, she seemed from a different generation, a woman already with children and an older husband, more established in life than any of our friends.
But Mr. Gold reminds us of how powerful was the lure of the counterculture. People were seduced by, or forced into, the heady freedom that came with violating conventional morality. No insult was worse than to be called “straight,” “bourgeois,” or “uptight.” I knew many couples who tried to banish jealousy or experimented with open relationships; someone was always shattered, even if everyone denied it. Divorces like the Golds’ littered the landscape. If you believed in being faithful, you were the one on the defensive. It was easy to lose your moorings.
As Mr. Gold at least indirectly admits, it was rather unseemly for older people like himself to be acting like youngsters in what was, after all, a youth movement, and he thus had his own share of complicity in Melissa’s experimentation. Those under the age of thirty and without grown-up commitments could afford to be freer. To my mind, the most glaring feature of the time was less the rise of the youth cult than the disappearance of adulthood. Mr. Gold captures that beautifully.
Mr. Gold’s wistful nostalgia for his lost love and for the undeniable exuberance of that era, coupled with his keen awareness of its silliness and its tawdry endings, made me very sad. I cannot help thinking about what subsequently happened to Melissa herself, a swan who wafted into his life, loved him, seemed ready to nest permanently, and then seemed simply to sail away with her brood when the winds changed. Although Mr. Gold does not say so in his memoir, what followed for Melissa were two more husbands, and then death in a helicopter crash when she was only forty-seven.
Roberta P. Seid
Santa Monica, California
Herbert Gold writes:
I am moved by Roberta P. Seid’s eloquent letter, evoking her own remembrance of a strange period in the life of San Francisco and America, with its reverberations, for both good and bad, that still continue. I did not mean to suggest that Melissa, my former wife, and I were victims of “the times.” What I did and what that remarkable woman did was consistent with our characters, although certainly influenced by a moment when it seemed that all barriers should go down.
Melissa’s death in a helicopter during a storm was a tragedy for our children, for her many friends, and for the former husband who still treasures her memory.
For the Record
To the Editor:
In his fair-minded and insightful (and therefore personally gratifying) review of my book The Case for Goliath: How America Acts as the World’s Government in the 21st Century [March], Gary Rosen writes that I “failed to win a big job in the Clinton administration in 1992.” For the record, in January 1993, I was offered the position of director of policy planning at the Department of State, which I declined.
Paul H. Nitze School of International Studies
Johns Hopkins University
Gary Rosen writes:
My thanks to Michael Mandelbaum for the clarification. I should have written that he “failed to take a big job in the Clinton administration.” But my basic point remains: even at that early stage, it was evident to Mr. Mandelbaum that his brand of realism was not a comfortable fit for the Clinton foreign-policy team.