"The Anti-Democratic, Anti-Transparency Ideology that Prevails at Lawfare"

I learned a lot about Lawfare---and about myself---yesterday from Conor Friedersdorf's rather bitter critique of my post on the decision to award the Pulitzer public service award to the Guardian and the Washington Post. From the headline ("Exposing the NSA: A Public Service Worthy of a Pulitzer Prize: The national-security state and its apologists don't see it that way—which is why we have the First Amendment"), I learned that the Constitution has a special provision to protect democracy against people like me. I learned that I have "a blind spot," that I apparently don't understand that "When public policy is shrouded in secrecy, sparking debate is synonymous with enabling the practice of democracy. Without debate, representative government as we know it is extinguished." Most importantly, I learned that there's an "anti-democratic, anti-transparency ideology that prevails at Lawfare," that "Wittes and others believe that the public has no proper role in judging the propriety of most NSA actions, because the information needed to render judgments is properly classified," that we are "not troubled by the ways in which the NSA and the FISA court have twisted the law so that it hardly resembles what Congress passed," and that if people like me "had their way, we'd all be more ignorant." I didn't know any of this. The hagiographer's mirror is a funny looking glass. I'm not going to fight to Friedersdorf about terms. If he wants to describe my views as anti-democratic or anti-transparency, well gee, that is actually why we have a First Amendment. I will content myself with noting that being anti-populist (to which I certainly admit), and being anti-democratic are not at all the same thing. If we do not believe in Athenian direct democracy, and if we do not believe that all information relevant to important national security decision-making should be public, then we all accept a certain democratic framework: that the public delegates certain decisions to its representatives, that its insight into how its representatives handle those decisions will be imperfect, and that our mechanism for checking the behavior of those representatives is the election of people whose values and sensibilities are similar to our own and who we believe would make choices with which we agree. That is the system we live in. It is a system generally known as representative democracy. It is a system in which I believe. And unless Friedersdorf is willing to forswear all national security secrecy, it is a framework in which he believes too. Now we are, as they say, just negotiating over the price. It is also a system that has coexisted for more than two centuries with a First Amendment that our law has never understood to give the press the unrestricted, unilateral power to reveal the most sensitive intelligence secrets of the nation. That extraordinary power is one the press claims, and for the record, it is a claim I did not address, much less contest, in my post (which did not argue against the right of the Guardian or the Post to publish as they did, merely against the Pulitzer board's ennobling of that act with journalism's highest prize). But it is not a power that finds support either in statute or in the much-celebrated case law history of the First Amendment. As Jack has repeatedly pointed out, if this is a constitutional norm, it is an emergent norm of exceedingly recent vintage. Let me also point out that Friedersdorf's insistence that perfect transparency is the sine qua non of democracy, and his loathing of Lawfare's supposed commitment to public ignorance, is---shall we say---selective. A couple of months ago, the Wall Street Journal and the Washington Post both reported that NSA's collection of metadata was actually far less than complete. Chris Donesa, the former general counsel of the House intelligence committee, wrote in Lawfare decrying the leaks: "the last thing an official should want to do is to advertise the fact that our intelligence capability is now so limited, or to explain exactly where, how, and why the collection is lacking." You might expect that Friedersdorf would have howled in protest at the anti-democratic, anti-transparency ideology on display in Donesa's post, that he would criticize Donesa for trying to keep us all ignorant. Uh, no. Here's what he wrote:

It's refreshing to read [Donesa's] complaint. As regular readers know, I believe that the public ought to be told about the reach of the phone dragnet as well as the presence of American citizens on a kill list. If Glenn Greenwald had written those stories based on an Edward Snowden leak, I'd have argued that the public interest in getting the facts outweighed any harm done. But what about all the people who are furious about the Snowden leaks? Why aren't they outraged at these leaks? . . . [B]ecause national-security-state insiders in good standing appear to be behind these leaks, rather than dissidents proclaiming their desire to inform the public, there is no talk of a leak investigation or Espionage Act violations. The leakers have no need to flee the country to avoid arrest or even to retain a lawyer. They get to leak national-security information with impunity, even though they're [sic] agenda-driven selectivity means that the secrets they've chosen to reveal aren't even leaving the public meaningfully informed about the subjects under consideration. Lots of people insist that failing to throw Edward Snowden in jail for years would undermine the rule of law, set a terrible precedent, and inspire more leaks. Yet no one is insisting that these leakers be punished or even identified. Rule-breaking by people in power is just a lot less upsetting to many American elites. Kudos to Donesa for being an exception, and to Lawfare for publishing his post.

Friedersdorf's post, in retrospect amusingly, is entitled, "Behold the Selective Outrage Over National-Security Leaks." Behold as well, we might add then, the selective kudos to Lawfare for its anti-democratic and anti-transparency ideology! For the record, Lawfare has no editorial position on leaks, save that we don't publish leaked classified documents ourselves---a position we have taken largely because doing so could gravely complicate the future security clearance prospects of our student contributors. I have views on the subject of classified leaks, views with which I am certain others of our contributors disagree. All are free to write what they think. None of our views should be taken as reflecting a Lawfare position or ideology on the subject.