Civil Liberties in Wartime 

Stewart Baker is head of the technology practice at Steptoe & Johnson, a former general counsel of the National Security Agency, and co-author of a book titled  The Limits of Trust: Cryptography, Governments, and Electronic Commerce. Eugene Volokhteaches constitutional law at UCLA School of Law and is the author of a textbook on the First Amendment and many law review articles on rights questions.This week they discuss specific security technologies that the U.S. government might adopt in the wake of recent terrorist attacks, and their effect on civil liberties.

Slate has asked Eugene Volokh and me for a dialogue on the civil liberties issues that arise from the events of last week. My heart’s not in it.

Oh, I’ve got lots of views about these issues and plenty of experience arguing about them. In the early ‘90s, when I was the National Security Agency’s general counsel, it was my job to argue for regulation of encryption, which can frustrate even sophisticated wiretaps (we lost), and my law practice includes a large component of wiretap, technology, and national security advice. It won’t be hard to trot out my views.

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


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

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

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

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

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

When I was in government and I read some press story about the foreign adversaries we were spying on, I knew our enemies would read the same story. They would go back through their communications to find the message we had intercepted. They would add encryption to the channel or get rid of the compromised equipment or execute the spy that gave us our insights. Sooner or later, we’d pay a price—a price that would never be known by the cheerily iconoclastic reporters, so proud of wresting their story from the heart of overweening authority or the climbing officials who tossed them the intelligence to curry their favor. It gave me a helpless sinking in my stomach—the same one we all felt last Tuesday.

The risk that worries me isn’t that our leaders will suddenly embrace authoritarianism. It’s that they’ll keep leaking, and the press will keep reporting, and the terrorists will keep getting smarter. That we’ll go on treating the Defense Department and the intelligence agencies the way Chicago’s Near North Side treats its cops—expecting absolute protection while offering a mix of Christmas tips and genial contempt.


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

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

Why aren’t we debating when journalists should reveal the names of officials who compromise secret military plans? Sure, they’d be burning their sources. But in the light of recent events, what conceivable calculation makes protecting the Washington Post’s sources more important than protecting the CIA’s?

I don’t think we need to change the classification laws or readjust the constitutional balance of the Pentagon Papers case. It’s simpler and more difficult than that. We all need to feel that sinking feeling when we see stories based on intelligence leaks in the paper. The journalists who write them and the editors who edit them and the readers who read them should all wonder if the passing thrill is really worth the eventual cost.

And until journalists themselves begin that debate, I’m not sure they really mean it when they say that nothing will ever be the same again. I’m afraid that what they really mean is, “Nothing will ever be the same again. For you. For us, well, it’s a hell of a story.”


OK, Eugene. Tomorrow, maybe we can talk about Carnivore and roving wiretaps and the latest Senate bill allowing emergency intercepts. For now, it looks like you’ll have to make what you can of this.