In December 2005, The New York Times revealed a secret National Security Agency operation that spied on Al Qaeda’s communications. Six months later the Times reported that the U.S. government gained access to an international financial clearinghouse, which allowed the feds to track the financial transfers of Al Qaeda. By the Times’s own accounts, these programs achieved significant successes; but the disclosure surely compromised that effectiveness. In most countries, the reporters who broke these stories—Eric Lichtblau and James Risen—would have been placed in shackles and interred in the deepest dungeon, along with their editor, Bill Keller. In the United States, they receive prizes.

American law prohibits the disclosure of secrets. The Bush administration chose not to prosecute, but now Gabriel Schoenfeld steps into the breach and delivers the indictment of Lichtblau, Risen, Keller, and other members of the press who, in Schoenfeld’s view, placed their personal ambitions and the scoop-telling norms of their tribe above the security of the country. Schoenfeld’s indictment is grounded in a history of secrecy and law in the United States, which he provides as a “counter-narrative” to the Whig history of civil liberties advanced by the law professor Geoffrey Stone.

In his celebrated book, Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism, Stone recounts the history of U.S. government security measures taken during times of emergency. Like other sophisticated civil libertarians, Stone acknowledges that, both legally and morally, civil liberties can be compromised for the sake of national security—in principle. But he argues that in every case he examines—the quasi-war with France at the end of the eighteenth century, the Civil War, World War I, World War II, the Cold War, the Vietnam War—“the nation went too far in restricting civil liberties.” Measures that led to the internment, execution, and harassment of harmless people did not advance security, or they did so only a little at great cost to individual freedom, when less harsh means were available. Stone does not argue that all of the measures imposed during these emergencies were illegitimate, but he concludes that courts and the rest of us should be skeptical when the government claims today that some new liberty-compromising security measure is needed.

Schoenfeld argues to the contrary. He believes that often the nation has not gone far enough in restricting civil liberties. Painting on a narrower canvas than Stone, Schoenfeld argues that the United States has not worked hard enough to protect its secrets from government leakers and the press. Where it showed restraint, it should instead have cracked down.

The argument starts at the Founding. Schoenfeld notes that the founders valued secrecy, that the deliberations at the Continental Congress and the Constitutional Convention were held in secret, and in drafting the Constitution the founders permitted the new House and Senate to hold secret proceedings and the executive to keep secrets as well. The founders’ views anticipated those of successive government administrations, scholars, and commentators. Nearly everyone agrees that the government should keep at least some secrets, that some deliberations ought to be private, that spies should be prosecuted. And although journalists often celebrate government officials who leak to the press, nearly everyone else understands that leakers can cause harm, and in serious cases should be prosecuted.