UNDER SURVEILLANCE
SAM TANENHAUS WROTE a biography of Whittaker Chambers some years back, so presumably he knows a thing or two about treason. But, in his article about William F. Buckley Jr. and the conservative movement, he states that “Commentary has seriously proposed that the editors of The New York Times committed treason by publishing reports on the Bush administration’s domestic surveillance program” (“Athwart History,” March 14).
As the author of the Commentary article in question, I would like to set Tanenhaus straight. First, I have never suggested that editors of the Times committed treason or anything of the sort. I did argue that the Times clearly violated a provision of the law known as Section 798 of Title 18 that flatly forbids the publication of classified information in the highly sensitive area of communications intelligence. The Times’ position seems to be that the law is unconstitutional. But, in our democratic system, Congress passes laws and the courts determine whether they are unconstitutional. Journalists, even powerful ones like the editors of the Times, are not free to pick and choose the statutes they wish to observe and then claim immunity from prosecution for violating the others.
Second, Tanenhaus refers to the NSA “domestic surveillance program.” A warrantless “domestic surveillance program” would unequivocally be an unlawful governmental action. But, of course, the secret counterterrorism program that the Times compromised with its front-page story of December 16, 2005, was intercepting international communications, in which one party was a suspected Al Qaeda operative either in the United States or abroad. The legality of the NSA program is a contested matter now before the courts; a good argument can be had about its status, but to confuse an international surveillance program with a domestic one is to be as imprecise and inflammatory as to use the word “treason” in describing a much less serious violation of the law.
Gabriel Schoenfeld
Senior Editor, Commentary
Sam Tanenhaus responds:
Gabriel Schoenfeld is right about one thing, at least. I did write a book that dealt with treason, specifically that of Alger Hiss, who, though convicted of perjury, was in fact guilty of transmitting classified intelligence to the Soviet Union—an act that belongs to the same category of crime that Schoenfeld discussed in his article “Has ‘New York Times’ Violated the Espionage Act?” (Commentary, March 2006). In that article, Schoenfeld concluded that “[w]hat the New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism.” He added: “The laws governing what the Times has done are perfectly clear; will they be enforced?” But what truly exercised Schoenfeld in 2006 was that the Times—in his eccentric formulation—had “embrac[ed] a quasi-isolationist stance.” Worse, “[i]f it has not inveighed directly against the war on terrorism, its editorial page has opposed almost every measure taken by the Bush administration in waging that war, from the Patriot Act to military tribunals for terrorist suspects to the CIA renditions of al-Qaeda operatives to the efforts to depose Saddam Hussein.” In retrospect, not a bad record of opposition. Schoenfeld now insists he “never suggested that editors of the Times committed treason or anything of the sort.” This is nonsense. The charge of espionage implies a corollary charge of treason. The mode of clarification Schoenfeld here employs is precisely the one used a half-century ago by Joseph McCarthy, when he emphasized that Truman officials like Dean Acheson and George Marshall were not, of course, Soviet agents themselves but mere “dupes” and unwitting accomplices of the Kremlin.
As for the distinction Schoenfeld presses between domestic and international surveillance, I refer him to this report in TheWashington Post (December 16, 2005): “President Bush signed a secret order in 2002 authorizing the National Security Agency to eavesdrop on U.S. citizens and foreign nationals in the United States, despite previous legal prohibitions against such domestic spying [my emphasis], sources with knowledge of the program said last night.”
TORTURE LOGIC
I am among the contributors to Why I Turned Right, which Jonathan Chait discussed in a recent TRB column (“Extreme Makeover,” April 2). Chait claims that I have been “explaining away American torture”—indeed, that, by doing so, I resembled the deconstructionist literary critics I complained of in my essay, for whom (as he quotes me saying) “ethical responsibility is a fiction and good and evil are completely interchangeable.” But I have never defended torture or explained it away. I have argued that certain nontorturous stress techniques may be appropriate for terrorist detainees trained to resist interrogation methods developed for lawful prisoners of war. Far from seeing “ethical responsibility” as a fiction, I have argued that accountability for the deplorable prisoner abuse at Abu Ghraib belongs much further up the Pentagon chain of command. More generally, Chait is at pains to separate a good and unobjectionable liberalism from a kind of phantom leftism to which, he thinks, the contributors to Why I Turned Right are overreacting. After all, he says, “the Brookings Institution does not take its principal intellectual inspiration from Michel Foucault.” Perhaps not. But identity politics is currently inseparable from the “actual liberalism” that Chait is so proud to defend. I will be happy to grant Chait’s point when I see “actual liberals” oppose racial and gender preferences and reject racially gerrymandered voting districts or defend universal standards of behavior instead of vilifying conservative social critics for “blaming the victim.” I mocked my early, unthinking acceptance of the rhetoric of victimology in Why I Turned Right. Chait suggests that he was wiser than I in his undergraduate years. I believe it. A lot of people were.
Heather Mac Donald
Senior Fellow, Manhattan Institute
Jonathan Chait responds:
Mac Donald has written, “None of the stress techniques that the military has used in the war on terror comes remotely close to torture.” But The New York Times has reported that the techniques used at Guantanamo Bay include shackling prisoners in uncomfortable positions for hours on end until they soil themselves, prolonged sleep deprivation, and other things that I and most people would consider torture. Furthermore, Mac Donald’s examples are very poor. Republicans as well as Democrats employ racial and gender preferences, unless Mac Donald thinks it’s normal for a white male of Rod Paige’s qualifications to be elevated to the president’s Cabinet. And liberals constantly denounce racially gerrymandered districts. They remain in place because black politicians and Republicans jointly support them.