In each of the three major scandals that have recently rocked the Obama administration, the hunt is on for smoking guns. Armed with subpoena power in the House of Representatives, the GOP is going after the administration — for its secret seizures of journalists’ phone records, the IRS persecution of conservative nonprofit groups, and the Benghazi fiasco — and it smells blood.
Alas, the hunt may well prove fruitless; it may emerge that no laws were broken. But even if no laws were broken, the scandals’ common theme is a casual abuse of government power.
Take the case of the secret phone-record seizures. Reporters are bitter about the fact that this president, to whom they have been so very kind, has already prosecuted more leaks than all other presidents combined, and appears now to be turning against them. Besides the secret seizure of AP phone records in connection with the leak of a foiled al-Qaeda plot, there is the Department of Justice investigation of Fox News correspondent James Rosen for his 2009 revelation of a mole inside North Korea. In his case, the Department of Justice obtained a search warrant to gain access to his e-mails, and in order to justify the warrant it described him as, “at the very least, either . . . an aider, abettor and/or co-conspirator” under the Espionage Act. This is apparently the first time that the Espionage Act has been invoked against a reporter merely for publishing something. Republicans and Democrats alike warn that journalism itself is being criminalized.
Now, the unauthorized disclosure of classified information is a serious crime. It’s not obvious that journalists should be able hide those guilty of it behind the First Amendment, or that they should be able to abet such crimes with impunity. Although prosecuting reporters in these cases is almost certainly within the law, it is virtually never done because most Americans understand the vital role that a free press plays in a free society, particularly as a check on government power.
Meanwhile, the reason the administration has had to prosecute so many leaks is that it leaks so much. Indeed, the administration itself has leaked stories like the foiled al-Qaeda plot many times, to burnish the president’s national-security credentials, despite the fact that the information might compromise agents and vital operations. It is manifestly abusive for the administration to put national security at risk in order to make the president look good.
Within hours of the failed “Christmas bombing” attempt in 2009, the administration revealed that the terrorist had talked for less than an hour under interrogation, was sedated for a while, and then refused to talk, whereupon he was promptly read his Miranda rights. This leak was truly idiotic. It gave al-Qaeda crucial information about the scope of the interrogation, and also signaled that their man would not be subjected to coercive interrogation, which should have been the administration’s highest priority when it had captured a live al-Qaeda terrorist who had nearly killed hundreds of people.
With such leaks coming from the highest levels, the administration was soon a porous as a sieve. Now, in its new-found eagerness to prove that it can safeguard the nation’s secrets, it has moved with unprecedented aggressiveness against its old friends in the media. This is part and parcel of its worldview, in which it can do no wrong while exercising the dangerous power of government. That’s worrisome in its own right, because President Obama’s expansive approach to government power makes checks and balances, including the free press, more vital than ever.
The IRS persecution of conservative nonprofits shows the paranoid side of this worldview. In early 2010, conservative groups began forming and applying for tax-exempt status in significantly higher numbers. The IRS apparently reacted to the trend by grouping the cases together, as it has done in the past with similar trends. The law is problematically vague as to the kinds of political activity tax-exempt organizations are permitted to engage in, and the vagueness invites IRS scrutiny of communications and even such things as prayers. One additional factor made the abuse of power inevitable: The IRS’s Cleveland office, at least, appears to have been proceeding on the assumption that the new conservative groups had been formed for impermissible political purposes.
Any educated reader of The New Yorker or the New York Times could see that democracy was under assault by evil corporations and the infamous Koch brothers, operating through conservative nonprofits that were really just fronts. President Obama suggested as much himself when he chided the Supreme Court during his 2010 State of the Union address after the Citizens United decision. Running for office, Obama many times attacked the supposedly nebulous donors who support conservative political groups. Multiple members of Congress have written to the administration, warning of the danger of corporate manipulation of these groups. In August 2010 The New Yorker’s Jane Mayer did the cause a signal service with her dark tableau of a vast Koch-brothers conspiracy.
Paranoia is not fringe among the Left, as “birtherism” and the Birchers are among the Right. Virtually everyone on the Left believes this stuff. Hence, IRS officials saw themselves as only doing their patriotic duty in subjecting the conservative groups to special scrutiny. And one of them — former IRS chief Douglas Shulman — appears to have visited the Obama White House more than any cabinet member.
It may yet emerge that laws have been broken. The fact of a criminal probe of the IRS by the Department of Justice suggests that there is at least a colorable case. Some groups have been targeted by multiple agencies — suggesting coordination at high levels. My own think tank, the Texas Public Policy Foundation, found its legally protected list of donors released to the public by the IRS in spring 2012.
But regardless of whether any laws were broken, the deeper lesson here is how dangerous government becomes when leaders see themselves as infallible and their opponents as intrinsically corrupt. The IRS’s abusive targeting of conservative groups was a predictable product of that worldview, and it remains a problem even if no laws were broken.
The same may be said of the Benghazi fiasco. Conservatives have pilloried the administration over the killing of four Americans there, but what did the administration actually do wrong? Maybe we could have deployed special forces from Italy to Libya after the first round of attacks, but we didn’t know there would be a second. Susan Rice, head of the U.S. mission to the United Nations, was scheduled to make the rounds of the Sunday talk shows to highlight her work the U.N. General Assembly’s plenary debates, scheduled for that week, and instead was forced to talk about the attacks in Libya and Egypt. She hewed closely to the then-current version of the official talking points, which had gone through a dozen revisions in the interagency process, and which omitted any mention of al-Qaeda and stressed that the attacks occurred during what appeared to be spontaneous demonstrations.
Conservatives are furious at her, but she likely wasn’t authorized to say anything more, likely didn’t know anything more, and probably didn’t want to talk about it at all. A few days later the head of the National Counter-Terrorism Center, Matthew Olsen, used roughly the same talking points in testimony before a Senate hearing, though he did add that the administration was investigating any connections the attackers may have had to al-Qaeda. White House spokesman Jay Carney continues to insist that the State Department asked for only a minor change in the talking points, but a trove of e-mails released by the administration contradict him: The State Department got most of the substance in the original draft deleted. The most charitable explanation for this mess is incompetence, and worse could yet come to light.
But that shouldn’t distract attention from the outrageous abuse of power that was obvious from the start, namely the administration’s decision to blame the attacks on a short video that portrayed Mohammed in an unfavorable light. From one end to the other, administration officials condemned the “disgusting” video. The president himself went before the United Nations to berate those who would offend “the prophet of Islam,” though he was apparently unfazed by a display of the heinous Piss Christ, a photograph of a crucifix floating in urine, hanging at the Edward Tyler Nahem Gallery a few blocks from the U.N.
Henry Kissinger put his finger on the real problem here: These statements by senior officials imply that the U.S. government will now engage in preventive suppression of free speech as part of its public diplomacy. It was a bad sign that nobody in the administration was outraged when General Martin Dempsey, head of the Joint Chiefs of Staff, telephoned the Florida pastor Terry Jones, a private citizen, to ask him to withdraw his support for the video. Secretary of State Hillary Clinton pledged that the maker of the video would be prosecuted. She seemed confident that the administration could figure out what to charge him with; they did — probation violation for a conviction on bank fraud — and he remains in jail to this day.
Never mind that spats between private citizens in America and the Arab world are none of the government’s business, and never mind that the administration had utterly failed in its principal obligation, namely to ensure the safety of our diplomatic installations abroad. Never mind its persistent embrace of Islamist extremists’ grievances, blaming Americans for the barbaric hatreds of our enemies. The Obama administration doesn’t have to be careful about how it throws its weight around or ashamed of how it fails in its basic duties. The administration is special because, as Holder earnestly said, it “has put a real value on the rule of law and our values as Americans.”
In Shakespeare’s Antony and Cleopatra, Octavius Caesar at one point vents his frustration with the derelictions of the venerated Antony. In Antony’s defense, Lepidus retorts that Antony’s faults are “hereditary, rather than purchased, what he cannot change, than what he chooses.”
Caesar’s answer is apt, and useful today. “You are too indulgent.”
— Mario Loyola is director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation.