The fact that intelligence leaks may embarrass the president is not a reason to refrain from investigating them.
The New York Times drafted four of its all-star journos to crank out an incensed report that dozens of military officials have been administered polygraph tests by the Defense Department — which Trump calls the “Department of War” even as it take pains to label as a “skirmish” the actual war the president launched against Iran. (Calling the department “War” ignores congressional statutes; calling the war a “skirmish” is an attempt to evade Congress’s war powers — President Trump having started the unpopular war without seeking congressional authorization.)
The president is angry over leaks revealing national-defense secrets about both the parlous state of U.S. munition stocks and the administration’s war strategy (or, if you prefer, the president’s misconceptions, erratic swerves, and ad hoc reactiveness). He has — not for the first time — pressured his top subordinates to conduct aggressive investigations to identify the leaking officials (who would presumably be prosecuted if ferreted out). Consequently, the Defense Department is using lie-detector tests to an extent the Times says is unprecedented, subjecting roughly 50 members of the military’s Joint Staff to polygraphs.
(Aside: As a former prosecutor in lots of investigations plagued by investigative and intelligence agency leaking, I am unsurprisingly not a fan of polygraphs, which are sufficiently unreliable to be generally inadmissible in court — although they cause headaches for prosecutors when a suspect who appears guilty has managed to “pass” a polygraph. Alas, outside the Justice Department, lie detector tests are not uncommon in national security agencies, including the FBI, where higher priority is understandably given to identifying leakers and doing swift damage control than to prosecuting leakers.)
I’ve been sympathetic to the media outrage from the Times and other outlets when the administration has targeted journalists themselves in these leak probes. (See, e.g., here, here, and here.) It has appeared that the Justice Department did not follow its regulations, which are supposed to make information demands on journalists rare and a last-resort measure. Plus, there is good reason to think that — as is often the case in these matters — the government has used the rubric of protecting national defense to discourage disclosures that are embarrassing to the government.
Just as the administration has sweeping discretion to decide what information is classified, the press has sweeping discretion to decide what to publish. The press can be sued or (rarely) prosecuted if what it publishes is, say, defamatory, obscene, or fraudulent (under the legal standards that govern the well-established exemptions from free-speech protection — see, e.g., Chaplinsky v. New Hampshire [1942]), but the press cannot be stopped from publishing (no prior restraints — see, e.g., New York Times v. United States [1971], the Pentagon Papers case).
That said, the Times coverage of the latest leak investigation strikes me as shrill and myopic.
Leaking national-defense information is a serious crime. It’s a serious crime our society generally agrees that the government should investigate with at least one hand tied behind its back because it is expected to probe without questioning the best witnesses — the reporters to whom government officials wrongly disseminated information. But that being the case, it’s a little much for the Times to get upset when the government aggressively goes after the leakers.
The Times is right to intimate that Trump gets angrier over the personal embarrassment caused by the leaks (his lack of careful consideration about Iranian responses and depleted munitions before making the gratuitous decision to start a war). But the Times is playing a similar game: acting as if the only plausible reason for aggressive leak investigations is the president’s pique at being cast in a poor light when, in fact, alerting America’s enemies in the middle of a war that our stockpiles are low foreseeably hurts the war effort, encouraging Iran to fight on and to keep targeting our forces.
To the extent we should see Trump as self-interestedly protecting his image under the pretext of national security, we should also see the Times as self-interestedly protecting its sources — as they commit serious crimes — under the pretext of condemning petty government retribution.
Let’s say the press was not involved here. Let’s say a government official was caught leaking this damaging information directly to agents of Iran, China, or Russia — rather than leaking it to the Times knowing that it would be published and thereby benefit Iran, China, and Russia. Does anyone doubt that an official caught doing that would be prosecuted under the Espionage Act? Ordinary Americans would see such a leak as treasonous; exposing Trump’s poor performance would not make such a leak heroic in the eyes of most Americans. And notwithstanding the media’s self-interested practice of painting their sources in glory, there is nothing heroic or honorable about acquiring access to top secret intelligence by promising never to disclose it without authorization and then disclosing without authorization to journalists.
To be clear, I am not condemning the Times or other outlets for publishing the intelligence at issue. I would personally find it a tough call if I were running a media organization. (If I were the administration, I would not find it a tough call at all to investigate and bring severe charges against any government officials caught leaking the kind of intelligence we’re talking about.) The point of a free press is to help us — the people, the sovereign — be an informed check on our government. There is no higher public interest than in understanding why and how the government is prosecuting a war. Still, we want America to win the war against a revolutionary jihadist regime that has killed thousands of Americans over the last half century, and even those who may be ambivalent on that score should oppose providing the enemy with information that will embolden it to keep fighting and attacking our troops and allies.
It is the press’s job to balance the public’s need to know about serious government miscalculations against the downside of informing our enemies about America’s military vulnerabilities (and thereby increasing the peril for the public and our armed forces). Reasonable minds can differ about whether the intelligence in question should have been published under the circumstances, while the war is ongoing. I don’t blame the press for making the call it made, but I do find it disingenuous for the press to pretend both that the call it made had no downsides and that it is outrageous for the government to try to identify the leakers.