Magazine | July 9, 2012, Issue


Voters should hold the administration accountable for its dangerous disclosures

There is about as much reason to investigate the Obama administration’s leaks of classified information to the New York Times as there is to investigate who won the last Super Bowl. This is not a whodunit calling for meticulous gumshoe work. We can just read the newspaper’s fawning accounts of Obama at war instead.

By now we’re familiar with the legend-making tales: of the peerlessly erudite commander-in-chief thumbing through Aquinas and Augustine with one hand while flipping through his “kill list” (enemy combatants he designates for death) with the other; of a Barack Obama who had the courage to continue the cyber-war sabotage of Iran’s nuclear program, an effort begun by George W. Bush (whose administration had the good sense to keep it secret). What is noteworthy is that, when it comes to disclosing sources, the Times reporters can’t help themselves. They name names: current administration insiders such as national-security adviser Thomas Donilon, and Obama intimates such as former White House chief of staff William Daley, who has transitioned seamlessly to the Obama reelection effort. Even when the Times withholds names, we are treated to firsthand accounts of critical meetings in which the president and a handful of top intelligence officials deliberate over the most sensitive matters of national defense.

The Times’s disclosures about the “Stuxnet” computer worm deployed against Iran were drawn from reporter David Sanger’s new work of hagiography, Confront and Conceal: Obama’s Secret Wars and Surprising Use of American Power. In it, Sanger acknowledges that he followed “the practice of the Times in reporting on national security” by approaching “senior government officials” regarding “the potential risks of publication of sensitive information.” Based on that routine consultation, he “withheld a limited number of details.” Translation: The administration asked the Times not to publish some information but gave the green light on the trove that was published. Indeed, Sanger thanks the administration’s press team for “setting up interviews with all levels of the White House staff” and brags that “almost every senior member of the president’s national security team” sat for interviews, “some more than once.”

The leaked information got out because Obama wanted it out — perhaps because, in a time of crushing long-term unemployment and staggering debt, he is unable to campaign on his economic and legislative record. Having hewed to the very Bush/Cheney counterterrorism tactics he decried as a candidate in 2008, Obama can stand as Slayer of Osama and all-around anti-terrorist tough guy.

Instead, the leaks have tarnished the president. And that, at bottom, is the point. The relevance of the leak scandal is not the potential of criminal liability for officials who exposed national-defense secrets. The scandal is about political accountability. It is about a president who has spawned a culture of recklessness with classified information, politicizing its disclosure to a shocking degree.

#page#The recent, sensational Times stories are far from singular. At the dawn of the administration, the president and his attorney general, Eric Holder, authorized the release of classified memoranda outlining the CIA’s Bush-era “enhanced-interrogation program.” Obama could simply have ended the program (or, more precisely, reaffirmed its end, since the harsh tactics, rarely used in any event, had been on ice for years). But Obama needed to satisfy his anti-Bush base, to whom a “reckoning” on “torture” had been promised during the campaign. Nonpartisan intelligence professionals strenuously objected that such revelations could only strengthen America’s enemies, who train for what they are likely to encounter in the event of capture. The White House turned a deaf ear.

The administration was similarly rash when it came to the killing of bin Laden and the seizure from his compound of an intelligence trove: It publicized these occurrences before much of that information could be exploited against our enemies, by cooperating extensively in the publication of Obama’s Wars, another flattering account of the president’s prowess, this time by Washington Post reporter Bob Woodward. In sum, throughout Obama’s tenure, intelligence has been placed in the service of politics; security consequences have been secondary.

This pattern has outraged leading Senate Republicans, as well as the occasional Democrat, such as Senator Dianne Feinstein (D., Calif.). A drumbeat has thus begun for the appointment of an independent counsel to probe the latest, brazen administration leaks of defense secrets. But this would be foolish, for a number of reasons.

Several years back, Congress wisely bade good riddance to the sunsetting independent-counsel law. The institution of “independent counsel” (or “special prosecutor”) is an unconstitutional monstrosity. Put aside the horror of a lawyer with boundless resources and subpoena power whose only task is to make a case, any case, against a suspect: something that has damaged the capacity to govern of every administration from Reagan to Bush 43. More fundamentally, as Supreme Court Justice Antonin Scalia explained 24 years ago in his brilliantly prescient dissent from the high court’s upholding of the independent-counsel statute (in Morrison v. Olson), special prosecutors violate the separation-of-powers doctrine. The Constitution endows the president with all executive power. The police power any federal prosecutor exercises is thus the president’s, not his own; that power cannot be taken away from the president and vested in an independent actor. Consequently, if a prosecutor is independent, he is legally illegitimate.

Yet if the prosecutor is dependent on the president’s indulgence, he is too politically compromised to conduct an investigation with integrity. So it is that congressional Republicans have scoffed at Holder’s assignment of the leak investigation to two U.S. attorneys and a team of lawyers from the Justice Department’s national-security division. These investigators report to Holder and, ultimately, Obama. One of the U.S. attorneys selected to conduct the investigation is a longtime Obama donor who helped the 2008 campaign vet potential running mates. In theory, it is conceivable that an administration could draft into service a lawyer of such rectitude that he would proceed objectively despite conflicts of interest and while reporting directly to the attorney general. It is beyond laughable, though, to imagine such a scenario in this, the most politicized Justice Department in American history.

#page#Even if the constitutional and political objections to a special prosecutor were not insuperable, there is yet another legal hurdle: the president’s plenary authority over classified information. The intelligence community and its work product belong to the executive branch. The president has the power to approve the declassification of any intelligence he chooses to disseminate, for any reason or no reason. This is why it matters who is president. If, as patently appears to be the case, Obama authorized his underlings to discuss national-defense secrets with the press, and if the administration officials who did so reasonably understood themselves to be acting with the approval of their chain of command, there would be no prosecutable case.

The criminal law does not concern itself with how irresponsible a government official is. For a prosecutor, the only question is whether there has been a knowing, willful violation of statutes proscribing the unauthorized disclosure of classified information. So while the Times stories lionize him for bringing his keen lawyer’s mind to counterterrorism policy, Obama can bring his lawyer’s mind to press conferences, cynically taking umbrage at the mere suggestion that his administration could possibly have leaked secret intel while knowing very well that his reckless disclosures are not legally actionable.

Finally, there is a practical problem: A criminal investigation is a gold-plated invitation for relevant witnesses to decline to cooperate with Congress in examining and exposing the administration’s heedlessness. Once prosecutors start spouting about the requirements of grand-jury secrecy and potential witnesses rebuff congressional inquiries “on the advice of counsel” owing to the ongoing Justice Department probe, the issue goes dark — certainly until months after the election.

That is exactly what the administration wants, and it would be a terrible outcome. To be sure, public dread about the economy will dominate the campaign. National security, however, is the president’s principal obligation. Indeed, it is the main rationale for the federal government’s existence. The shameful exposure of defense secrets puts the lie to Obama’s posturing as a stalwart commander-in-chief. It not only endangers the lives of intelligence sources and informants who have taken grave risks in our behalf; it exposes intelligence methodology, putting enemies on notice of their vulnerabilities. Just as alarmingly, the inability to keep secrets enrages allies on the cooperation of whose intelligence services we depend. Without the information they provide, the government cannot as effectively protect American lives; and they will not provide it if they think talking to the U.S. administration is no different from talking to the New York Times.

National-security leaking should be a salient issue in the 2012 election. It will not be if Congress sloughs off its oversight responsibilities and consigns the matter to the black hole of a pointless criminal investigation. In the unlikely event that there have been provable violations of law, the five-year statute of limitations leaves plenty of time for a Romney Justice Department to indict criminals down the road. For now, the only thing that matters is political accountability.

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