Security leaks, law and politics

USDA

Attorney General Eric Holder gives his opening remarks at a public workshop sponsored by the United States Department of Agriculture and the Department of Justice exploring competition issues in Agriculture at the Department of Agriculture in Washington, DC, Wednesday, December 8, 2010.

Article Highlights

  • Holder’s decision not to select a special prosecutor should not foreclose bipartisan concern over the leaks themselves.

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  • What can citizens concerned about #nationalsecurity do as the U.S. attorney-led investigations proceed? @AmbJohnBolton

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  • US needs greater public awareness of what is at stake when sensitive sources and methods are endangered.

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Attorney General Eric Holder has appointed two U.S. attorneys to investigate leaks of sensitive national security information. In so doing, he implicitly rejected calls by some Republicans for a special prosecutor (sometimes called an "independent counsel") detached from normal Justice Department oversight. Holder's decision likely forecloses further debate on the special-prosecutor route. It should not, however, foreclose continued bipartisan concern over the leaks themselves, or pressure from Congress to investigate these serious breaches of the secrecy properly surrounding intelligence activities.

President Obama has proclaimed, with both his typical narcissism and moral superiority, that "the notion that my White House would purposely release classified national security information is offensive." Ironically, even the American Civil Liberties Union rejects Obama's line, arguing in its lawsuit against U.S. drone strikes: "Allowing the CIA to deny the existence of the drone program while it carries on a propagandistic campaign of officially sanctioned leaks would make a mockery of the classification system." Indeed.

"Reporters should ask whether the president himself declassified information, thus removing a potentially dangerous source of criminal liability for his aides." -John R. BoltonReporters should ask whether the president himself declassified information, thus removing a potentially dangerous source of criminal liability for his aides. Obviously, a president can declassify what he chooses, but Obama may have chosen his words with excruciating care because he knew he and his staff stood at the edge of a precipice.

There are two questions going forward: one legal, one political. First, what can citizens concerned about national security do as the U.S. attorney-led investigations proceed? Second, how can we highlight the damage already caused by the leaks, and prevent the administration from leaking anything else?

On the legal side, it is advisable not to focus on the absence of an independent counsel. These prosecutors, whether under the now-repealed, post-Watergate statute, or appointed within the Justice Department, have a long history of abusing their authorities. Such power without responsibility is contrary to principles of responsible government, whatever the momentary political environment.

Moreover, handled properly, the U.S. attorneys can conduct investigations just as thorough as "independent" prosecutors. Career Justice and FBI personnel prize their ability to resist crude, partisan interference. They would likely make public any partisan effort to steer their efforts to benefit the White House, thereby making the political risks involved prohibitively high.

These factors are especially important for Holder's designated U.S. attorneys, even though they are Obama appointees. Their personal and professional reputations for integrity, honesty and competence are now on the line in ways they have never before experienced. The media spotlight should make them worry about appearing to make politically distorted decisions if their own moral compasses aren't sufficient to impel them solely in legally justified investigative and prosecutorial directions.

Adding to public scrutiny of the U.S. attorneys, Congress must play a significant role. House and Senate Judiciary Committees should call Holder to testify, and get his on-the-record assurances that the investigations will be resourced adequately, and make it clear to him that administration ploys to shield the leakers will not be tolerated.

Moreover, the congressional Intelligence Committees should hold hearings promptly to discuss the damage to U.S. national security when highly sensitive information is made public. Right now, voters have only a vague appreciation what is at stake when sensitive sources and methods are endangered and when our adversaries learn about our strategies and capabilities. Using historical examples and simply explaining at greater length the risks and costs we incur because of loose lips will necessarily raise both public awareness and concern.

These important deterrents should also brush back further administration inclinations to reveal more wonders of Obama administration policy in hopes of reaping electoral awards. An informed and irate public will not only dramatically change the political calculus for the would-be leakers, it could cause real damage to Obama's personal image, one of the few political bright spots for the embattled president.

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