Leaks, national security and the press

Every administration on every level of government worries about leaks.  Mayors worry about information on a big new construction project or policy initiative getting out too soon.  Presidents worry about national security.  Members of legislatures worry about a stand on an issue leaking before it can be “properly framed.”  Actually all politicians worry about that.  Look at VP Biden “leaking” his position on gay marriage.  I’ve been suspected of being a leaker because I knew reporters – and I’ve helped look for leaks.   I also believe in a free press, but as with any freedom, limits are needed.  The question is where that line should be.

Do you understand what the AP scandal is all about?  I have to admit that until I read this piece by Jack Shafer of Reuters, I really didn’t.  I don’t think the press did a good job of trying to explain their own story.  Did you know that the leak had to do with the underwear bomber?  I didn’t.  Never heard or saw that and I follow the news pretty closely.

Shafer writes

Journalists gasp and growl whenever prosecutors issue lawful subpoenas ordering them to divulge their confidential sources or to turn over potential evidence, such as notes, video outtakes or other records. It’s an attack on the First Amendment, It’s an attack on the First Amendment, It’s an attack on the First Amendment, journalists and their lawyers chant. Those chants were heard this week, as it was revealed that Department of Justice prosecutors had seized two months’ worth of records from 20 office, home and cell phone lines used by Associated Press journalists in their investigation into the Yemen underwear-bomber leaks.

First Amendment radicals — I count myself among them — resist any and all such intrusions: You can’t very well have a free press if every unpublished act of journalism can be co-opted by cops, prosecutors and defense attorneys. First Amendment attorney Floyd Abrams speaks for most journalists when he denounces the “breathtaking scope” of the AP subpoenas. But the press’s reflexive protests can prevent it from seeing the story in full, which I think is the case in the current leaks investigation.

,,,

The Obama administration has already used the Espionage Act to prosecute more government officials for leaking than all of his predecessors put together, but we shouldn’t automatically lump its pursuit of the underwear-bomb leaker in with those cases. Perhaps this investigation is chasing an extra-extraordinary leak, and the underwear-bomber leak is but one of the drops.

I have to point out here that the Republicans in Congress have pushed the administration to find leakers and, I fear, have caused the Democrats and President Obama to catch their paranoia.

Attorney General Eric Holder has overseen more leak investigations under Obama than were pursued under Bush

Attorney General Eric Holder has overseen more leak investigations under Obama than were pursued under Bush

Shafer continues

The AP story that has so infuriated the government described the breakup of an al Qaeda in the Arabian Peninsula plot to place an underwear bomber on board a U.S.-bound airliner. Published on the afternoon of May 7, 2012, the story patted itself on the back for having heeded the White House and CIA requests to not publish the previous week, when the AP first learned of the operation. The AP states in the article that it published only after being told by “officials” that the original “concerns were allayed.” In a chronology published in today’s Washington Post, we’re told that the CIA was no longer resisting publication of the AP story on the day it hit the wire (Monday) and that the White House was planning to “announce the successful counterterrorism operation that Tuesday.”

That may be the case, but the government was still incensed by the leak. In fact, it appears that officials were livid. As my Reuters colleagues Mark Hosenball and Tabassum Zakaria reported last night, the government found the leak so threatening that it opened a leak investigation before the AP ran its story.

Now, what would make the Obama administration so furious? My guess is it wasn’t the substance of the AP story that has exasperated the government but that the AP found a source or sources that spilled information about an ongoing intelligence operation and that even grander leaks might surge into the press corps’ rain barrels.

At the risk of making the Department of Justice’s argument for it, a leak once sprung can turn into a gusher as the original leakers keep talking and new ones join them, or as the government attempts to explain itself, or as others in the government begin to speak out of turn. From what I can tell, all of the above happened after the AP story appeared.

So there you have it.  It was not the particular leak, but the fact that there was a leaker that could potentially leak again.  As Shafer points out when there is a leak there is also the problem of government officials saying too much and, in effect becoming leakers.  What happened here was the existence of a double agent got out, mostly because of what government officials said in trying to explain the original AP story.   Shafer summarizes the trail and concludes

To begin with, the perpetrators of a successful double-agent operation against al Qaeda in the Arabian Peninsula would not want to brag about their coup for years. Presumably, al Qaeda in the Arabian Peninsula will now use the press reports to walk the dog back to determine whose misplaced trust allowed the agent to penetrate it. That will make the next operation more difficult. Other intelligence operations — and we can assume they are up and running — may also become compromised as the press reports give al Qaeda in the Arabian Peninsula new clues.

Likewise, the next time the CIA or foreign intelligence agency tries to recruit a double agent, the candidate will judge his handlers wretched secret keepers, regard the assignment a death mission and seek employment elsewhere.

Last, the leaks of information — including those from the lips of Brennan, Clarke and King — signal to potential allies that America can’t be trusted with secrets. “Leaks related to national security can put people at risk,” as Obama put it today in a news conference.

The ultimate audience for the leaks investigation may not be domestic but foreign. Obviously, the government wants to root out the secretspillers. But a country can’t expect foreign intelligence agencies to cooperate if it blows cover of such an operation. I’d wager that the investigations have only begun.

None of this means we should go rooting around people’s cell phone and email records without some protection.  In his reaction to the scandal, President Obama called for Congress to enact an updated media shield law which would replace the Justice Department’s internal regulations (which I think they actually didn’t follow).  Wouldn’t it be interesting for Congress to take some proactive steps instead of just investigating?

Photograph: Alex Wong/Getty Images

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