Some leaks are purely political. Some are more civic-minded. Others are criminal. Still others are some combination of all three.
What prompts this taxonomy is the growing controversy over the recent leaks of several national-security secrets. Neither the Obama administration, as U.S. Attorney General Eric Holder , nor a special prosecutor, as two Republican senators have predictably called for, is in a good position to investigate these leaks. It is an inquiry best left to Congress.
First, some background. Although Holder was vague on exactly what ground his probe would cover, three recent disclosures in the news media are at the center of the firestorm: there was the report that the U.S., along with Israel, created the Stuxnet computer virus that wreaked havoc on Iranian nuclear efforts; the revelation that the White House maintains a “kill list” of targets in the drone war and that Obama plays a hands-on role directing the enterprise; and, most significant, the disclosure that a plot by al-Qaeda in the Arabian Peninsula to bomb a U.S.-bound airliner was foiled because intelligence officials had infiltrated the terrorist group.
On the face of it, such leaks seem worthy of a special investigation. The catch is that anyone paying attention pretty much knows who was responsible: the administration itself -- which emerges from the revelations looking tough on terrorism. Obama’s outraged statement that “the notion that my White House would purposefully release classified national security information is offensive” doesn’t pass the laugh test.
For example, a New York Times article on Stuxnet includes a fly-on-the-wall account of a meeting in which Obama questions whether the program should be shut down; it cites as its source “members of the president’s national security team who were in the room.” The Times’s David Sanger notes that his scoops on the drone war were based on interviews with “three dozen” of the president’s “current and former advisers.” In a new book, Newsweek’s Daniel Klaidman quotes a senior Pentagon official as saying that former White House Chief of Staff Rahm Emanuel saw political gain in calling attention to the death by drone of the Pakistani terrorist Baitullah Mehsud.
Even the most potentially damaging leak -- that the airliner plot had been infiltrated -- may have been caused at least in part by administration efforts to shape news coverage. Informed that the Associated Press was going run with a story about the plot, White House counterterrorism adviser John Brennan held a conference call with several former colleagues from the security establishment who now consult for TV networks. The attack never came close to fruition, he said, because the U.S. “had insider information, insider control.” It wasn’t much of a leap for those on the call to conclude (and report) that the terrorist group had been infiltrated.
So, now that we know what happened, what do we do about it? First: Let’s drop the feigned outrage.
Releasing sensitive and even classified material is an age-old tradition in Washington, and often serves a public good by increasing transparency of government actions. Yes, leakers (almost always) have ulterior motives; it’s up to experienced reporters to put the information in context.
A new Justice Department inquiry or an independent counsel would do little more than tie individual names to leaks that were part of a coordinated group effort. This would be a pointless exercise. In addition, the Justice Department, as part of the administration, has an inherent conflict of interest. Independent counsel inquiries tend to go off track, waste time and money, become political footballs and rarely result in convictions on major charges (think Whitewater and Valerie Plame).
Both types of probes would likely require subpoenaing reporters and their notes, which raises legitimate First Amendment questions and invariably involves lengthy legal battles. Convictions have to clear a high bar -- proving that the disclosure violated the Espionage Act of 1917 and that the leaker knew it would harm the U.S. or aid a foreign government -- that they are difficult to obtain without further compromising ongoing intelligence actions.
Congressional hearings are the only sensible way forward. They would inevitably involve much partisan grandstanding. Better to contain it to a congressional forum than let it spill into a legal proceeding, and to save the investigations for leaks intended to damage U.S. interests. Besides, in between the posturing there’s always a chance a congressional inquiry could find itself focused on the real issue: whether any of the wink-and-a-nod leaks from the Obama administration made Americans less safe.
To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at firstname.lastname@example.org.