The Leaky White House

I’ve been wondering in recent days if the Obama White House are really throwing some journalists and their own people under the PR bus. It certainly looks like it. After David Sanger’s report on the Stuxnet virus and the “Kill List” piece by Jo Becker and Scott Shane, everyone and their grumpy uncle assumed that Obama’s White House had sanctioned anonymous leaking to bolster the president’s reputation as a tough guy, and thus his election chances against a Republican Party that always tries to paint the Democratic Party guy as “weak on national security”.

The NYT’s reporters bolstered this view. The Kill List story cited “three dozen of [Obama's] current and former advisers” who gave interviews on the subject. Sanger in his cyberwar report wrote of “interviews over the past 18 months with current and former American, European and Israeli officials involved in the program, as well as a range of outside experts” (emphasis mine – SH). David Sanger has gone further and told CNN’s “Reliable Sources “Did I talk to a lot of people in the administration? Of course.” That so many at such a high level of clearance could have talked out of school without official approval seemed a greater stretch.

However, Obama has now ordered investigations into these leaks be kicked into a higher gear.

Attorney General Eric H. Holder Jr. on Friday assigned two United States attorneys to lead separate criminal investigations into recent disclosures to the news media of national security secrets, saying they were authorized to ”œfollow all appropriate investigative leads within the executive and legislative branches of government.”

…[Holder has] assigned two prosecutors ”” Ronald C. Machen, the United States attorney for the District of Columbia, and Rod J. Rosenstein, his counterpart in Maryland ”” to take over direction of existing investigations by the Federal Bureau of Investigation, elevating the stature of the cases but not giving them any special powers.

Earlier Friday, President Obama declared that the White House had not been behind the recent leaks and vowed to prosecute the people responsible for disclosing classified information if they could be identified.

”œSince I’ve been in office, my attitude has been zero tolerance for these kinds of leaks and speculation,” Mr. Obama said at a news conference. ”œNow we have mechanisms in place where, if we can root out folks who have leaked, they will suffer consequences. In some case, it’s criminal. These are criminal acts when they release information like this. And we will conduct thorough investigations, as we have in the past.”

For Obama to say straight out that some of these leakers are criminals is a bit of a stretch before there’s been a thorough investigation, let alone any court case – and it’s easier said than proven, as the NYT’s Charlie Savage noted.

Many people are surprised to learn that there is no law against disclosing classified information, in and of itself. The classification system was established for the executive branch by presidential order, not by statute, to control access to information and how it must be handled. While officials who break those rules may be admonished or fired, the system covers far more information than it is a crime to leak.

Instead, leak prosecutions rely on a 1917 espionage statute whose principal provision makes it a crime to disclose, to persons not authorized to receive it, national defense information with knowledge that its dissemination could harm the United States or help a foreign power.

To win such a case at trial, prosecutors have to prove to a jury that the leaked information met that standard, including showing why its disclosure was harmful. To date, there has been only one successful trial of an accused leaker ”” an intelligence analyst who gave satellite pictures of a Soviet shipbuilding facility to Jane’s Defense Weekly in 1984.

Several defendants in other leak cases pleaded guilty, avoiding a fight over whether the information they had passed on qualified. Other cases were dismissed.

Obama may or may not know himself about any officially sanctioned leaking, but either way we all remember another case where a president insisted his White House hadn’t leaked on purpose, only to have special prosecuter Fitzgerald find otherwise. That, at least, isn’t going to happen in these cases – the two attorneys appointed must rely on Holder for their subpoenas. The Obama administration as a whole may or may not have leaked deliberately as a campaign gambit with or without obama’s explicit knowledge. Giving the boss plausible deniability isn’t an entirely unknown phenomenon either. Stil, there are two things absolutely for certain here. Firstly, we’re not going to know until after November because such investigations take time, and by then it’ll be a moot point. Secondly, a whole load of people on both sides of the transaction who have gotten too comfortable with access journalism are going to have to re-evaluate their footing and wonder whether they should continue the practise.