Attorney General Eric Holder has said that he doesn’t want the Obama administration’s leak prosecutions “to be his legacy.” But he has also trumpeted the cases — six and counting — in response to criticism from Senate Republicans.
This shouldn’t be a source of pride, even the fake point-scoring kind. In light of the Justice Department’s outrageously broad grab of the phone records of reporters and editors at the Associated Press, the administration’s unprecedented criminalizing of leaks has become embarrassing.
Between 1917 and 1985, there was one successful federal leak prosecution. The Obama White House, by contrast, has pursued leaks “with a surprising relentlessness,” as Jane Mayer wrote in her masterful New Yorker piece about the prosecution of Thomas Drake. Of Holder and Obama’s six unlucky targets, Drake is the guy who best fits the whistle-blower profile: He gave information to a Baltimore Sun reporter who wrote “a prize-winning series of articles for the Sun about financial waste, bureaucratic dysfunction, and dubious legal practices” in the National Security Agency. After years of hounding, the case against Drake fell apart, and he wound up pleading guilty to one misdemeanor. No jail time.
The Drake prosecution started under President George W. Bush. So did the leak prosecution of Jeffrey Sterling, the former CIA officer charged with disclosing information about Iran to James Risen of The New York Times. But Obama’s Justice Department has also launched its own prosecutions, as the AP probe underscores.
As Scott Shane and Charlie Savage pointed out last year in The New York Times, it was in 2009, the first year of Obama’s presidency, that the Justice Department and the director of national intelligence created a taskforce that “streamlined procedures to follow up on leaks.”
Nor is there a law or a Supreme Court reading of the constitution to kill them. Timothy Lee lays it out nicely on The Washington Post’s Wonkblog: You don’t have a right to protect information that you give to someone else. That’s what the Supreme Court thinks phones calls are — the act of dialing.
Journalists get the benefit of a rule the Justice Department has made for itself, supposedly to prevent interference with the First Amendment-protected work of reporters. The rule says that the attorney general has to approve the demand for records, and that Justice Department lawyers have to take all the other reasonable steps they can before drawing up a subpoena, and then write it as narrowly as possible. But the AP probe, and other examples of surveillance of reporters, show that the rules only mean so much.
In Tuesday’s letter to the AP, Deputy Attorney General James Cole said that in this case, the Justice Department “undertook a comprehensive investigation, including, among other investigative steps, conducting more than 550 interviews and reviewing tens of thousands of documents, before seeking the toll records at issue.” But that doesn’t really tell us whether this ordering up of phone records was a valid response to an egregious leak that breached national security, or another Drake affair.
The AP thinks the Justice Department wants to know how it reported a story in May 2012 about the CIA’s foiling of a plot by al-Qaida’s Yemen affiliate to plant a bomb on a plane. The AP said at the time that it actually held off publishing for a week, in response to White House and CIA requests, “because the sensitive intelligence operation was still under way.”
Whether a leak threatens national security is clearly not the standard Holder and his department are using. And the problem is that the standard is up to them.
Slate (May 15)