The only thing transparent about the White House is its perverse penchant for secrecy.
- By Richard A. EpsteinRichard A. Epstein is the Laurence A. Tisch professor of law at the New York University School of Law, the Peter and Kirsten Bedford senior fellow at the Hoover Institution, and the James Parker Hall distinguished service professor emeritus of law and senior lecturer at the University of Chicago Law School.
Forget Afghanistan, Syria, and the war or terror. Barack Obama’s administration now finds itself embroiled in a three-front domestic war that threatens to undermine public confidence in the U.S. president’s ability to lead the nation. The first of these, which has yet to quiet down, is the enormous dispute over the timeline involving acknowledgment of al Qaeda’s involvement in the Sept. 11, 2012, attack on the U.S. Consulate in Benghazi, Libya. The second involves the recent revelation that the Internal Revenue Service (IRS) focused special scrutiny on applicants for tax-exempt status that sported Tea Party or other "small government" credentials. The last, and potentially most serious, is the recent revelations that Attorney General Eric Holder ordered extensive investigation into Associated Press (AP) reporters in April and May 2012.
Of these, the third is likely to cause the greatest grief for the president and strong calls for the resignation of Holder, who at latest report has already recused himself from a government investigation of massive snooping by the Department of Justice (DOJ) into key AP reporters in New York, Washington, and Hartford, Connecticut. On Benghazi, Obama has sought to defend himself on the ground that the supposed coverup never took place or that it was simply confusion due to incomplete information from a distant flash point, not political calculation in the heat of a tight election race. On the Tea Party investigation, he can distance himself from activities of high-level officials inside the IRS who fortunately, from his point of view, were not political appointees. But he has no such cover with respect to the AP investigation, where his own attorney general is on the line for going after journalists in ways that must be regarded as a deep and troublesome attack on the press, a secret Watergate-like affair that will send chills through the spines of media people everywhere.
Worse still, the source of the scandal goes to a foreign-policy area of great sensitivity. The president’s credibility is on the line with respect to the use of drones in the war on terror and the administration’s own garbled account of what counts as a "necessity" that justifies their secret deployment and the authorization of targeted killing. This has raised hackles not just among liberals and those concerned with executive privilege, but even among people like me who do not think that the nation benefits by having judges get involved in reviewing potential targets of attack. At this point, the two narratives run together. The very president who has pledged himself to the most open and transparent administration ever is now perceived on all sides of the political spectrum as a secretive soul who skulks about in the shadows, so sure of his own moral rectitude that he thinks that it is all right to ignore the procedural safeguards that the U.S. Constitution wisely puts in the path of less wise and omniscient presidents. Long ago, James Madison warned in Federalist No. 10 that the Constitution had to be rigged for bad times because it is in the nature of politics that "Enlightened statesmen will not always be at the helm." Madison’s time has come.
Right now, neither Obama nor Holder looks like an enlightened statesman. We are only in the early stages of the investigation, but already the warning sirens are blaring loudly. The attorney general now defends himself on the ground that the gravity of the leak required immediate "aggressive" action because of the security risks to the United States. The nature and sources of the potential leak are subject to much uncertainty to say the least. Current accounts about John Brennan, now CIA director, suggest that the CIA had the matter well in hand, through control of a double agent — and it is far from clear whether any security breach could be attributable to the AP story, which did not speak of Western "control" over the matter but only that "it’s not immediately clear what happened to the alleged bomber." But spurred on by this incident, the DOJ, as Holder notes, pored through reams of other information before making the decision to subpoena the AP’s telephone records from the telephone companies.
Presumably, those deliberations relieve Holder of the charge of acting recklessly and alone. But they also raise other troublesome questions. First, there is the issue as to whether the DOJ should have followed standard protocol by notifying the AP with an eye to narrowing the inquiry into the leaks coming from the administration. Second, it gives pause as to whether the exhaustive investigation taken prior to the search of the AP connections itself was undertaken in accordance with accepted practices in the identifying of targets of interest and the collection of information. Third, Holder’s statement as to the grave security risk to American lives still does not explain why he cast the net so broadly in this instance, or waited so long before making the entire affair public. Fourth, and most troublesome, it does not seem as though the decision to ransack the AP phone calls were reviewed by an independent magistrate or done pursuant to any kind of search warrant, which constitutionally seems to be very much in order. It would be hard for Holder to claim — which indeed he did not — that there were "exigent circumstances" that made it impossible to go before a magistrate for an investigation that lasted for the better part of two months, especially since it does not appear that DOJ sought a warrant before it issued its subpoenas. The requirements on FISA surveillance warrants are a lot tougher than this.
The CEO of the AP, Gary Pruitt, has much the better of the public debate when he argues that the search of some 20 separate phone lines used by over 100 journalists is, to use his charitable word, "overbroad" — particularly when the question is whether an AP reporter got information that the CIA had foiled an al Qaeda terrorist plot to blow up a U.S. plane on the way to the United States. As the AP now reports, it "delayed reporting the story at the request of government officials who said it would jeopardize national security. Once government officials said those concerns were allayed, the AP disclosed the plot because officials said it no longer endangered national security." If the CIA or the DOJ had concerns about the source of a leak, the first step would be to approach the AP directly to find ways in which to limit its inquiry so as not to trench on genuine news-gathering behavior. The applicable rules for news organizations require that subpoenas be "as narrowly drawn as possible" and "should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period."
But as caution was cast to the winds, the DOJ inquiry went from zero to 100 miles per hour, without paying any heed to the countervailing interests that lay in its path. This sets out another gnawing question: Just how high up the chain did the authorization for the investigation go? Did Obama know of the decision before
it was made, or sometime afterward? If not, what were the deliberative processes that were used to make it? And what should be done with the information collected? Pruitt wants it all to be returned and destroyed, but so long as there is a congressional investigation in the wings, that information is relevant to the question of administrative abuse — even if it not relevant to the question of what, if anything, happened in Yemen in the spring of 2012. And to make matters still worse, someone, anyone, can still ask the question of whether this investigation was a unique event, or whether the future will reveal that the Justice Department, the State Department, and the CIA engaged in an unrelated problematic investigation of some different issue, with or without presidential involvement.
But, for the moment, Obama does not have any easy out: He pays a high political price if he distances himself from Holder or calls the DOJ investigation outrageous. This is not the Tea Party. To avoid the blowback, press secretary Jay Carney has tried to turn the discussion back to economic issues. But that will not carry the day. Washington loves a scandal, even one so clearly egregious that the Democrats will be reluctant to mount a principled defense of the Obama administration. The situation is only worse because of the secrecy that surrounds all key decisions coming out of the inner group in the White House, so much so that no one quite knows why the administration took so long to release this story or to explain the role that the attorney general had in overseeing events or in approving the subpoenas.
For the president and his aides, the first item on the agenda is damage control. The administration is likely in full-blown (but secret) polling mode, seeing how high the tides of dissent and resentment will rise, and who they will envelop. My guess is that Holder is history. Right now, it looks as if Obama will survive, though probably as a lame duck, just four months into his new term in office. It is a sad fall for an administration that has always prided itself as having escaped the muck of ordinary politics. But not this time. We are past the point where presidential protestations that the administration is innocent on all charges will be treated as evidence that it is covering up its own misdeeds. Cheap talk is dangerous in all professions, even in politics. The real tragedy is that the president and his attorney general believed overmuch in their own exalted rhetoric; the nation, and the world, is all the poorer because of their excesses. "Pride goeth before destruction, and a haughty spirit before a fall." Proverbs 16.18 should now be required reading in Washington.