Terms of Engagement
This time, a secretive president has gone too far.
You have to feel a teeny-tiny bit of sympathy for the Obama administration, which buckled to congressional pressure last year by agreeing to investigate a series of leaked news stories about clandestine victories in the war on terror, and is now being bludgeoned by many of those same Republicans for trying to get to the bottom of one of those leaks by gaining access to the phone records of investigative reporters. Would it have been better if the Justice Department waterboarded everyone they suspected of leaking?
On the other hand, what Justice actually did, which was to secretly apply for subpoenas for the phone records of 20 reporters for the Associated Press over a period of almost two months, was probably not a great idea. The normal procedure is to negotiate for access to journalists’ records, which prosecutors refused to do out of fear of compromising their investigation. The White House thus managed to simultaneously outrage congressional Republicans and the press, which is not that easy to do. The administration tried to undo the damage by clumsily re-introducing a press shield law that had failed to pass in 2009; the effect was to reinforce the meta-narrative of Obama vs.The Media. But the press, in this case, is just collateral damage; the real story is "Obama in the Grip of Secrecy."
The irony is that, in this case, the leak might well have justified some kind of inquiry even absent the rightwing clamor for it. The AP story, published a year ago, revealed that the CIA had thwarted a bomb plot in Yemen that involved an upgrade of the "underwear" bomb that failed to explode Christmas Day 2009. Subsequent accounts clarified that the plot had been foiled by a sting operation carried out by a Saudi agent. The stories appear to have compromised an irreplaceable undercover operative who had to be whisked out of the region.
One intelligence official I spoke to said that the leak would make it tougher to recruit such operatives in the future (an odd echo of the press claim that turning over records to the government scares away confidential sources). A congressional aide familiar with the intelligence argued that "a leak that compromises an asset doing something as significant as helping prevent a bombing from reaching its intended target is a highly significant leak and ought to be prosecuted." Even the letter that Greg Pruitt, the chairman of the AP, wrote to Attorney General Eric Holder objects to an "overbroad" search conducted without prior warning, not to the search itself.
But the Obama administration has made so many wildly exaggerated claims on secrecy issues in the past that the credibility that automatically accrued to a president who once worked as a professor of constitutional law has long since evaporated. It was impossible to suppress a smirk when Holder insisted that the latest set of leaks had "put the American people at risk." Over the last four years, the Obama Justice Department has mounted elaborate investigations under the Espionage Act of 1917 to prosecute, among others, self-styled whistleblowers who have tried to expose the use of torture by the CIA, or a costly boondoggle at the National Security Agency. The act was written to target individuals who disseminated propaganda or revealed military secrets in order to compromise the American effort in World War I, but none of the alleged acts have seemed to seriously jeopardize national security. Obama, as has been often noted, has used the law to prosecute leaks more often than all of his predecessors combined — six times as opposed to three. That is not a record to be proud of.
The real pattern here is the president’s insistence that the war on terror has to be classified. Obama, as I wrote last week, after agreeing in 2009 to release the memos written by George W. Bush’s Office of Legal Counsel to justifiy the use of torture, has deferred to the military and the intelligence community on almost every other decision on classification. John Kiriakou, a former CIA agent, has been imprisoned for describing — leaking — torture tactics to the press, but no one in the agency has been punished for torturing people, and the CIA’s investigations of its own alleged abuses remain classified. Worse still, the defendants in the 9/11 tribunal at Guantánamo, now in its early phases, have been prohibited from describing the abusive practices to which they were subjected, since being tortured exposed them to classified CIA practices. One military lawyer I spoke to pointed out that even the charts explaining the level of classification assigned to various kinds of documents are themselves classified, exposing him to the danger of inadvertently revealing classfied information.
The mania for secrecy has become a defining feature of Obama’s war on terror. Why is this so? Almost all presidents of course, are quick to defer to the CIA; and a president who has tried to rein in some of the agency’s worst practices by prohibiting torture and closing "black sites" around the world may feel that surrendering to its obsession with secrecy is a price worth paying to preserve perpetually endangered CIA morale. Perhaps, in effect, Obama has concluded that he can hold the CIA accountable for what it does now by agreeing not to hold agents accountable for what they did before.
But why the endless leak investigations and prosecutions, the wielding of the mighty hammer of the Espionage Act? I wonder if this is the inevitable consequence of conducting a war through Special Forces and intelligence operatives. Bush made extensive, and highly excessive, use of the U.S. military to conduct the war on terror. Obama promised to use diplomats and aid officials as well as soldiers. We haven’t seen much of that, and the Republicans’ cynical exploitation of the killing of four American officials in Benghazi probably means that we will see even less of it. Instead, Obama has replaced soldiers with drones and undercover operatives, whether in Pakistan or Yemen or Somalia.
The war on terror has thus become increasingly classified because it is being waged by instruments that are, themselves, classified. The whole effort has become a giant secret whose details are to be disclosed only when doing so makes the president look good, as in the glorious operation to take out Osama bin Laden. Disclosures of anything else put the American people at risk.
The proposed press shield law, which probably would not protect reporters from the demand for material made in the AP investigation but would have strengthened the government’s obligation to negotiate for the material in advance, may constitute a slightly embarrassed recognition that the administration has gone too far. The more important question is whether a president who ought to by rights be supremely sensitive to the virtues of transparent government and an informed citizenry understands that he has lost his be
arings. The time has come for Obama to tell the CIA and the Justice Department to back off.
James Traub is a regular contributor to Foreign Policy, a nonresident fellow at New York University’s Center on International Cooperation, and author of the book What Was Liberalism? The Past, Present and Promise of A Noble Idea.