On my way to placing President Obama’s aggressive efforts to fight leaks of national security information in historical context, along came another remarkable leak by Edward Snowden, who has revealed highly-classified National Security Agency secrets. Snowden was certainly not intimidated by the Obama Administration’s crackdown on leakers. Rather, Snowden’s headline-grabbing revelations—like the Guardian’s “NSA collecting phone records of millions of Verizon customers daily” and “Edward Snowden’s explosive NSA leaks have US in damage control mode“—are about as serious a national security leak as can be imagined. And Snowden has openly acknowledged his behavior.
In Part I of this two-part series of columns, I outlined Richard Nixon’s approach toward dealing with leaks of national-security information. This Nixonian aggression toward journalists largely disappeared from Washington with Nixon’s departure, given that later presidents were understandably not inclined to following in his footsteps. As I have written in the past, Ronald Reagan’s Justice Department did not shy from going after leakers, and the Bush/Cheney administration, with a few minor but important adjustments, picked up where Nixon left off.
President Obama’s “Plumbers” operation has surprised many of his supporters. I use that moniker because not everything Nixon’s “Plumbers” did was illegal; in fact, their primary effort was to find leakers, and, if possible, criminalize their behavior. For that reason, I think the “Plumbers” moniker is still applicable. Accordingly, I have been trying to understand why Barack Obama has become the most aggressive American president since Richard Nixon in dealing with national-security leaks, particularly because it is not clear that a heavy-handed treatment of leakers is effective.
Obama’s Leak-Fixing Legacy, So Far
No one, to my knowledge, saw the sledgehammer of criminalizing leaks coming with candidate Barack Obama, who was then critical of the Bush/Cheney administration’s treatment of leakers. Steven Aftergood, director of the Project on Government Secrecy at the American Federation of Scientists, told the Los Angeles Times the following concerning Obama: “[c]learly, he took a critical stance toward surveillance as a senator. That has been all but absent from his policies as president.” Aftergood added, “[Obama] has not really articulated or tried to justify the changes in his public positions. So there is a something of a credibility gap that has emerged as a result.”
Compared to the records of all previous presidents, the Obama record in pursuing national-security leaks is nothing short of a neo-Nixonian enthusiasm. Here is a stunning comparative graphic chart of President Obama’s aggressive record that was assembled by Bloomberg News, which I have summarized with additional URLs and names below:
The Pre-Obama Presidential Record:
- 1971: Nixon prosecuted Daniel Ellsberg (case was dismissed because of government misconduct).
- 1985: Reagan prosecuted Samuel Morrision (who was pardoned by Bill Clinton).
- 2005: George W. Bush prosecuted Lawrence Franklin.
Obama’s Presidential Record:
- 2009: Obama prosecuted Shami Leibowitz;
- 2010: Obama prosecuted Stephen J. Kim, Thomas Drake, Bradley Manning, and Jeffrey Sterling, although it should be noted that the Drake and Sterling investigations began during the administration of George W. Bush; and
- 2012: Obama prosecuted John Kiriakou.
- Currently, Obama is known to be investigating Julian Assange, Stephen Jin-Woo Kim, and now Edward Snowden, as well as those involved in other leaks.
Whatever else will be a part of the Obama presidential legacy, his handling of leaks of national-security information has placed him in a league of his own vis-à-vis his predecessors. He has prosecuted more leakers that all prior presidents combined, and he has three years remaining in his presidency. How will this unanticipated legacy be explained?
Understanding Obama’s Approach To Leaks
Barack Obama was something of a Rorschach Test candidate when he ran for president, with different people having very different images of him. Much of his campaign rhetoric on subjects like leaks was ambiguous. For example, the strongest campaign statement I found from then-Senator Obama on leaks was his statement at the time of Scooter Libby’s conviction for perjury in connection with the Valerie Plame leak investigation. Obama stated the following in March 2007: “The conviction today underscores what happens when our foreign and national security policies are subverted by politics and ideology. Leaks and innuendo in pursuit of a flawed policy lead to shameful episodes such as this. It should never happen again.”
But Americans could hardly have foreseen Obama’s hard-line tactics with leakers during the transition, when President-elect Obama issued his ethics statements that would guide his presidency: “We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government.”
In September 2009, when leading Congressional Democratic senators sent the new president a slightly updated version of a news-media shield law he had once co-sponsored in the Senate, according to the New York Times reporting, they were given a very unexpected response. Hindsight now suggests that it was a first signal.
The new shield-law proposal required that before issuing a subpoena to a newsperson, federal prosecutors must exhaust all other methods for obtaining the information, balancing the interest of investigators with “the public interest in gathering news and maintaining the free flow of information.” The Times reported that the Obama White House did not want such procedures to apply to leaks that they deemed might cause “significant” harm to national security. In addition, they wanted federal judges to apply deference to any executive-branch assertions about whether a leak might cause such significant harm. The bill’s sponsors said the White House was gutting their proposal.
Although a compromise was later reached, it was largely what the White House had wanted, and it made clear that the Obama Administration was not going to cut reporters covering national-security matters any slack. The federal reporters’ shield law—the Free Flow of Information Act—has yet to pass. And while the Obama Department of Justice (DOJ) is not prosecuting journalists for newsgathering—yet—it is clear that they are largely following the same approach as the Bush/Cheney Administration on this topic. Remarkably, the DOJ underlying regulations relating to the news media have not been updated since October 2008, and they are not exactly news reporter friendly: 9-13.400 News Media Subpoenas; Subpoenas for Telephone Toll Records of News Media; Interrogation, Arrest, or Criminal Charging of Members of the News Media.
In short, it has been clear from the first days of his presidency, that Barack Obama has a much different view of leaks as president than he did as a U.S. Senator or as a presidential candidate. He has taken a hard-line from the outset. Why? What happened, if anything, to change his mind when he became President?
Is President Obama an Accidental Plumber-in-Chief?
As Steven Aftergood noted, President Obama has remained remarkably silent on the reason for his changed views on prosecuting leaks as president, versus his prior views as a U.S. Senator. While he expressed respect for government whistleblowers as President-elect, as president he is prosecuting them and sending them to prison. His decision to prosecute leakers, it appears to me, is exactly the same as his decision to not prosecute those who engaged in torture. I wrote about his torture decision in May 2009. In a sentence: Obama, like many presidents, is now a captive of the national-security community. The professionals in the National Security Council, the Defense Department, the State Department, the Justice Department, Homeland Security, the CIA director, the FBI director, the director of national intelligence, etc., etc. did not want to prosecute their peers for torture. But they hate leakers, and the reporters who publish their secrets.
Others who have followed Obama’s handling of leakers closely, do not disagree with my conclusion, but they believe he is an accidental plumber-in-chief. Because of the proximity, the personal interests, and the experience of the reporters who reached this conclusion, it cannot be easily ignored.
New York Times reporters Charlie Savage and Scott Shane concluded (about a year ago, and after some six prosecutions of leakers), that as their headline states: “Administration Took Accidental Path to Setting Record for Leak Cases.” On June 19, 2012, Savage and Shane reported, the Obama Administration’s pursuit of leakers “was unplanned, resulting from several leftover investigations from the Bush administration, a proliferation of e-mail and computer audit trails that increasingly can pinpoint reporters’ sources, bipartisan support in Congress for a tougher approach, and a push by the director of national intelligence in 2009 that sharpened the system for tracking disclosures.”
The Times reporters found that Obama’s director of national intelligence, Dennis Blair, “set up a system for tracking and emphasizing security breach investigations, set deadlines and priorities and kept the pressure on,” which is strikingly similar to what was the legitimate mission side of Nixon’s Plumbers. But with an important difference: Unlike Nixon’s Plumbers, Savage and Shane found no top-down directive from President Obama to pursue leaks. To the contrary, they found the leak cases arising from a “scattered bureaucratic background,” rather than from the Obama White House.
While Attorney General Eric Holder could have halted any of the cases, Savage and Shane note that to have done so would have been out of the ordinary. This report also notes how both President Obama and his Attorney General have taken political credit for leak prosecutions, it would appear that they can also distance themselves from this record.
As I read the reports on all these cases, it seems that there have been more prosecutions because in the digital age in which we live. Or, as Savage and Shane explained, it is that this changing technology has made such investigations easier: “Government officials and reporters [are] increasingly leaving electronic trails, including e-mails, cellphone records, credit card receipts and computers that track[] everyone who look[s] at a particular classified document.” This is certainly confirmed by the Affidavit In Support of Application For Search Warrant recently revealed in the leak investigation of Stephen Jin-Woo Kim, and his interactions with Fox News reporter James Rosen.
So it looks like President Obama will accidentally prosecute maybe ten or more leakers during his presidency. Unless, of course, he tells his Attorney General that he would rather not further criminalize national-security leaks, and would prefer to find another way to end them, such as enforcing the contract that those who obtain access to classified information sign in order to get that access, and add meaningful sanctions to any and all breaches. Since the prospects of prison do not deter leakers, maybe economic sanctions might better protect national-security secrets.