All Leaks Are Illegal, but Some Leaks Are More Illegal Than Others

Just exposing classified information doesn't always lead to prosecution. Just ask high-ranking Obama and Bush Administration officials.
obama leaky full.jpg
Reuters

As critics of Edward Snowden, the NSA leaker, vilify him for breaking the law and his promise to never reveal classified information, the press critic Jack Shafer adds vital and astonishingly unremarked-upon context: The Obama Administration leaks highly classified information all the time. So did the Bush Administration.

Does the rule of law demand that leaks of highly classified information be prosecuted? If so, John Brennan and many other current and former national-security officials had better be given orange jumpsuits. They weren't even leaking to alert Americans to behavior that they found immoral. Often times, the U.S. national security establishment leaks to exploit a political advantage.

Shafer writes:

It doesn't really matter which modern presidential administration you decide to scrutinize for this behavior, as all of them are guilty. For instance, President George W. Bush's administration declassified or leaked whole barrels of intelligence, raw and otherwise, to convince the public and Congress making war on Iraq was a good idea. Bush himself ordered the release of classified prewar intelligence about Iraq through Vice President Dick Cheney and Chief of Staff I. Lewis "Scooter" Libby to New York Times reporter Judith Miller in July 2003. Sometimes the index finger of government has no idea of what the thumb is up to. In 2007, Vice President Cheney went directly to Bush with his complaint about what he considered to be a damaging national security leak in a column by the Washington Post's David Ignatius. "Whoever is leaking information like this to the press is doing a real disservice, Mr. President," Cheney said. Later, Bush's national security adviser paid a visit to Cheney to explain that Bush, um, had authorized him to make the leak to Ignatius.

And even as the Obama DOJ has aggressively investigated leakers who offended the powers that be, it has ignored leaks that violated the same laws when different men were responsible for them:

In 2010, NBC News reporter Michael Isikoff detailed similar secrecy machinations by the Obama administration, which leaked to Bob Woodward "a wealth of eye-popping details from a highly classified briefing" to President-elect Barack Obama two days after the November 2008 election. Among the disclosures to appear in Woodward's book "Obama's Wars" were, Isikoff wrote, "the code names of previously unknown NSA programs, the existence of a clandestine paramilitary army run by the CIA in Afghanistan, and details of a secret Chinese cyberpenetration of Obama and John McCain campaign computers."

The secrets shared with Woodward were so delicate Obama transition chief John Podesta was barred from attendance ... Isikoff asked, quite logically, how the Obama administration could pursue a double standard in which it prosecuted mid-level bureaucrats and military officers for their leaks to the press but allowed administration officials to dispense bigger secrets to Woodward. The best answer Isikoff could find came from John Rizzo, a former CIA general counsel, who surmised that prosecutor leaks to Woodward would be damn-near impossible to prosecute if the president or the CIA director authorized them.

.... In 2012, as the presidential campaigns gathered speed, after the New York Times published stories about classified programs, including the "kill list," the drone program, details about the Osama bin Laden raid, and Stuxnet, all considered successes by the administration. The reports infuriated Sen. John McCain (R-Ariz.), who essentially accused the Obama White House of leaking these top secrets for political gain. "This is not a game. This is far more important than mere politics. Laws have apparently been broken," McCain cried. To the best of my knowledge, no investigation of these alleged leaks to the press have been ordered or are active, and I have yet to hear Messrs. Brooks, Simon and Cohen describe these leakers of those details as self-indulgent, losers or narcissists.

Shafer's whole column is worth reading, and includes other examples of Obama Administration leaks, including the time Brennan "helped expose a double-agent working for Western intelligence." He concludes that "the willingness of the government to punish leakers is inversely proportional to the leakers' rank and status, which is bad news for someone so lacking in those attributes as Edward Snowden." It's also bad news for the United States of America.

Too often, our system of classification is used to enhance the power of the people in government, not to protect the vital secrets of the nation. The problem is exacerbated by a press corps that too often vilifies figures like Snowden with logic they never apply to powerful figures. The actions of those in the Washington, D.C., establishment are afforded the benefit of every doubt, while the actions of its critics are constantly maligned and assumed to spring from discreditable motives. Everyone with access to classified information swore to follow the law and keep it secret. Why are only people without power and connections criticized for violating their oath? Why are national-security officials -- whether they torture, wiretap without a warrant, lie to Congress, or leak classified information -- treated as if they and only they are above the law?

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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