Press

by Jeremy Leaming

Like his predecessor President Obama has embraced an aggressive, mostly secret and, at times, constitutionally suspect approach to waging a never-ending war on terror.

Unlike its predecessor, the Obama administration has obsessively investigated leaks of information surrounding some of its counterterrorism efforts. The administration has launched at least six cases of alleged leaks, including one involving a foiled terrorist plot in Yemen that The Associated Press reported on last spring. As part of that investigation the Department of Justice secretly gathered and culled through phone records of AP reporters.

Going on the information we have now it appears that the First Amendment, which protects freedom of speech including press from government interference, was too easily shunted aside in an over-the-top investigation of a leak. The AP was given no chance to challenge a government search of its phone records and have a judge decide whether national security interests trumped freedom of speech in this instance. Yes, Attorney General Eric Holder claims the leak was one of the most egregious he has seen in a long, long time. But he doesn’t explain how it was so terribly egregious, nor do the facts as we know them now support his sweeping assertion.

And today, during a press conference, President Obama hardly appeared fazed by the criticism of the DOJ’s tactics, decrying leaks of counterterrorism efforts. “Leaks related to national security can put people at risk, they can put men and women in uniform that I’ve sent into the battlefield at risk,” he said.

But the May 7, 2012 reporting by the AP, had, according to its president, Gary Pruitt, been held until the White House assured the AP that “national security concerns" were no longer an issue. Pruitt added, “Indeed the White House was preparing to publicly announce that the bomb plot had been foiled.”  

Earlier this week The New York Times Editorial Board hammered the administration for its “zeal” for going after persons accused of leaking national security information. In the AP matter, The Times Editorial Board said the administration had offered no “credible justification for secretly combing through the phone records of reporters and editors at The Associated Press in what looks like a fishing expedition for sources and an effort to frighten off whistle-blowers.”

It’s rather lame to argue that just because Republicans howled loudly over the AP coverage of the foiled terrorist plot in Yemen that the DOJ’s obnoxious action of spying on the AP was somewhat mitigated. Moreover, it’s not like this administration has needed prodding to aggressively and obsessively go after alleged leakers.

By Geoffrey R. Stone, a constitutional law professor at the University of Chicago, and chair of the American Constitution Society’s Board of Directors. Professor Stone will be a panelist during an ACS Symposium this Thursday on legal policy shifts in the ten years since 9/11. Register for the symposium here.

War inevitably intensifies the tension between individual liberty and national security. But there are wise and unwise ways to strike the appropriate balance. In the years after 9/11, the Bush administration embraced a series of policies — including torture, surveillance of private communications, clandestine detention of American citizens, and secret prisons in Eastern Europe — that undermined the fundamental American values of individual dignity, personal privacy, and due process of law.

In my view, however, the most dangerous policy of the Bush administration was its attempt to hide its decisions from the American public. In an effort to evade the constraints of separation of powers, judicial review, checks and balances, and democratic accountability, the Bush administration systematically promulgated its policies in secret, denied information to Congress, abused the classification process, narrowly interpreted the Freedom of Information Act, punished government whistleblowers, jailed journalists for refusing to disclose their confidential sources, threatened to prosecute the press for revealing the administration’s secret programs, and broadly invoked executive immunity and the state secrets doctrine to prevent both Congress and the courts from evaluating the lawfulness of its programs.

By shielding its decisions from legal, congressional, and public scrutiny, the Bush administration undermined the single most central premise of a self-governing society: it is the citizens who must evaluate the judgments, policies, and programs of their representatives. As James Madison observed, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.”