On Obama's Own National-Security Leaking

NR's Kevin Williamson writes, in a qualified, partial defense of Edward Snowden:

What is worrisome to me is the double standard we all seem to have accepted here. If we are to put people in prison for violating our classified-information laws, then we have to deal with the fact that official Washington abuses those laws while at the same time being the main violator of them. For example, the Obama administration is pretty clearly leaking classified information to the media when it suits it to do so. Placing Anwar al-Awlaki on the CIA hit list did not end up on the front page of the New York Times without the White House’s blessing. We can take the Times at its word on that: “‘The danger Awlaki poses to this country is no longer confined to words,’ said an American official, who like other current and former officials interviewed for this article spoke of the classified counterterrorism measures on the condition of anonymity.” The Times reports the crime as though it were standard operating procedure, because it is.

My objection here is not to simple hypocrisy but to the creation of a standard of selective prosecution under which official Washington can use leaks of classified information as a political weapon while at the same time using the prosecution of rival leaks as a political weapon. We are in effect adopting the Nixon rule: When the president does it, it isn’t illegal.

Mario Loyola writes further on the problem.

I assume at the beginning that the president does not publicly release his order to make certain information non-classified and thus non-criminal to release to the public. I assume this because I have never heard of such an order being disclosed. I assume the order to declassify material is itself secret. Thus he can declassify information at will without having it ever noted that he did so, or questioned, or challenged.

If my assumption that these orders are either themselves secret or else no paperwork whatsoever is filed, and the president decides what he will self-declassify on a whim, then the situation can largely be fixed by requiring Executive Orders declassifying information to be public, not secret.

If the president and his Praetorian Public Relations Guard are forced to have it made part of the official record of the United States each time they declassify information about, say, SEAL Team 6, in order to reap a public relations windfall, they will be restrained in doing so.

Under the current system -- if there's even a system -- the president can never be questioned about these declassifications because if they were officially declassified, that order is itself secret, and more than likely there is no official declassification (and the president is then in breach of the law).

Under a system of full and public disclosure, the president would be brought under the law he supposedly serves, and if his selective declassification becomes obnoxious or detrimental to the security of the United States, at least the voters may have their say.

It seems rather obvious that an order which declassifies information -- which makes that information legal to discuss publicly -- should not itself be secret. If the information is no longer secret, why the hell should the order stating it's no longer secret itself be secret?

Only for one reason: To permit the president to make such declassification decisions on a whim and furthermore to be completely immunized from questions regarding such decisions. You can't ask him why he declassified material about the operations of SEAL Team 6 if he refuses to admit he's done so.

We currently have the worst of all possible worlds. We should at least have a middling-bad of all worlds. That doesn't seem like too high a goal to aim for.

posted by Ace at 02:58 PM

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