Rule of Law Has Broken Down for Secrets, Just Like Everything Else

Michael Isikoff takes a story Jack Goldsmith already treated and raises the logical conclusions. As I noted, Jack Goldsmith asked John Rizzo why it was that Woodward could publish the proceedings of a briefing from which even top Obama officials–like John Podesta–were excluded. Rizzo responded,

Simple. When a President himself is a key source and directs or at least signals to his Administration to cooperate with the author, that for all intents and purposes means the book becomes one big authorized disclosure. That’s what Obama did for Woodward, and that’s what Bush did for Woodward in his three books during that Administration, which also were packed with hitherto sensitive information. That’s what is remarkable and unique about Woodward’s standing.

Isikoff notes the same passage Goldsmith did and asks,

How can they credibly prosecute mid-level bureaucrats and junior military officers for leaking classified information to the press when so many high-level officials have dished far more sensitive secrets to Woodward?

He focuses closely on the case of Stephen Jin-Wood Kim whom the Obama Administration is prosecuting for leaking info on North Korea to Fox’s James Rosen.

Kim was indicted in August on charges he leaked classified information about North Korea’s nuclear intentions to James Rosen, a correspondent for FOX News.

Abbe Lowell, who got a couple of AIPAC officials cleared after threatening to show how they had only passed on information that people like Condi had already leaked to the press, is the lawyer asking this question.

Aside from the undercurrent, which seems to be asking why John Bolton’s buddies can’t politically leak information like Bolton used to when he was at State (and, implicitly, why AIPAC can’t leak information the President’s aides can), Isikoff is right.

But he misses the even bigger double standard (and of course doesn’t mention Dick Cheney’s orders to Scooter Libby to leak Valerie Plame’s identity to one of the designated reporters for these leaks, Judy Miller, which seems to be a notable example of this intentional leaking).

Less than a month ago, the Obama Administration told a judge they didn’t have to–couldn’t–tell a judge their basis for killing a US citizen. Instead, they invoked state secrets, claiming (among other things) they couldn’t even confirm or deny whether they had targeted Anwar al-Awlaki for assassination.

Yet this came after one after another Obama Administration official leaked the news that al-Awlaki had been targeted, and after they had obliquely confirmed that he was. The Administration can leak news of this targeting all it wants, apparently, but when a US citizen attempts to get protection under the law, then it becomes a state secret.

Now, Isikoff quotes some White House official denying that this kind of double standard exists.

Asked for comment, a White House official told NBC News: “The president is upset about the leak of any sensitive information to any pubic sources, and that includes sensitive information in the Woodward book. In fact, you’ll note that he explicitly refused to address classified matters with Mr. Woodward, even though he was asked about them.”

‘Unclassified gossip’

The official also disputed that the disclosures in the Woodward book might complicate the administration’s anti-leak crackdown. “Leaks are leaks and leaks of classified national security information are crimes. They are not less criminal because there are also leaks to Bob Woodward,” though the official contended that much of the “sensational” disclosures in Woodward’s book were “unclassified gossip about staff differences.”

As for claims of a double standard: the official stated: “There is no double standard. The administration opposes all leaks of classified information.” The official further said President Obama “certainly did not authorize” his aides to share share classified information with Woodward.

But (as Isikoff notes) DOJ is not investigating any of the intentional leaks in Woodward’s books, just as the Obama Administration went to some lengths to protect the Cheney and Bush transcripts that make it clear that they were ordering classified leaks for political gain.

You see, in addition to reserving the decision for itself of who gets prosecuted or not for fraud on courts and torture, the Administration is also arbitrarily choosing who gets prosecuted for leaks.

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Emptywheel Twitterverse
bmaz Was the police response to Boston bombing really appropriate? http://t.co/uWcY77L9Wi Answer is no; great work by @radleybalko @WPTheWatch
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bmaz @GregoryMcNeal No. And it was pretty obvious from the start.
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bmaz I see all the good news+discussion on pardons today and can't help but think what profound+great impact @DafnaLinzer + @ProPublica crew had.
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bmaz RT @JameelJaffer: Excellent piece by @rgoodlaw & @SarahKnuckey about @nytimes' reporting on drone strikes in Yemen. http://t.co/08yMJVr3fG
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bmaz @FalguniSheth @gideonstrumpet Fair point. I think my county is bigger than 8 states, all up there except Hawaii.
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bmaz @gideonstrumpet @FalguniSheth Don't know about Falguni's schedule, but @emptywheel is going to be around a bit, you should hook up.
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bmaz @gideonstrumpet @FalguniSheth Right. But that is not exactly CT....
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bmaz @gideonstrumpet @FalguniSheth Wait, you are traveling?
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bmaz @FalguniSheth @gideonstrumpet No, like me Gid is really a recluse.
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bmaz This----> RT @DLind This morning's DOJ announcement is a BFD. And we are on hand to explain why it matters. http://t.co/zahKzX0jLK
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bmaz @FalguniSheth @emptywheel You girls keep the lawyer near you. Never know when the professional pricks might be handy.
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