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.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. JamesJoyce says:

    Gleiwitz Incident was a secret. That was until the Nuremberg War Crimes Trial, exposed the dirty little secrets of a sociopath’s regime.

    http://en.wikipedia.org/wiki/Gleiwitz_incident

    “Much of what is known about the Gleiwitz incident comes from the sworn affidavit of Alfred Naujocks at the Nuremberg Trials. In his testimony, he states that he organized the incident under orders from Reinhard Heydrich and Heinrich Müller, the chief of the Gestapo.[1]”

    Give the idea to Fox News and the MSM at large!

    Great job Dick Cheney?

  2. RevBev says:

    I am so glad you are discussing this; all the sins should be noted when it comes to secrecy/double standard. Thanks.

  3. phred says:

    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.

    In other words, Obama’s disregard for the rule (and application) of law is systemic.

    I guess the Constitutional Law Scholar believes in equal protection, but only so far as there are two classes of citizens: those under the law and those above it.

    • victortruex says:

      In other words, Obama’s disregard for the rule (and application) of law is systemic.

      I guess the Constitutional Law Scholar believes in equal protection, but only so far as there are two classes of citizens: those under the law and those above it.

      You, sir, would be correct.

  4. Bluetoe2 says:

    Well Obama has to convince the “public” that he’s not just another tax and spend liberal Democrat.

    • Mary says:

      Exactly – he needs to go for tax and spend liberal who also leaks classified information because of his contempt for national security.

      ;)

      Separate and apart from what Woodward published (haven’t read him) and what he was or wasn’t authorized to publish or leaked, what kind of decision is it bring Woodward to classified meetings? A bad one. You have to hope that they are not arguing that their Obama briefings, where they exclude people like Podesta, are really just mean girl sessions where they engage in behind closed doors unclassified gossip.

      So how do they justify having him THERE, even if they are going to try to recategorize informationand say he didn’t provide any classified information in his book. What was the “need to know” basis of including him in the briefing? And how is Obama uninvolved in, and removed from, the decision to let Woodward sit in on classified briefings?

  5. Gitcheegumee says:

    I always wondered why Woodward, instead of Bernstein , continues to get preferred status access?

  6. eCAHNomics says:

    I asked Woodward when he was here for a book salon how come he got to release so much top secret information and memos. He chose to ignore my Q.

    • eCAHNomics says:

      So they say. I did a quick google & all that came up was the work he had done on the CIA, like Veil.

      Edit: That was for BearCountry.

      I’m off again.

    • Gitcheegumee says:

      EW did a thread here recently entitled Data Octopus. Some of these issues were being discussed, and I posted this:

      Alfred E. Woodward II December 15, 1913 – February 20, 2007 was the Chief Judge of the 18th Judicial Circuit Court, DuPage County, Illinois, from 1973 to 1975 and the father of reporter and author Bob Woodward.

      IIRC, DuPage is the county right next to Chicago.

  7. bobschacht says:

    This all underscores the characterization of Obama as a pragmatist, rather than an ideologue. For example, a lot of folks here are confused about the difference between a Constitutional scholar, and a Constitutionalist: The latter has an ideological commitment to the U.S. Constitution, the former does not necessarily have that commitment, oath of office notwithstanding. In fact, I suppose one could make the same argument about oaths of office. Lack of commitment to one’s oath of office seems to be endemic in Washington, DC for the past 10 years. And no one ever gets prosecuted for violating their oath of office, do they?

    Thanks for exposing this issue, EW!

    Bob in AZ

    • bmaz says:

      I do not think Obama qualifies for either category; he certainly does NOT have any commitment to the Constitution whatsoever, and if he is a “scholar” of the document, he is one of the most ignorant ones ever. I literally am convinced beyond any doubt that Obama does not understand equal protection analysis whatsoever.

  8. JohnLopresti says:

    I am glad for Woodward*s longterm access, his interest, and his respect for the institutions about which he has opted to report. I suppose I share some polity with him, or might have during a time when he was new to the journo scene. From what I have read of his mentor Bernstein, Woodward was much more the conservative of the two. Further, I support the idea that reporters can perform useful work inside the executive, and other branches. I often wonder about the obscurity of congressional committee work in this same light, as fragments of negotiating points and strategies emerge in the press, for the public to work on some forensic fuzzy logic basis to obtain a picture of what deals are being cut.

    Then again, I think the government weather information website is starting to look like its content is under new state secrets limits as to what it can publish online to tell us what the season really is going to bring.

    I probably should add some skepticism about the matters to which bobSch and bmaz allude. I find Obama subtle and adroit, as well as intelligent. He is in the milieu in which some creepy fames are holding sway, and he needs several years to create a personal vivid image of his concept of his own presidency. Going from community organizer to trying to guide the lumbering bureaucracy has got to be an exercise in realism for him. I am not sure I like the talk about making JoeBiden secretary of state as a swap for other re-hattings, however; though I would be willing to hear what JoeB has to say about the reconfig.

    • sapphirebulletsofpurelove says:

      Several years?! Really? Just to get his feet on the ground? Maybe we should eliminate the office of the president completely.

      Oh, and there was the whole “Chicago politics-IL state senator” stop along the community organizer–>president trajectory.

      Finally, I’m not sure how you so glibly avoided the actual problems raised here. Did you even read the post?