Leak Prosecutions: Enforcing Secrecy Asymmetry Does Not Equate to Rule of Law

Matt Miller has a piece in the Daily Beast defending the Obama Administration’s prosecutions of leakers. Now, as Josh Gerstein notes, Miller makes his work easier by cherry-picking which cases to discuss; he doesn’t mention Thomas Drake, who was pretty clearly trying to expose waste and fraud (as well as the government’s choice to spend more money to provide less privacy protection). And he doesn’t mention Bradley Manning, who is alleged to have leaked at least some materials that expose war crimes and a lot more than expose abuse (though note, DOD, not DOJ, is prosecuting Manning).

But Miller’s argument suffers from a much bigger problem. He operates under the assumption that the sole crux of legitimacy arises from a distinction between whistleblower and leaker that he presents as absolute.

To start with, that distinction isn’t absolute (as Manning’s case makes clear). But even with John Kiriakou, whom Miller does discuss, it’s not absolute. Recall what Kiriakou was charged with: leaking the identity of a still covert officer involved in the torture program, being one of up to 23 people who leaked that Deuce Martinez–who was not covert–was involved in the torture program (though didn’t do the torture), and lying to the CIA Publication Review Board about the classification of a surveillance technique details of which have been readily available for decades (and which seems to be related to the Secret PATRIOT GPS application targeting American citizens in probable violation of the Fourth Amendment). In other words, two people involved in an illegal program and one technique that was probably improperly classified and since become another questionably legal executive branch spying technique.

But the entire investigation arose because defense attorneys with Top Secret clearance used the covert officer’s name in a still-sealed filing about the abuse their client had suffered at the hand of the US, possibly–though we don’t know–at the hand of the covert officer (because he is covert, the defense attorneys did not use the officer’s name or picture with their client).

Now, I have no way of knowing (nor does Miller) Kiriakou’s motive, and his case will probably end in a plea, meaning we’ll never get to learn it at trial. But the very genesis of the case–the defense attorneys’ attempts to learn who had tortured their clients so as to be able to adequately represent them–arises from the government’s failure to prosecute anyone for torture and its insistence on withholding arguably relevant information from legal teams, presumably in part to prevent them from attaining any redress for that torture in courts.

So regardless of Kiriakou’s motive, to argue for the legitimacy of his prosecution as events have transpired is to distract from the larger system in which the government uses secrecy to avoid legal consequences for its own crimes–regardless of what that does for justice.

And it’s not just with Gitmo detainees’ lawyers that the government has withheld information to prevent justice being done. It did that with al-Haramain, the Maher Arar suit, Jeppesen Dataplan–the list of times when the government has claimed something, even a widely known fact, is super duper secret just so it can’t be sued or prosecuted is getting quite long and tired. And, of course, it continues to do it with the Anwar al-Awlaki killing, preferring inconsistent claims of Glomar and state secrets to full accounting not just of Awlaki’s killing, but of the claims about Presidential power more generally.

As it becomes clearer and clearer that the government, at times, wields claims of secrecy precisely to void the principle that says no man is above the law, it gets more and more cynical for the government to, at the same time, prosecute others for violating this asymmetrical system of secrecy.

All that’s made worse, of course, with the rampant selective prosecution of leaks. We know that senior Administration officials have leaked SCI information; where are those prosecutions? We know that Leon Panetta personally supported the investigation that led to Kiriakou’s charges, and yet faces no consequences for confirming on TV not just that the CIA uses inoculation programs as cover, but also that Pakistani doctor Shikal Afridi who did just that to get information on Osama bin Laden’s compound was working for the CIA. John Brennan had or has a personal stake in both the Drake and Jeff Sterling prosecutions, but he blabs more than just about anyone in Washington, and he does it with impunity.

The Obama Administration’s prosecution of leaks is not just about–in some cases–the criminalization of whistleblowing. It’s about turning secrecy that should serve a purpose into an arbitrary exercise of asymmetrical Presidential power. In this world, secrecy seems to matter when it serves to insulate the Executive Branch–and power more generally–from accountability, but it doesn’t matter when there’s political gain to be had.

Which brings me to why the Plame leak is an inapt comparison to Kiriakou’s alleged leaks. I won’t defend Kiriakou for leaking a covert officer’s identity, though I’d be a lot more upset if DOJ had prosecuted a single soul who put us in the torture business. But when Cheney ordered Libby to leak classified information–including, almost certainly, Plame’s identity–to Judy Miller, he was engaging in just this kind of arbitrary abuse of secrecy that rots the core of a democracy. And Libby didn’t get prosecuted for leaking Plame’s identity (ironically, at least in part because the current Criminal Division head Lanny Breuer managed to help Kiriakou avoid telling the grand jury information that strongly suggested Libby knew Plame was covert). He got prosecuted for lying to cover up the fact that this is what the Executive Branch does: leak highly classified information, for political gain, with impunity.

This Administration and the last have gotten more and more brazen about using asymmetrical control over secrecy to undercut the rule of law in this country, even while arguing that leaks to the public generally are worse than leaks to our sworn enemies. The government has, by its own actions, made a mockery of our system of classification. To then prosecute others under that system really corrupts our democracy.

Update: In an update to Gerstein’s post, Miller admits that the Drake case is not so clear cut.

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.

34 replies
  1. jerryy says:

    “It’s about turning secrecy that should serve a purpose into an arbitrary exercise of asymmetrical Presidential power.”

    Yup, there is a thread tying together the approaches this administration uses, AG Holder’s ‘due process as determined by the executive branch — not subject to judicial oversight’. It explains why there has been no bankster prosecutions, selective leak prosecutions and so forth. One must ask though, if the excutive branch is the one that gives us our ‘due process’, why do the US Attorneys bother showing up in court to try cases?

  2. pdaly says:

    “I won’t defend Kiriakou for leaking a covert officer’s identity, though I’d be a lot more upset if DOJ had prosecuted a single soul who put us in the torture business. “

    By this, I assume you mean had the DoJ at least been prosecuting people who initiated torture in the name of America, then Kiriakou’s leak (in that alternate universe) would be upsetting. Someone might misread your above sentence as indicating you don’t want DOJ prosecuting torturers.

  3. rugger9 says:

    It’s also the attitude one finds in the banana republic model. We’re already well along the road to there. However, the PTBs think they can message their way out of this, I disagree. We see in the primaries and in the general level of discourse that Faux News and the rest of the RW Wurlitzer has created a small but substantial par of the population fanatically clinging to their guns, completely distrustful of anything “Gummint”, and tied in with the various white supremacist bozos who are only looking for a reason to start their frequently-mentioned “next race war”. AIPAC needs to choose their buddies more carefully. And once the Fauxbots realize they’ve been had, it will not be pretty.

  4. bmaz says:

    I even have some partial sympathy for Miller’s dichotomy between whistleblowers and rank leakers of less honorable intent, but he is all over the road with how and why he tries to justify his broad p/remise. This is just about perfectly said:

    The Obama Administration’s prosecution of leaks is not just about–in some cases–the criminalization of whistleblowing. It’s about turning secrecy that should serve a purpose into an arbitrary exercise of asymmetrical Presidential power. In this world, secrecy seems to matter when it serves to insulate the Executive Branch–and power more generally–from accountability, but it doesn’t matter when there’s political gain to be had.

    I think you can have a real argument over what the resultant punishment ought to be, but as I have stated before, it is hard to argue that under the UCMJ that Manning is not a legitimate prosecution target. From the little that is known, it sure appears the Stephen Kim prosecution may be appropriate (arguably Morrison too). But you have to wonder at the prosecutorial discretion that went into the other Obama cases. Miller makes a big play on the value of prosecutorial discretion, but fails to admit the poor quality of damage/reward analysis that went into many of the decisions in these cases.

  5. MadDog says:

    The acolytes and disciples of the National Security State define anyone who breaches their secret rituals and liturgy as heretics.

    And heretics must be punished!

    It is less important what the heretic believes or says than the fact that the heretic by definition calls into question the sanctity and the very purpose of the National Security State, which is power.

    Power over what the ruled are to believe. Power over who and what the ruled are to support. Power over who and what the ruled are to be against.

    Heretics must be punished! Always! Forevermore!

  6. MadDog says:

    @MadDog: I do find it odd that while I who found much that the nuns, brothers, and priests taught and said to me to be intolerable and unbelievable, and yet still somehow I took away much meaning from their efforts. Meaning that perhaps they had not intended to make.

  7. MadDog says:

    OT – Just a reminder that CBS News 60 Minutes has the full interview this evening by Lesley Stahl of Israel’s former Mossad Chief Meir Dagan.

    As I mentioned Thursday, this is one of the things former Mossad Chief Meir Dagan said to Lesley Stahl:

    “…When Stahl suggests he seems to want to wait and have the U.S. attack Iranian nuclear sites, Dagan replies, “If I prefer that someone will do it, I always prefer that Americans will do it,” he says…”

    Update: Correction required! Doh! I keep thinking this is Sunday, but it’s not. Doh! Tomorrow is the interview. Doh!

  8. Frank33 says:

    @bmaz:

    it is hard to argue that under the UCMJ that Manning is not a legitimate prosecution target.

    Actually it is quite easy to argue that Bradley Manning is not at all a “legitimate” target. Manning is no more “legitimate” than the victims of “collateral damage” which Manning revealed. I would suggest that “collateral Damage” was also an assassination, Manning is being persecuted as an example to others, to stop any revelations about these criminal wars.

    “Classified information” that can threaten lives must be stored in a secure metal safe, with a strong lock. There must be guards, 24 hours a day also protecting that information. Manning had access to a computer network with four million users. The protection was a “password”, no armed guards, no accounting, in a network with probably foreign spies.

    Of course the Microsoft Operating systems have their own security failures. Microsoft should be prosecuted for providing a defective OS. Apparently foreign “enemies” (China?) used their deliberately designed “Backdoors” to steal valuable military secrets. How many “rootkits” are on military computers?

  9. MadDog says:

    @emptywheel: LOL!

    This is been going on all day. For some unknown reason I’ve got it stuck in my mind that today is Sunday. Doh is an understatement. *g*

  10. Frank33 says:

    @bmaz:

    Well, the same old arguments about Manning are not the subject of this post, so I will let this slide on by.

    Why did you bring the subject up? Because, you never let an oportunity pass, to slander War Resistors, such as Manning or Rainey Reitman. Then you tell us how wonderful this Kangaroo Court is, and these torturers want to give the same punishment to Manning, as was given to terrorists David Headley and Abdulmuttalab. You are a privileged insider with inside sources, but I am not impressed.

    The topic of this Post is that selective leaking of “classified information” by warmongers is OK. Leaking by patriots who reveal crimes, is a crime. As I just stated the information Manning is accused of, does not meet the definition of “classified”. The secrets need to be kept for more wars, but everyone knows the secrets except the American people.

    So you let it slide if you want or don’t let it slide. I am not letting your support of the American Gulag, slide. Bradley Manning is not as comfortable and cozy and arrogant as you are. But he has lots more courage than you ever will.

  11. P J Evans says:

    @Frank33:
    Missing the joke there, I think.
    And if I cared that much about Manning, I’d be reading a different blog. Presidents and other officials who think (or pretend to think) that laws don’t apply to them, just to everyone else – that’s part of what brings me here.

  12. bmaz says:

    @P J Evans: Yes, I was actually just trying to be humorous. Might have failed.

    I would, however, challenge that we do not care about Manning. I actually care a great deal about Manning in general, and especially about the unconscionable confinement conditions he suffered initially. My sin is simply that I do not consider him innocent under the law, nor do I believe he is, legally, a “whistleblower” within any applicable legal provision. And I am pretty confident in both of those assertions; in fact, I am darn near positive, and it takes no “inside information”, all it takes is an understanding of law. That said, I have a great deal of sympathy for the emotional state Manning was in, the pressures he faced, the apparent belief he had in the righteousness of his actions, the lax op-sec conditions at FOB Hammer, and that he is of effectively no threat in the future. I hope all those mitigating factors are taken into consideration in resolution of his case. When the time comes (and contrary to many of his acolytes constant bellowing, it has not come yet) I will argue those factors.

  13. emptywheel says:

    @bmaz: Ah, but you’re making the same mistake Miller is there.

    There is not some definitive category in moral judgment called, “whistleblower or no.” And while you usually tend to ignore the channels Manning did work and the actual morally wrong order that Manning responded to, there’s also the much larger issue of what Manning leaked. Did he do it carefully, knowing all of what he was leaking? No. Did he do something morally right? I think so.

    Again, if even PJ fucking Crowley now finds himself having to use the cables to try to argue FOR the legitimacy of the Awlaki killing, then our govt is sickly misusing secrecy. That secrecy is utterly corrupting our democracy. So while Manning’s acts might not fit your very narrow–as narrow and false as Miller’s–definition of whistleblower, that’s also not the necessary category to judge him on.

  14. bmaz says:

    First off, I do not think it is by any means a morally black or white proposition. And it is not “my definition” of whistleblower in the least, it is that of the law, whether I, or you, or whoever, likes it or not. There is a lot of yakking about “whistleblower defense”, but it simply does not exist in common law per se without statutory grant. Now if people want to insist on calling this general class of conduct “whistleblowing” as a catchall name, fine; but they should not confuse that with necessarily having any such standing under the law. Under the law, whistleblower is one hell of a lot more constrained. And, no, I do not think I have quite the same view as Miller, I am addressing it as a legal question, not a moral one – and I call false on that statement!.

    Quite frankly, it is also a false paradigm to argue that simply because PJ Fucking Crowley, you, or any number of the other however many people made good use of what Manning leaked, that it makes it legal; it most certainly does not. It may mitigate, it does not legally justify.

    I agree with you completely about the corrupting secrecy, but that does not obviate criminal law. There are very limited situations under the law where one crime (and the secrecy is mostly a craven political choice not a crime) justifies commission of another crime. Those arguments are far easier to make morally than they are legally.

  15. emptywheel says:

    @bmaz: I’m not saying it’s your definition or not. I’m saying clinging to that one definition as the arbiter or morality is nonsense. Not least bc the whistleblower system works almost never. But also because it’s part of the larger abitrary system of secrecy which the govt corrupts.

    I’ve said this before: the asymmetry of how secrecy is treated right now is the cornerstone for the corruption of law. There is no rule of law in such a system. So if you can about the rule of law, you’d be well-served to think about ways to make its corruption visible.

  16. emptywheel says:

    @bmaz: Or to put it another way. Yes, you’ve made your point. Within the narrow definition of a corrupted law, Manning doesn’t qualify for whistleblower status.

    So? That’s so besides the point it’s not a terribly interesting observation.

  17. bmaz says:

    @emptywheel: I similarly find excusing wholesale violation of law as the cure to be rather unsatisfying. You make the argument that rampant govt secrecy is ruining the rule of law. And, apparently, that because of that, anything that can possibly be viewed as fighting that, even if only partially, is “fair game”. I simply do not subscribe to that argument, although I do agree that the rampant secrecy is a problem.

    I do not completely know what the answer is, but I believe that it operates through our constitutional system of law, not outside of it, and not by destroying it in order to save it. And I think that is especially the case when there is no alternative system on the offer. You claim that the law is fundamentally corrupted on the whole. And there are tangents of view where that may well – and does – look to be the case. We deal with those every day here.

    But there is also a great big world of law where, warts and all, for both good and bad, justice is done and meted out every day. Could it be better? Do I have major gripes in some areas, for one instance exclusionary rule law? Absolutely. But, on the whole, it actually works surprisingly well. I think people wrapped up in the high value issues like discussed here all too often (I do it myself) either do not know that, or forget sometimes. We have discussed often how destructive to the core of the constitutional rule of law the executive harms on Habeas and Due Process are, and that is quite true. But I consider it similarly destructive to arbitrarily justify blatant criminal conduct simply because you feel slighted by something else. That is destructive to the rule of law as well.

  18. emptywheel says:

    @bmaz: But you’re talking past everyone engaging in this issue. Whether or not Manning gets time is unrelated to whether what he did was morally just. And also unrelated to whether, by prosecuting him as aggressively as they have rather than charging him with minor crimes and dishonorably discharging him, they have heightened their own illegitimacy in doing so.

    And again, it is one thing to say the justice system works well for normal crimes or even for crimes of terrorism (the latter is more dubious, but I think we’ll begin to see that change). And yet another to say that the justice system works well so long as Navy v. Egan makes the executive branch an arbitrary power enforcing not law, but convenience and political benefit. That’s the problem here–not the gross prosecutorial misconduct, not the abuse of CIs, not the predisposition against certain kinds of crimes. So long as this area of law is based on, as it is, an interpretation of the constitution that gives the executive branch arbitrary powers which they use in abundance, they cannot legitimately prosecute these crimes.

    Leon Panetta almost certainly did far more damage with his blabbing about the Pakistani doctor than Manning did with leaks that revealed people who cooperate, but don’t spy. And so long as Panetta goes free and Manning does not, then the system is not based on law but on whimsy.

  19. bmaz says:

    @emptywheel: Am I taking past them, or are they talking past me? I would suggest that would be very much a two way street. I am not at a loss for the moral arguments you (and others) make, in fact I am very sympathetic to them. But the legal absurdity of so much that is spewed by so many of the blindered Manning acolytes really disturbs me. And I know for a fact you do not accept all of it, but that you have intellectually reasoned positions with an understanding of both sides of the coin. I firmly believe I have the same, they just differ somewhat this time. And not by as much as I think you want to ascribe.

    This may be a shocker, but prosecutors always overcharge top counts and leverage; that is just what they do. To the military, this is not all about the leaking, it is also about discipline and control; there was never a chance in hell that they would let his conduct slide in the way you suggest. I absolutely agree that should be the result of all this; but it was never going to be the starting point.

    As to Panetta, I agree. But the solution may be to work for a world where the Panettas are prosecuted and there is less secrecy, not to excuse wholesale conduct in the opposite direction.

  20. MadDog says:

    @bmaz: @emptywheel: Foodfight! I get dibs on the lime green jello!

    Seriously, I can see both of your perspectives, and both describe a slice of reality. Even a a fairly good chunk of reality with some overlap.

    My view?

    1) What Manning allegedly did follows a moral compass that I generally agree with.

    2) What Manning allegedly did breaks the law.

    3) What Manning allegedly did does not fit into the rather rickety, circumscribed and in many instances, unworkable structure that constitutes “whistleblower” protection under the law.

    4) What Manning allegedly did does fit into the narrative in some manner of someone who whistleblew dirty linen into the public sphere that was hidden by the sacred secrecy cult that infects our government.

    When all is said and done, I think what Manning allegedly did deserves our gratitude, but I also believe he is going to pay for his alleged acts with prison time.

  21. pdaly says:

    Bmaz, the military discipline you are referring to includes following orders. If the Lamo/Manning log chats are true then one of those orders was to “shut up ” and to continue to find more Iraqi citizens to be handed over to Iraqi authorities to be tortured– even after Manning had figured out that at least 15 detainees were arrested and tortured for printing “anti-Iraqi literature” including a critique of corruption in the Iraqi government.

    Manning allegedly writes Lamo, “I was actively involved in something that i was completely against.”

    Perhaps Manning understood military discipline very well. What about the military discipline of not handing over captives to be tortured?

    In the real world system that Manning found himself, which higher authority was going to listen to him had he followed the proper channels of disclosure?

    The rule of law is a social contract. If the Executive branch is breaking that contract by operating outside the law, then others are similarly free to do so to get that information out to us. If the Executive had been operating honestly, perhaps Manning’s conduct would have been different, too.

    Manning’s motivation is understandable and noble–and perhaps “selfish” as he didn’t want to become a war criminal after-the-fact for looking the other way. His method (leaking mountains of data that he may not have pre-screened) is questionable and apparently in violation of secrecy agreements he signed. But given the vacuum of moral leadership we Americans, including Manning, find ourselves living in, I can overlook it for the greater good.

    Manning it seems wants the social contract healed. First the situation needs a bit of sunlight. Too bad about Executive secrecy plans.

  22. pdaly says:

    @MadDog:

    Manning barfed in polite society and is being reprimanded for it.

    Fewer people are commenting on the unnatural, strange fruit that is littering the floor from his vomitus. It is food not normally served for public consumption.

  23. bmaz says:

    @MadDog: I agree with that synopsis completely.

    @pdaly: I can agree with your synopsis, mostly, as well – with one caveat. While I believe the mass of State cables released have great value overall as corroborative evidence and, in a few cases, even new evidence, there are darn few of those that relate to the crimes/conduct you describe.

    And that is the paradox I see with Manning and his situation, and keep trying to express to others (I have fairly clearly not done the best job in this regard I might note).

  24. pdaly says:

    @bmaz:

    bmaz, you have done a good job explaining the difference between the cables.

    I agree that the State Dept cables have little to do with the handing over Iraqi citizens or of the Collateral Murder video, but the State Dept is part of the Executive Branch. Perhaps that was Manning’s point. Shine light on the Executive Branch illegalities. The US embassies (and the UK) were busy spying on the UN’s Kofi Anan in 2003 in violation of international treaty. And the Secretary of State was still at it under Hillary Clinton, soliciting spying on UN Leaders.

    DoD has its rules. Manning will pay for breaking them. But it would be high time for a moral leader to step in and apologize for the Executive Branch’s actions creating the environment in which Manning found himself.

  25. Frank33 says:

    It should be mentioned the Intelligence Agencies and Military Epic Failures of 9-11 gave us the 800,000 secret spy Army and the four million users of SIRPNET. The failures are always classified.

    This is the Sacred Priesthood of mostly white, rich, men, representing multinational corporations and Hedge Funds. They wave a magic wand, say some magic words and Truth becomes “Classified”. The tax payers who pay these goons do not get the value they paid for. We support a corrupt Secret Police that are unaccountable. Ask why, and it is 9-11 9-11 9-11…

    Bradley Manning may have revealed “Classified”. But again information from SIRPNET cannot be called classified, because there is no security or protection, that other than computer passwords. We could mention there might be laughable computer security provided by Microsoft.

  26. Bob Schacht says:

    Oh it is so sweet to read the dialogue (food fight?) between bmaz and EW! Thanks, I learned a lot– and by the contributions of MadDog and others, too.

    I can only lift up one other corner of the rug for investigation: The prosecution has a lot of leeway in whether or not to prosecute. We have countless examples littering the floor around us: failure to prosecute torturers, warrantless wiretappers, banksters, etc. The list goes on and on. Under Bush and Obama, Lady Justice is no longer blind, but is looking with open eyes and a thumb on the scale of justice. And while ignoring huge cases of fraud and war crimes, the DOJ pursues whistleblowers, leakers, etc, with a vengeance, even when the grounds for prosecution are much flimsier than other cases that they are ignoring.

    So yeah, under the law, Manning broke it. Go ahead, do the trial, see what the judges /jury rule, and then in the sentencing phase if any, sentence him (if guilty) to time served, and let him go. Or maybe issue a judgment as the DOJ often does, saying golly, cases like this are really hard to prosecute, so let’s just look forward and not backward, OK? And then release Manning.

    In other words, bmaz, the letter of the law is seldom enforced in every aspect, with equal force all across the board. Why double down on Manning, but leave Jaime Dimon to continue feeding off the labor of others?

    Bob in AZ

  27. Bill Michtom says:

    Great discussion that is, to my mind, nicely concluded by Bob:

    In other words, bmaz, the letter of the law is seldom enforced in every aspect, with equal force all across the board. Why double down on Manning, but leave Jaime Dimon to continue feeding off the labor of others?

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