The myths of leak investigations

As a journalist, I don't think, a priori, that criminal leak investigations are bad for democracy. I recognize that the government has an obligation to pursue and prosecute employees who illegally disclose classified information. I have an obligation to protect my sources. To be sure, seeking reporters' phone logs is a significant use of executive power. It ought only be used when, as the Justice Department's own guidelines suggest, all other mechanisms to discover the source of a leak have been exhausted.

But what bothers me about the recent spate of leak investigations initiated by the Justice Department, and about the one that led to the unprecedented subpoena of toll records for Associated Press reporters, is that their origins are based on several damaging myths.

One myth is that there is one standard across the government for punishing disclosures of classified information. Another is that everyone in the government is treated equally under its law. A third is that leak investigations are pursued judiciously, cautiously, and not arbitrarily.

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That's not true. Those unlikeliest to leak are most likely to be blamed for leaking. Those who do leak believe they have extra-judicial excuses in their pocket that give them free passes. And politics — not partisan politics, but just politics — often determines what the FBI pays attention to.

If you've got a security clearance, aren't a "senior" anything, not a general or flag officer, and are not a political appointee, the chances that you or any of your colleagues would disclose information to a journalist is infinitesimally small. You're part of the, say, 99.5 percent of patriotic, upstanding citizens who work in the national security space.

You wouldn't know that if you listened to your superiors. They seem to think that you are one cough away from giving up the nuclear codes.

Instead of strengthening internal mechanisms for whistleblowers, the government just orders more polygraphs. For you. It issues stern warnings to the workforce about unauthorized disclosures of classified information and creates echelons of incentives for people to tattle on their colleagues for suspicious behavior. It creates electronic audit trails, so that Big Brother can watch Big Brother.

And it does so in an environment in which newspapers publish classified information, leaked by the other 0.5 percent, on a daily basis.

If you're a member of the 99.5 percent, you feel like you're being blamed and shamed for something that you didn't and would never do. Further, you do not have the informal grab bag of excuses that would allow you to justify (even to yourself) a discussion with reporters about classified information. These excuses — call them Teflon barnacles — attach themselves to members of the senior executive service at high levels, to political appointees, to flag and general officers, and to those White House staffers who could claim some sort of policy penumbra privilege to discuss classified information because doing so furthers the interests of the president's policy, and is thus somehow "authorized" by the president. You certainly won't get the lawyers they'll get. And you can't consult with your superiors in the same informal way that these others can.

The White House insists, with reason, that the disclosure of the foiled IED plot investigation hurt the prospects for more good to come out of the operation. But hurt and harm are different beasts. Indeed, the legal lingua franca focuses on harm and employs a synonym for it: damage. Information must be protected, and given a special status, if its disclosure has the reasonable potential to "damage" national security. (That's plain old "Damage" for information marked CONFIDENTIAL, "serious damage" for information marked SECRET, and "exceptionally grave damage" for information marked "TOP SECRET.")

In the incidence of the foiled plot to detonate an IED in the U.S., the White House was able to declassify the fact of the operation and then decide what details crossed the line. Its standard of harm was inherently subjective. It may also have been protective, if John Brennan, then the president's top counter-terrorism adviser, found himself implying too much by conceding in a background briefing to "inside control" of the plot.

Although I am certain that leaks have hurt national security, I do not know of a single incidence where a published leak of classification information by a journalist has harmed it.

Maybe this is because I don't know of what I can't know (because it's classified), but I also think is has something to do with the ability of senior officials to discuss classified information in responsible ways and not worry about being penalized for it. It also suggests that the radioactive half-life of classified information is a lot more limited than the government admits. In a way, then, the investigation of a high-level leak is a departure from the norm. Finally, the top half a percent gets a chance to sweat the polygraph.

But politics, and not objective criteria, forced the Justice Department to act. The government had and has significant political equities in discovering and investigating this leak. These equities have little to do with national security.

I concede that the Associated Press story may have stopped the government from unfurling all of the ends of a real plot to detonate an IED in the heart of the country. But conflicting statements from the government itself about when the level of harm for publishing the information dropped suggests that there is no firm agreement even within the national security establishment about that. Further leaks by the government undermined its own case here.

At the time, in the spring of of 2012, the administration and Congress were wrestling over previous leaks and about Congressional access to classified information about the president's counter-terrorism policies. Congress always wants to know something before journalists do. The White House was insisting that leaks about drone strikes weren't originating from the West Wing.

When the foiled plot was revealed in the middle of this tempest, the White House's outrage was genuine, Congress demanded a leak investigation, and the Justice Department promised to initiate one. In the immediate aftermath, the White House wanted to clear Brennan's name; the president was going to nominate him to run the CIA.

The Justice Department had plenty of political cover: The president himself vowed to hunt down and punish the leakers.

Leak investigations lose legitimacy and become chilling when they seem arbitrarily and inconsistently initiated, pursued, and prosecuted. Prosecutorial discretion is one thing. But pursuing leakers because it makes things easier, or because it helps further policy, or it soothes relations with Congress, devalues the work that the FBI does and unfairly burdens those least likely to leak.

Prosecutions should be rare, aloof from the small-p politics of the moment, and pursued when genuine harm has been done.