April 07, 2006,
The more one hears about Scooter Libby’s being authorized to “leak” information from the 2002 National Intelligence Estimate, the more this is revealed as a bogus kerfuffle, manufactured by the press which should be ashamed of itself, since this kind of “leaking” is the media’s stock in trade.
If the president decides to make information public, it is public no matter how classified it was before, and no matter who in the government thinks the publicizing of it is a bone-headed move. The president gets to do that and that’s part of why it matters who the president is.
Classified information belongs to the executive branch. Under the Constitution, the executive power is vested in a single official, the president. As Justice Scalia pointed out in his classic dissent in Morrison v. Olson, this does not mean some of the executive power; it means all of the executive power. The president can make a bad de-classification decision, but it is his decision to make. (In this case, it happens to have been a good decision, made to balance the misinformation put into the public domain by Joseph Wilson and others trying to mislead the public about Iraq’s nuclear intentions.)
What is being talked about in connection with Libby and the NIE was a “leak” not because it was classified. It was a “leak” (a) because the information was not previously public (which does not necessarily have anything to do with whether it was previously classified the executive branch has lots of non-public information that is not classified); and (b) because it was not made generally available, but was disclosed to a particular reporter. This happens every day if it did not, your morning newspaper would be very thin.
Administrations leak or, better, disclose sensitive information in response to political conditions. All presidents do it, and there is nothing wrong with this. In fact, it is hilarious to hear the media, which constantly carps about government secrecy, now complaining about government disclosures.
In many instances, it would be nice (for diplomatic, strategic, investigative, or other purposes) if information could be kept under wraps. But governance is freighted with politics which means it is beset by misinformation, half-truths, and the inaccuracies you get in a bumptious partisan environment, fueled by 24-hour news channels and a press whose default state is frenzy. Consequently, when misinformation approaches a tipping point in the court of public opinion, it is often to the greater good for a president to disclose some sensitive, accurate information so the public is not led astray.
Classic example of this? After the U.S. embassies in Kenya and Tanzania were bombed in 1998, the Clinton Administration retaliated, in part, by bombing the al Shifa pharmaceutical factory in Sudan. Almost immediately, President Clinton was attacked politically: we had taken out a mere aspirin factory, Sudan was not a threat to us, it was a gratuitous act of American aggression, etc.
So what did the Clinton Administration do? Exactly what it should have done. It had intelligence officials leak to the media previously undisclosed, previously classified information which put President Clinton’s decision in sensible context. Besides anonymous leakers, the Administration later sent its top counterterrorism official, Richard Clarke, to provide selectively some of the available intelligence, so the public would understand why President Clinton’s actions had been justified. Here’s how the Washington Post reported it on January 23, 1999:
While U.S. intelligence officials disclosed shortly after the missile attack that they had obtained a soil sample from the El Shifa site that contained a precursor of VX nerve gas, Clarke said that the U.S. government is “sure” that Iraqi nerve gas experts actually produced a powdered VX-like substance at the plant that, when mixed with bleach and water, would have become fully active VX nerve gas.The press was not very supportive of the Sudan bombing it was, after all, a use of American military power. But they liked Clinton, so the selective disclosure of previously classified information by Clinton officials was treated matter-of-factly as it should have been. The story was about the information, not the leak.
To the contrary, they abhor Bush, so the Libby story is about the leak not the NIE information. That information, of course, puts Iraq operations which the media also oppose in more accurate context. Obviously, if your champion is Joseph Wilson, you’d much rather be talking about leaks than substance.
That’s the way the game is played now and it stinks.
Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.