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The first presidential-legacy debate of 2013 erupted without warning last week, showcasing a surprisingly contentious dispute over, of all things, the national-security leaks and the U.S. Constitution's guarantee of freedom of the press.
The debate seemed to become a face-off pitting a former University of Chicago constitutional-law lecturer, Barack Obama, against America's second commander in chief in the war on terror, Barack Obama.
At this writing, there is no clear winner.
At issue are two Justice Department probes of national-security leaks that were undertaken with the knowledge of Obama's attorney general, Eric Holder. The government was recently revealed to have secretly seized telephone records of the Associated Press after AP reporters learned in 2012 that the CIA and its associates had foiled a Yemen-based al-Qaida plot to bomb an airliner. Also, the Justice Department reportedly used the century-old Espionage Act to obtain phone records, emails and other data of Fox News correspondent James Rosen, labeling him a possible criminal "co-conspirator."
At a May 16 press conference, Obama had said he had "no apologies" for his administration's sweeping effort in which the government obtained records for phones used by perhaps 100 AP journalists. "Leaks related to national security can put people at risk," Obama said. "... And so I make no apologies, and I don't think the American people would expect me, as commander in chief, not to be concerned about information that might compromise their missions or might get them killed."
But on Thursday, in a major counterterrorism policy speech at Washington's National Defense University, Obama sounded more like the con-law prof he used to be. After laying out an academically thoughtful conceptual framework for America's future anti-terrorism policies and prescriptions, the leader who a week earlier had sounded like a "no apologies" national-security prober-in-chief turned, almost apologetically, to the subject of national-security leaks.
"The Justice Department's investigation of national-security leaks offers a recent example of the challenges involved in striking the right balance between our security and our open society," Obama began. "... But a free press is also essential for our democracy. That's who we are. And I'm troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable. Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law."
Why did Obama seem to change so radically his emphasis of tone and substantive concerns in the past week? We may never know for certain – but one possibility is that even he may not have known all the background when he issued his standard line about how the leaks might have gotten people on a mission killed.
First (and most important): I know of no journalist who would intentionally jeopardize the safety of troops, government agents or their missions for a scoop. I have withheld information at the request of the White House and CIA – even when it meant losing credit for a scoop. But it is also true that the reporting of certain facts may expose some covert agent in ways a reporter doesn't foresee. According to the AP, it held its story for five days, at the U.S. government's request, until a government official assured the news organization that an operative's mission was no longer in jeopardy. AP says it finally ran the story only after an official said the government planned to release the info itself – and offered a scoop of just several hours before the official version was released.
Second: The AP records seizure was absurdly broad – a federal fishing expedition that gave officials secret access to phones used for two months by more than 100 journalists, when only about six worked on the story. Government officials thus gave themselves access to all sorts of info on how the AP gathered unrelated news.
Third: In the case of Fox News' Rosen, all of his communications, emails, meetings and so on were traced – reportedly even records of his parents' phone after he was listed as a possible "co-conspirator." Yet his report on the plans of North Korea's inner circle for a nuclear test could have tipped off Pyongyang that its communications were intercepted.
Unlike many in my line of work, I'm not a journalist who is quick to claim concerns about a "chilling" effect on my reporting; I figure that mainly comes with the job, every time we promise not to reveal a source's identity – and keep our word.
But in the Fox correspondent's case, the FBI had plenty of access to the phone, email and other records of a State Department security contractor, Stephen Jin-Woo Kim, who was indicted for providing classified info to Rosen.
The Justice Department's willingness to claim Rosen might be a criminal "co-conspirator" under the rarely used espionage act – just to get search warrants – looms as a blatant overreach that should concern all Americans. Even as it now apparently concerns the president. Obama seems so concerned, in fact, that he's ordered a review of how the Justice Department handled the two cases – a review to be conducted by, of all people, Attorney General Holder.