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by Paul R. Hollrah, ©2012

Should those who leaked sensitive national security information be prosecuted?

(Jun. 22, 2012) — On September 28, 2005, after nearly three months behind bars, New York Times reporter Judith Miller was released from a federal detention center in Alexandria, Virginia.  Miller was sent to jail on July 6, 2005 after refusing to divulge a source when questioned before a federal grand jury looking into the alleged leak of CIA employee Valerie Plame’s identity by senior White House officials.  She was freed after receiving an unconditional release of confidentiality from her source, Vice President Dick Cheney’s chief of staff, I. Lewis “Scooter” Libby, a principal target of Special Counsel Patrick Fitzgerald’s investigation.

Since the term of the federal grand jury was to expire on October 28, just 30 days later, Miller would have been freed at that time.  However, prosecutors could have charged her with criminal contempt of court at that time if she continued to defy the special prosecutor.

In an August 2, 2005 article titled, “Judith Miller in Jail: Principle vs. Politics,” Washington Post writer Richard Cohen had this to say: “Before Judith Miller of the New York Times went to jail for not revealing her sources, I offered her my services.  I suggested that she tell me her source and then, once she was in jail, I would reveal that I knew, and the special prosecutor would jail me as well… but not before I told another journalist.  After four score and seven of us were in the calaboose, the prosecutor would… like the British facing the indomitable Gandhi… collapse before our moral force and leave us to honor our solemn commitments as we have done since time immemorial.  I now know my plan would have failed…”

What caused Cohen to predict failure was the sudden realization that “… too much of the press would still be writing about how Miller deserves her fate.”  He said, “It is a squalid sight.”

Two recent news stories give us cause to reflect on the “moral force” and the “solemn commitment” that Cohen spoke of… the “solemn commitment” that requires journalists to root out and report the truth, no matter how difficult or dangerous, and the “moral force” that requires them to satisfy the people’s right to know, even when what they must report may be totally in conflict with their own personal values or beliefs.

In one case we have the June 15, 2012 Reuters story regarding the murder of a Mexican reporter.  According to Reuters, “Assailants kidnapped and killed a reporter who covered crime news in Veracruz State, the latest in a series of attacks on journalists in a relentless drug war across the country.  The reporter, Víctor Báez, who worked for the Mexican daily newspaper Milenio, was abducted as he was leaving his office in the town of Xalapa late Wednesday.”

According to Reuters, “several journalists have left Veracruz State in recent months, fearing for their lives, but Mr. Báez had insisted on staying to continue his work.  He is at least the sixth journalist to have been killed in Mexico in the past two months.”

After being led to believe in journalism school that their intended profession was not a life or death pursuit, how many journalists would display the kind of courage and devotion to duty that Victor Báez displayed?  And do we, as news consumers, have a right to ask journalists to risk their lives because we insist upon our “right to know?”  While we may have a “right to know,” none of us has the right to ask a journalist to risk his/her life because we assert a “need to know” about events in the most dangerous parts of the world.  Yes, journalists have a right to risk life and limb to cover a major news story, but the decision to do so must be theirs alone, not ours.

On the other hand, we have the case of New York Times reporter David Sanger, who reports not from the deadly streets of Veracruz State in Mexico, or from the equally deadly precincts of Obama’s Chicago, but from the relative safety of an office in Washington, DC.  In a book titled Confront and Conceal: Obama’s Secret Wars and Surprising Use of American Power, Sanger has written about the serial leaking of top secret national security matters, all of which appear to originate in the White House, and all designed to create a faux image of Barack Obama as a real tough guy on the world stage.  In defending his top secret disclosures, Sanger has said, “No one from the White House, no one from the administration ever said to us ‘do not publish this.’”

The fact that the White House has not complained about the Times’ reports only adds credence to the speculation that the Obama administration leaked the stories with a political end in mind.  Because the information that Mr. Sanger learned and disclosed is of such vital importance to the security of our nation, the most important question is not what was reported, but the identity of his source, or sources.

What is at issue in this instance is the disclosure of the U.S. role, in cooperation with the Israeli intelligence services, in the development and launching of the Stuxnet cyberwar virus, designed to thwart Iranian nuclear weapons development; the disclosure of Obama’s weekly participation in selecting drone targets in Afghanistan and Pakistan from a White House “kill list;” and the disclosure of the CIA’s role in recruiting the Pakistani physician who helped locate and identify Usama bin Laden.  And since Obama’s senior advisor, David Plouffe, has now assured us that Obama did not declassify any of the information disclosed, we can be safe in assuming that the disclosure of this information was, in each instance, an act of treason.

The material reported in Sanger’s book and in the pages of the New York Times is of such detail, including direct quotes from Obama and from members of his National Security Council staff, as to insure that the leaks could only have originated, either directly or indirectly, with those who were present in the Oval Office or in the White House Situation Room… a relatively small number of people.  In an interview with POLITICO, Times managing editor Dean Baquet expressed dismay over the assumption that Sanger was given access to top secrets by a senior Obama official.  He said, “I can’t believe anybody who says these are leaks.  Read those stories.  They are so clearly the product of tons and tons of reporting.”

Of course, the alternative explanation is that the stories are not the product of “tons and tons” of reporting, but of a two or three hour memory-dump by one or two senior national security officials or campaign aides.

In an interview with Howard Kurtz, host of CNN’s “Reliable Sources” program, Sanger admitted that he had worked directly with administration officials.  He said, “This is a book about the totality of the national security strategy of President Obama, what’s worked and what hasn’t… How do you report a book about that without talking to people who were in the room?”

However, in his zeal to make a major journalistic splash, Sanger’s reportorial excess may have inadvertently planted the seeds of a scandal that will sooner or later make the Nixon Watergate scandal and the Clinton Whitewater scandals pale by comparison.

Attorney General Eric Holder has appointed two U.S. attorneys, Ronald C. Machen Jr., U.S. Attorney for the District of Columbia; and Rod J. Rosenstein, U.S. Attorney for the District of Maryland, to lead separate FBI investigations into the leaks.  Of the two, Machen has by far the most difficult assignment because, as a long-time Obama supporter and financial contributor, his work will be done under intense scrutiny by the press, the public, and the Congress.

In Congress, the outrage over the leaks has been non-partisan.  Senator John McCain (R-AZ); Senator Dianne Feinstein (D-CA), Chairman of the Senate Intelligence Committee; Senator John Kerry (D-MA), Chairman of the Senate Foreign Relations Committee; Senator Joe Lieberman (I-CN), Chairman of the Senate Homeland Security Committee; Congressman Mike Rogers (R-MI), Chairman of the House Permanent Select Committee on Intelligence; and numerous others have called for the appointment of an Independent Counsel… a hard-nosed prosecutor with no political ties to the Obama administration.

It is not clear, as yet, whether Obama and Holder will feel sufficient public pressure to cause them to dismiss Machen and Rosenstein in favor of an Independent Counsel, but it is important for members of their own party, the only people they will listen to, to keep the pressure on.

The most recent independent counsel was Patrick Fitzgerald, of Chicago, who was assigned the task of learning who leaked the identity of CIA analyst Valerie Plame, and whether or not former Illinois Governor Rod Blagojevich had attempted to sell Barack Obama’s old Senate seat.  In the former case, Fitzgerald won a perjury conviction against “Scooter” Libby because Libby could not recall precisely every word of every conversation he’d had years before, and in the latter case he won a conviction against a man who was a typical Chicago Democrat machine politician.  But what Fitzgerald may have lacked in ethics and prosecutorial discretion, he more than made up for in sheer tenacity.  We need a man like Fitzgerald digging around in Obama’s back yard.

The people have every expectation that we will ultimately learn who it was that leaked the top secret material that was disclosed for no better reason than to make Obama look tough.  What the special prosecutors will have to test is how Sanger will respond when he is brought before a grand jury.  When confronted with the choice of doing what he sees as his journalistic duty, or doing what he knows is best for his country, what course will he take?  Will he be guided by a “moral force” that calls him to honor his patriotic duty, or will he honor a “solemn commitment” to a traitor?  The people have a right to know.


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