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Kinsley: Leaks, leakers and legal niceties

How is a published state secret like a pilfered painting? Read on.

June 21, 2012|By Michael Kinsley
  • Some Republicans have accused the Obama administration of leaking details on drone strikes and collaboration with Israel on curbing Iran's nuclear program.
Some Republicans have accused the Obama administration of leaking details… (Jewel Samad / AFG/Getty…)

Cui bono? That's what Wall Street Journal columnist Peggy Noonan asks. "Who benefits" from recent leaks of intelligence information to the media?

The answer is obvious, Noonan writes, and therefore so is the source of the leaks: It's the folks in the Obama administration, who want to make their man look steely and steady at the helm of U.S. foreign policy. Noonan charges "high administration sources" with "diarrhetic volubility" that is "a real breakthrough in the history of indiscretion."

Republicans in Congress agree, possibly after looking up the word "diarrhetic," and are demanding a special prosecutor to investigate the leak source. The call for a special prosecutor is one of the great set pieces of Washington melodrama. Whichever party doesn't control the White House invariably calls for one to investigate some abuse or other, and the party of the president invariably opposes this, calling it a waste of time and money and (if someone is feeling fancy), "the criminalization of political differences." The president usually loses.

When the White House changes hands, the parties change their position on special prosecutors. Republicans used to claim that the office was actually unconstitutional. Now they want one.

Of the supposed national security secrets revealed in recent weeks, it's difficult to see how much practical harm could come from the revelation that President Obama personally picks out the targets for assassination-by-drone, or that the Israelis assisted in a successful U.S. effort to cripple Iran'snuclear program with a computer virus. (After all, Israel is openly contemplating dropping a bomb or two on Iran.) The fact that drone operators — safe in their offices, thousands of miles away — "track victims for days" and "watch them play with their children" before killing them is certainly vivid and possibly detrimental to the war effort. But it's not telling the enemy anything it doesn't already know.

There's no guarantee, of course, that some leaked nugget or other won't be surprising and useful to someone who wishes the U.S. ill. Our response to that possibility, though, is odd.

Suppose the subject were not leaked information but, say, a painting stolen from the National Gallery of Art. And suppose the painting surfaced a few days later in a New York gallery. Would you say: "Let's lease some office space, hire half-a-dozen top litigators, convene a grand jury, bring in the FBI and spend two or three years getting to the bottom of this outrage?" Or would you say: "Hey, here's a thought. Why don't we go and ask the gallery owner where he got the painting?" If he won't say, subpoena him, and if he won't obey the subpoena, put him in jail until he does.

The reason you don't ask the second question, of course, is the 1st Amendment. But it's one thing to say you have the 1st Amendment right to express an idea or expose a fact. It's another thing to praise you for exposing it while condemning the person who gave you the information.

In this case "you" are David Sanger, the New York Times' chief Washington correspondent, in his new book, "Confront and Conceal: Obama's Secret Wars and Surprising Use of American Power." Amid denunciations of everyone Sanger might have talked with in researching the book, Noonan is careful to praise Sanger himself as "a veteran reporter and a professional." Sen. John Kerry, chairman of the Senate Foreign Relations Committee, has criticized the leaks. But in the same breath he praised Sanger as "a damn good reporter." He repeatedly expressed his enormous "respect for David Sanger." He even compared Sanger to the greatest reporter in the universe, Bob Woodward — while condemning the fruits of Sanger's reporting as a threat to our national security.

David Sanger is, indeed, a great reporter, and a very nice fellow. But it seems to me that he and his editors and Kerry and Noonan and everyone else who has weighed in about the leak controversy — possibly even including myself — haven't quite thought this one through.

Either Sanger and his editors were right to publish these revelations because they provide information to the people about secret goings-on by their government, or they were wrong because they supply useful knowledge to our enemies. You can weigh these issues as part of deciding, but you can't avoid a decision by saying that Sanger is doing a great job even though you believe that the result puts our country in peril. There is no "invisible hand" to guarantee that if the government tries to keep its secrets and reporters try to pry them away, the result will be the ideal balance between the people's right to know and the government's need for them not to know.

Sanger and other reporters have expressed irritation that some people think leaks just pour on them from the heavens. They usually have to induce a source to leak through dogged persistence.

All this is true. But return to our painting analogy: If the gallery owner not only received the painting but actually organized the plot to steal it and pressured his insider colleagues to participate, would that be considered a mitigating factor, or one that makes the gallery owner's situation even more precarious?

Michael Kinsley, a former editorial page editor of The Times, is a Bloomberg View columnist.

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