Screen shot from C-SPAN of Obama answering questions on leaks on June 8

(update below)

Amidst all the bipartisan hysteria among United States lawmakers over leaks, head officials at the Justice Department and President Barack Obama’s administration appear to be artfully dodging responsibility for the unprecedented number of leaks prosecutions that have occurred during the Obama presidency. Staff members from the White House and Justice Department are claiming, though six whistleblowers or “leakers” have faced prosecution under the Espionage Act, this was not a result of some top-down presidential directive.

Charlie Savage and Scott Shane of the New York Times report “aides say” Obama “never ordered investigations.” Obama and Attorney General Eric Holder have, according to current and former administration officials, “avoided discussing investigations and prosecutions to avoid any appearance of improper White House influence, a charge Democrats lodged against the Bush administration.” They report Attorney General Eric Holder has “no desire for leak prosecutions to be his legacy.” The record number of prosecutions was “unplanned” and “resulted from several leftover investigations from the Bush administration, a proliferation of e-mail and computer audit trails that increasingly can pinpoint reporters’ sources, bipartisan support in Congress for a tougher approach, and a push by the director of national intelligence in 2009 that sharpened the system for tracking disclosures.”

However, as Savage and Shane make clear, the prosecutions were still approved by the Justice Department. Mark Corrallo, who was director of public affairs for former Attorney General John Ashcroft, Mr. Corallo, told the Times the Obama administration was at fault for “allowing so many leak cases to go forward.” He said, “Sometimes the interests of the prosecutor in the field are at odds with the overall health of our republic,” and added “Holder and his top aides had not been ‘doing their job, which is to make serious judgments about the overall effects of a leak investigation.'”

Obama, under fire from reporters over leaks from his administration, used his administration’s record number of leaks prosecutions to defend himself during a press conference on June 9:

…When this information, or reports, whether true or false, surface on the front page of newspapers, that makes the job of folks on the front lines tougher and it makes my job tougher—which is why since I’ve been in office, my attitude has been zero tolerance for these kinds of leaks and speculation.

Now, we have mechanisms in place where if we can root out folks who have leaked, they will suffer consequences. In some cases, it’s criminal—these are criminal acts when they release information like this. And we will conduct thorough investigations, as we have in the past…

Holder, facing criticism from Senate Republicans at a Justice Department oversight hearing, testified:

We have tried more leak cases — brought more leak cases during the course of this administration than any other administration…I was getting hammered by the left for that only two weeks ago. Now I’m getting hammered by the right for potentially not going after leaks. It makes for an interesting dynamic.

Holder, Obama and others would say these attacks from the “left” and “right” show that the policy toward leaks is a fair and good policy. So, why the equivocations to the Times about targeting “leakers” not being a top-down measure?

The leaks hysteria is forcing the administration to reassess how it publicly presents itself. Since the logic by those clamoring for leaks happens to be, “If you are going to prosecute low-level leakers so vigorously, you should also go after high-ranking officials that release secret or classified information,” the administration has to cloud the issue so it becomes harder for the press and public to argue for prosecuting Obama officials. So, the administration stifles the thirst for all officials to be prosecuted equally and says things like blocking “a case after years of investigation might anger the prosecutors who are supposed to take it to trial.”

This is the kind of gutless politics the Obama administration has practiced. Commonly referred to as “pragmatism,” it is this sort of commitment to policies and an agenda that will produce the least amount of resistance that has defined his presidency. It is this spinelessness toward criticism from lawmakers, the press and the public that ultimately resulted in failures such as the failure to close the Guantanamo Bay prison in Cuba, even though Obama made a significant campaign promise to shut it down to repair America’s image.

The style of governance seems truly unique to the Democratic Party. Only a Democratic president would boast about a policy in a press conference that in one-on-one interviews with reporters his staff would claim “accidentally happened” and there wasn’t anything anyone in the White House could do about it. Bush or a Republican president would defend the policy and even suggest it go further. But, these days Democratic leaders (in fact, most politicians) don’t want to be boxed in. They want to be able to be for something and then have the room to back away from it if it becomes a political hot potato. In this moment, leaks prosecutions are a hot potato because the Republicans and many in the public are being led to believe these leaks threaten national security and someone should be held accountable because previously these sort of leaks were deemed to put national security at risk so why wouldn’t they be as risky for the country now?

Nobody from the Bush administration has been put on trial for authorizing or legalizing methods of torture against prisoners in the “war on terror,” which is a war crime. No heads of banks on Wall Street, who were involved in perpetrating the 2008 economic collapse, have been put on trial. No officials involved in the warrantless wiretapping of Americans under Bush have been put on trial (they were granted retroactive immunity by Congress). The Justice Department has, instead, botched multiple prosecutions against individuals who allegedly committed bribery or other financial crimes and put its resources into prosecuting baseball pitcher Roger Clemens, former Democratic presidential candidate John Edwards, anyone involved in the selling and marketing of medical marijuana, people connected to WikiLeaks and whistleblowers.


The Los Angeles Times reports Director of National Intelligence James Clapper has proposed the idea of using polygraph tests to deter intelligence agency employees from leaking. He suggests forcing them to “answer a direct question in their polygraph examinations about whether they have disclosed information to reporters.”

Government officials who seek top-secret clearances are subject to an initial polygraph test and periodic renewals, in many cases every five years. Currently, they are asked whether they have ever disclosed classified information to someone not authorized to receive it.  But they are not specifically asked about contacts with the news media.

Most intelligence agencies require employees to voluntarily disclose to their bosses any contacts with journalists, but that rule is enforced on an honor system.

Now, would this be limited to classified information? Or would the standard be no disclosures of “sensitive” information or even information on national security matters? Because not all of that information would necessarily be classified.

What should be considered here is intelligence employees should have free speech rights like other government employees to talk about government policies. If the Department of Agriculture can talk to reporters about farm subsidies, Office of the Director of National Intelligence employees should be able to openly discuss policy about the collection of intelligence in the “war on terrorism.” The problem is the government has adopted a standard for censorship that involves preventing any conversation on anything that relates to national security methods or techniques. Just about anything that those who work for Top Secret America do can be considered related to national security methods or techniques.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."