Obama’s Weak Balancing Act

May 16, 2013

by Jeremy Leaming

Like his predecessor President Obama has embraced an aggressive, mostly secret and, at times, constitutionally suspect approach to waging a never-ending war on terror.

Unlike its predecessor, the Obama administration has obsessively investigated leaks of information surrounding some of its counterterrorism efforts. The administration has launched at least six cases of alleged leaks, including one involving a foiled terrorist plot in Yemen that The Associated Press reported on last spring. As part of that investigation the Department of Justice secretly gathered and culled through phone records of AP reporters.

Going on the information we have now it appears that the First Amendment, which protects freedom of speech including press from government interference, was too easily shunted aside in an over-the-top investigation of a leak. The AP was given no chance to challenge a government search of its phone records and have a judge decide whether national security interests trumped freedom of speech in this instance. Yes, Attorney General Eric Holder claims the leak was one of the most egregious he has seen in a long, long time. But he doesn’t explain how it was so terribly egregious, nor do the facts as we know them now support his sweeping assertion.

And today, during a press conference, President Obama hardly appeared fazed by the criticism of the DOJ’s tactics, decrying leaks of counterterrorism efforts. “Leaks related to national security can put people at risk, they can put men and women in uniform that I’ve sent into the battlefield at risk,” he said.

But the May 7, 2012 reporting by the AP, had, according to its president, Gary Pruitt, been held until the White House assured the AP that “national security concerns" were no longer an issue. Pruitt added, “Indeed the White House was preparing to publicly announce that the bomb plot had been foiled.”  

Earlier this week The New York Times Editorial Board hammered the administration for its “zeal” for going after persons accused of leaking national security information. In the AP matter, The Times Editorial Board said the administration had offered no “credible justification for secretly combing through the phone records of reporters and editors at The Associated Press in what looks like a fishing expedition for sources and an effort to frighten off whistle-blowers.”

It’s rather lame to argue that just because Republicans howled loudly over the AP coverage of the foiled terrorist plot in Yemen that the DOJ’s obnoxious action of spying on the AP was somewhat mitigated. Moreover, it’s not like this administration has needed prodding to aggressively and obsessively go after alleged leakers.

So while the DOJ, especially its Civil Rights Division, is worthy of plaudits for taking decisive action to protect voting rights, including trying to shut down onerous states’ restrictions on voting, its treatment of whistle-blowers and obsessive actions to keep its counterterrorism efforts opaque are different stories altogether.

As the ACLU’s Ben Wizner said, “Obtaining a broad range of telephone records in order to ferret out a government leaker is an unacceptable abuse of power. Freedom of press is a pillar of our democracy, and that freedom often depends on confidential communications between reporters and their sources.”

Like all wars before it individual liberties are taking a beating during the indefinite war on terror. The Obama administration provides lofty, but too often empty rhetoric of the need to carefully balance national security interests with protecting constitutional rights.