Leaking information to the press is a long-standing Washington practice. It is the means by which trial balloons are floated, agendas are pushed, and careers are advanced and demolished. The response as to whether leaks are a good thing or a bad thing is usually a partisan one depending on who is doing the leaking and who the targets of the leaks are, rather than on broad general principles of whether the leaks are in the public interest. What is unusual is such a high level of leaks so early in an administration.
The number of leaks emanating from the Trump White House is reaching gusher levels and we are seeing the usual scrambling by political types to realign. Those who deplored earlier leaks by Chelsea Manning and Edwards Snowden and others because they embarrassed president Obama and Hillary Clinton are now supporters of the leaks that are embarrassing Donald Trump, and the reverse is also true.
The leaks about the calls that ex-National Security Advisor Michael Flynn’s made to the Russian ambassador and resulted in his being forced out were clearly the products of intercepts made by the National Security Agency and would likely be classified. Not surprisingly, Trump is furious that the intelligence agencies leaked the damaging information about Flynn and sees that as the main problem, not the information that has been revealed, and Republicans want to focus on the illegality of releasing classified information.
The opponents of leaks tend to focus on the legality while the defenders focus on the public interest served. Susan Hennessey and Helen Klein Murillo write about the law, the history of White House leaks, and the reactions to them and say that the recent leakers could be charged with a variety of crimes including violating the Espionage Act, the same draconian law that president Obama refused to rule out using against Snowden.
As Glenn Greenwald writes that the fact that the leaks were illegal does not mean they were unjustified.
PRESIDENT TRUMP’S NATIONAL security adviser, Gen. Michael Flynn, was forced to resign on Monday night as a result of getting caught lying about whether he discussed sanctions in a December telephone call with a Russian diplomat. The only reason the public learned about Flynn’s lie is because someone inside the U.S. government violated the criminal law by leaking the contents of Flynn’s intercepted communications.
That all of these officials committed major crimes can hardly be disputed. In January, CNN reported that Flynn’s calls with the Russians “were captured by routine U.S. eavesdropping targeting the Russian diplomats.” That means that the contents of those calls were “obtained by the processes of communication intelligence from the communications of [a] foreign government,” which in turn means that anyone who discloses them — or reports them to the public — is guilty of a felony under the statute.
Yet very few people are calling for a criminal investigation or the prosecution of these leakers, nor demanding the leakers step forward and “face the music” — for very good reason: The officials leaking this information acted justifiably, despite the fact that they violated the law. That’s because the leaks revealed that a high government official, Gen. Flynn, blatantly lied to the public about a material matter — his conversations with Russian diplomats — and the public has the absolute right to know this.
This episode underscores a critical point: The mere fact that an act is illegal does not mean it is unjust or even deserving of punishment. Oftentimes, the most just acts are precisely the ones that the law prohibits.
It’s very possible — I’d say likely — that the motive here was vindictive rather than noble. Whatever else is true, this is a case where the intelligence community, through strategic (and illegal) leaks, destroyed one of its primary adversaries in the Trump White House.
But no matter. What matters is not the motive of the leaker but the effects of the leak. Any leak that results in the exposure of high-level wrongdoing — as this one did — should be praised, not scorned and punished.
IT IS, OF COURSE, bizarre to watch this principle now so widely celebrated. Over the last eight years, President Obama implemented the most vindictive and aggressive war on whistleblowers in all of U.S. history.
It’s hard to put into words how strange it is to watch the very same people — from both parties, across the ideological spectrum — who called for the heads of Edward Snowden, Chelsea Manning, Tom Drake, and so many other Obama-era leakers today heap praise on those who leaked the highly sensitive, classified SIGINT information that brought down Gen. Flynn.
It’s even more surreal to watch Democrats act as though lying to the public is some grave firing offense when President Obama’s top national security official, James Clapper, got caught red-handed not only lying to the public but also to Congress — about a domestic surveillance program that courts ruled was illegal. And despite the fact that lying to Congress is a felony, he kept his job until the very last day of the Obama presidency.
Alex Emmons writes that some of the strongest supporters of the NSA and other agencies’ abuse of surveillance practices are now suddenly concerned about this problem.
REP. DEVIN NUNES, the chairman of the House Intelligence Committee and a leading defender of government surveillance programs, reacted with outrage when he found out the FBI had listened in on conversations between the Russian ambassador and a top Trump official.
What’s particularly ironic about Nunes’s comments was that he seemed to be ignoring one of the biggest gaps in U.S. surveillance law — one which he has personally defended — that allows the government to spy on millions of Americans without any sort of probable cause by targeting their communications with people overseas.
“The concept that many Americans’ communications are incidentally recorded when speaking to foreign targets is Foreign Intelligence 101,” said Jake Laperruque, senior counsel at the Constitution Project. “It’s hard to believe a competent intelligence committee chair doesn’t understand this.”
The Wall Street Journal has also celebrated the law that contains the loophole and after its reauthorization in 2013 praised Obama as an “unapologetic asserter of Presidential powers.”
In 2015, Reps. Zoe Loefgren, D-Calif., and Thomas Massie, R-Ky., introduced an amendment that would have required the FBI to get a search warrant in the exact situation Flynn is facing: when they rely on capabilities of the NSA to target international communications that involve Americans.
But rather than expressing concern then, Nunes sent a letter to his colleagues opposing the measure. “When the Intelligence Community acquires the communications of CT [counterterrorism] or CI [counterintelligence] targets abroad, among the most critical issues is to determine if they are communicating with persons in the United States,” he wrote.
And now the leaking has gone meta, with leaks about the leaks, with some suggesting that the intelligence agencies are furious that Trump and his surrogates and supporters are attacking them for the Flynn leaks and are vowing to fight back.
Perhaps it is time to reuse this wonderful mashup of Cookie Monster ‘singing’ the Tom Waits song God’s Away on Business. The opening lyrics are very apropos in their descriptions of the people who are now running the government.
I’d sell your heart to the junk-man baby for a buck, for a buck
If you’re looking for someone to pull you out of that ditch, you’re out of luck, you’re out of luck
The ship is sinking, the ship is sinking, the ship is sinking
There’s a leak, there’s a leak in the boiler room
The poor, the lame, the blind
Who are the ones that we kept in charge?
Killers, thieves, and lawyers
God’s away, God’s away, God’s away on business. Business.
God’s away, God’s away, God’s away on business. Business.