The most dangerous thing that can come out of the latest "leak" hysteria is that Congress will pass some broad anti-leak law, which will undoubtedly be used against whistleblowers. With secrecy experts universally agreeing that rampant overclassification plagues the classification system and more information being classified than ever before, any broad anti-leak measure that criminalizes disclosing any classified information is impractical and will more likely serve to punish dissenters than to stop leaks that harm national security.
The latest hysteria over "leaks" stems from both the Obama administration's record-breaking Espionage Act prosecutions of suspected "leakers," who are usually whistleblowers, and from Congress' justifiable outrage at the Obama administration's hypocrisy of prosecuting low and mid-level officials while feeding the media pro-government information that the administration continues to claim is classified.
Rejecting calls to appoint a special prosecutor, Attorney General Eric Holder appointed two prosecutors to investigate the latest leaks. A number of respected commentators have expressed that it will be difficult to prosecute the high-level Obama administration officials that have been leaking supposedly-highly classified information.
Although the last thing this country needs is another "leak" investigation, there are certainly some "leaks" that can be easily traced. At least in one obvious case, Justice Department officials must have been involved in disclosing information, meaning with no special prosecutor, the Justice Department will be investigating itself, a task it has been notoriously terrible at in the past, as my personal experience taught me all too well.
The Justice Department's Office of Legal Counsel (OLC) - still recovering from having issued the infamous torture memos - issued a memorandum "authorizing" the President to target and assassinate American citizen, Muslim cleric Anwar al-Awlaki. We know this because details of the memorandum appeared on the front page of the New York Times. Yet, in response to several FOIA requests and lawsuits, including one from GAP, the Justice Department has repeatedly represented that it "cannot confirm or deny the existence of the memo," because the "existence or nonexistence" is classified.
The Justice Department ought to be able to ascertain who in the small universe of people who knew of and had access to the al-Awlaki memo told the New York Times such details as the memo's legal reasoning, length (about 50-pages), primary authors (David Barron and Martin Lederman), and which other officials reviewed the memo.
Surely the Justice Department can figure out who received the memo from OLC, that should narrow the list of potential "leakers" to primarily Justice Department officials. More telling, theWashington Post, which first reported the memo's existence (a fact the Justice Department maintains is classified), cited "administration officials" as the source.
Yet, despite the fact that, at least with regard to the al-Awlaki memo, the Justice Department will be in essence investigating itself, Holder refused to appoint a special prosecutor with more independence to handle the investigation.
The Obama administration ought to stop focusing on what information it will be most politically-advantageous to "leak," and which low-level officials to hammer for allegedly making "unauthorized" disclosures, and focus more on implementing actual transparency and accountability in government actions. Real transparency means releasing both positive and negative information through official government channels, not "leaking" details of the Bin Laden raid and Stuxnet virus to certain reporters while subpoenaing unfavorable reporters and prosecuting whistleblowers.
Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.