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Bush administration cries wolf on security leaks—A Commentary by Jack M. Balkin

The following op-ed appeared in The Concord Monitor on June 28.

Bush administration cries wolf on security leaks
White House complains only when it fears backlash
By Jack M. Balkin

The Bush administration is upset with newspaper reports that it is spying on people's financial records, arguing that revelation of the secret surveillance program undermines our struggle against global terror. In the abstract, at least, the administration has a point. The difficulty is that the administration so often leaks sensitive information for political purposes that we can no longer be sure when we should really be concerned.

Because the administration is so transparently political in its behavior, it's hard to take all of its claims of severe damage to our national interests at face value.

First, the government often leaks information that it would condemn the press for leaking if the information came from another source or without the administration's blessing. The most obvious example is the infamous Plame affair, where an administration official disclosed the name of an operative with a covert identity. One can only imagine the administration's reaction had the press reported this information against the administration's wishes.

And just the other day, government sources leaked - to the New York Times! -information from a classified briefing about plans to scale down U.S. forces in Iraq. The administration quickly confirmed the disclosure, so quickly, in fact, that there is little doubt that the administration was happy that the news leaked out. After all, the leak sent signals to the American people that we would not be in Iraq forever, and that is a point particularly worth making as the 2006 elections near.

Yet one would think that secret military plans for withdrawal of American troops are exactly the sort of information that our opponents in the Iraqi insurgency would like to know about. And yet, unlike the disclosure of the secret banking surveillance program, the administration did not suggest that this leak to the New York Times was "disgraceful," to use President Bush's words. And unlike the financial records story, no congressman, to my knowledge, has demanded that the Times be prosecuted for it.

One can only conclude that is because the administration figured that leak of possible troop withdrawals benefited the administration's domestic political agenda.

Second, even the way the administration deals with leaks it clearly does not support is transparently political. In the past year newspapers have revealed a great deal of controversial administration behavior, including (1) the secret NSA domestic surveillance program, (2) the secret collection and collation of domestic phone records, (3) secret surveillance of financial records, (4) the administration's constellation of secret overseas prisons which engage in cruel, inhuman and degrading treatment and (5) the administration's practice of secret rendition to countries that abuse and torture prisoners.

In cases (4) and (5) the administration has denied the practice despite considerable evidence to the contrary; in the cases of (1), (2) and (3) it has quickly admitted the practice and then proceeded to condemn the press for revealing it.

The major difference between the two sets of cases has largely to do with whether the administration believes that there is any political advantage in fessing up and then blaming the press.

Thus, it calculates that Americans will be happy to hear that it is engaging in surveillance that keeps them safe, but that Americans don't want to know that their government tortures or sends people off to be tortured. It regards the NSA program as a political winner but the torture revelations as a political loser, and so it says that it is proud of its "terrorist surveillance program" but repeatedly states that it does not torture or condone torture, despite mounting evidence to the contrary.

But its decision about what to confess to and what to deny has almost no relationship to national security. It is, rather, about domestic political advantage.

Make no mistake: There are plenty of things that the press should not report, even in a free society such as ours. But we also live in a society in which the Executive has concentrated increasing amounts of power in itself and has used executive secrecy and national security as means of avoiding oversight into the competence and the legality of its actions.

This administration has misbehaved and misled the country so often that it is hard to avoid the conclusion that now it is mostly trying to beat up on the one remaining institution that can bring any degree of oversight to bear on its mistakes and its illegality -- the press. After all, had the press not disclosed the domestic surveillance story and the abuse of prisoners and detainees, it is highly unlikely that the Congress would have made even the feeble attempts at oversight it has so far offered.

In a political climate with a supine and feckless Congress, the press is the only institution that has any chance of holding this administration accountable for what it has done.

The administration has misled the American people so often about matters of national security that it is hard to trust it even and especially when it complains the most loudly; it has repeatedly disclosed secret information for political ends unrelated to national security while employing the rhetoric of national security to avoid political embarrassment.

If people now view the administration's current complaints against the press with skepticism, it has no one but itself to blame. This is truly the administration that cried wolf.

Jack M. Balkin is a Yale Law School professor. This article was reprinted in The Concord Monitor with permission from his blog, found at balkin.blogspot.com.