Sen. Dianne Feinstein (D-CA) (photo: US Congress)

(update below)

Forty years ago, two reporters widely considered to be heroes of investigative journalism broke the story of the Watergate scandal. They benefited from a leak from a source that became known as “Deep Throat.” The story uncovered numerous crimes committed by President Richard Nixon’s administration and eventually pushed him to resign from the presidency.

Now, as attention is focused on leaks from the administration of President Barack Obama, both of these journalists, Carl Bernstein and Bob Woodward, caution against any investigation into how key details on Obama’s “kill list,” cyber warfare against Iran and the CIA underwear bomb plot sting operation in Yemen became public information.

Bernstein, according to the Village Voice, “You’ve got to be very careful about creating a witch hunt for sources and a witch hunt in which you go after reporters, because now more than ever we need real reporting on this presidency, on national security, on all these areas and the press is not the problem here.”

So far, supposed threats to national security have been the issue.The hysteria around what could happen to the United States if leakers were allowed to go unpunished has been central to the controversy around the Obama administration’s leaking. The threat to freedom of the press posed by an investigation has not mattered to politicians calling for an investigation. Instead, a lot of the discussion has been around how the leaks benefit the president.

Republican Senator John McCain declared in a floor statement in the Senate on June 5, “Regardless of how politically useful these leaks may be to the President, they have to stop. The fact that this Administration would aggressively pursue leaks perpetrated by a 22-year old Army private in the ‘WikiLeaks’ matter and former CIA employees in other leaks cases but apparently sanction leaks made by senior Administration officials for political purposes is simply unacceptable. It also calls for the need for a special counsel to investigate what happened here.”

House Homeland Security Committee Chairman, Representative Peter King, told Fox News he is trying to be John Wayne or George Patton and “build up his reputation” and called the leaks “the most shameful cascade of leaks I’ve ever heard or seen in government.” House Intelligence Committee Chairman, Representative Mike Rogers, who, like McCain, has been pushing for a special counsel, concluded, “It’s pretty hard not to call it treason when someone is leaking this type of information. I don’t know for what gain, but when it causes this much damage to our ability to continue to do what we do, including putting lives at risk, pretty dangerous stuff.” And, chair of the Senate Intelligence Committee, Democratic Senator Dianne Feinstein, vented to CNN’s Wolf Blitzer, “What we’re seeing…is an Anschluss, an avalanche of leaks. And it’s very, very disturbing. You know, it’s dismayed our allies. It puts American lives in jeopardy. It puts our nation’s security in jeopardy.”

Each of these politicians appears to be emboldened by the Obama administration’s prosecution of whistleblowers and the fact that the administration has a disposition against employees from the intelligence community that use their security clearance to blow the whistle on crimes or misconduct. In fact, they each were some of the most vocal politicians who spoke out in opposition to WikiLeaks and the soldier alleged to have released information to WikiLeaks, Bradley Manning, when the organization began to disclose information in 2010.

Feinstein wrote in the Wall Street Journal on the release of US State Embassy cables, “When WikiLeaks founder Julian Assange released his latest document trove–more than 250,000 secret State Department cables–he intentionally harmed the U.S. government. The release of these documents damages our national interests and puts innocent lives at risk. He should be vigorously prosecuted for espionage.” Rogers called for Manning to be executed for “aiding the enemy.” King called WikiLeaks’ releases of information “terrorism” and unsuccessfully pushed for the Treasury Department “to add WikiLeaks and its founder Jullian Assange to the Specially Designated National and Blocked Persons List (SDN List).”  McCain characterized the releases as the worst security breach in American history, and in July 2011, he renewed an effort to establish a select committee to address “insider threats” in government.

The politicians gunning for someone within the Obama administration to hold responsible for leaks want nothing less than someone they can use to justify increased secrecy in government. They want an official they can use to call for a further clampdown on disclosures on national security issues to reporters. Understanding that, unlike President George W. Bush, Obama does not merely retaliate against whistleblowers but also prosecutes them, Republicans like McCain and King see this as an opportunity to make political points in an election year. Having successfully forced the administration into refusing to try  terror suspects at Guantanamo in civil ccourts, having prevented the administration from closing Guantanamo and having inspired the administration to expand the US covert drone war so there would be no question that Obama was fiercely fighting the “war on terrorism,” this is the next area of national security policy in which Obama is vulnerable.

Feinstein, Republican Senator Saxby Chambliss, Rogers and Democratic Representative Dutch Ruppersberger are all plotting legislative action in response to the leak of public information. The lawmakers say it will be aimed at “preventing future leaks.”

What exactly would this piece of legislation do? Establish something resembling an Official Secrets Act?

There currently exists no law that makes disclosing classified information in and of itself illegal. One has to be guilty of harming national security or effectively help “enemies” by releasing information if they disclose information. But, National Security Agency whistleblower Thomas Drake suspects politicians could generate pressure for an Official Secrets Act. He says the “real and continuing threat” is the “clear and present danger posed by direct assault on the First Amendment by the government.” Such an assault chills freedom of the press. It makes government employees fear speaking with reporters. If reporters do not have sources, they have no stories.

The press used to have a much more public debate on national security issues. Now the government increasingly uses secrecy powers to keep information that should be public from being released into the public domain. Drake said on Al Jazeera English’s ”Listening Post” the “Executive Branch has said there’s a privilege when it comes to national security. It’s really not up for debate. We’ll determine what that debate is. We will share the words we want you to hear and the public to hear. And just trust us that we’re doing this in your best interest.”

The Obama administration has, since Day 1, fought to control national security debates. They’ve worked to limit discussion. They have authorized discussion on national security policy that will not have adverse effects on the administration. Officials have talked with reporters about a “kill list” that makes President Obama America’s Drone Warrior-in-Chief, Stuxnet, the raid on Osama bin Laden and a memo on US-born cleric Anwar Al-Awlaki, which contained the administration’s legal justification for assassinating Al-Awlaki with a drone while at the same time going after people that allegedly disclosed information on NSA warrantless wiretapping, interrogations of terror suspects, war crimes, etc. Administration officials like Attorney General Eric Holder and counterterrorism chief John Brennan have also given major policy speeches on the administration’s drones. The speeches have been cheap attempts at transparency and a way to fend off critics that demand the president release information on what gives him the legal authority to execute terror suspects abroad without judicial process. The administration, like President George W. Bush and other previous presidential administrations, has also engaged in selective leaking to bolster support for agendas that may otherwise be controversial if the full details became known through Freedom of Information Act (FOIA) requests.

The press has taken notice. They understand the way the game works. People like Daniel Klaidman, author of Kill or Capture, David Sanger, author of Confront and Conceal, and others in media obtain scoops by maintaining a delicate relationship with officials in the administration. Reporters like Sanger even go to officials before publishing to see if they do not want the material published.  This isn’t how the press in America is supposed to function. But the level of secrecy in government is so extraordinary that journalists that have cozy relationships with the powerful happen to be one of the few ways that Americans can find out key details about what is going on, especially with national security matters.

Even so, this deference to power isn’t enough for politicians. The way Feinstein is on the prowl leads one to believe that politicians would suggest reporters not conduct any investigations at all. Feinstein said on CNN about Sanger: “He assured me that what he was publishing, he had worked out with various agencies and he didn’t believe that anything was revealed that wasn’t known already…Well, I read ‘The New York Times’ article and my heart dropped, because he wove a tapestry which has an impact that’s beyond any single one thing. And he’s very good at what he does. And he spent a year figuring it all out. And he’s just one. And this is a problem.”

Feinstein makes it clear here that journalists are the problem. Officials with loose lips are not the problem. Reporters who go beyond being mere stenographers that appear on television to report administration or political talking points are the problem. They, too, are victims of this war on whistleblowing. For example, James Risen has been subjected to a government effort to strip him of his reporter’s privilege so the government can target his sources. Yet, this reality which has been ever so apparent at least since Bush was in office does not animate more in journalism to speak out in defense of their profession.

As Jesselyn Radack of the Government Accountability Project said on Al Jazeera English‘s “Listening Post,” “Until it happens to you, you don’t understand the full impact,” of this war on whistleblowing. She added:

I think the media really should dig into what is driving Obama’s war on whistleblowers. Is it that he wants to curry favor with the national security and intelligence establishment, which found him to be weak going into office? I think journalists really need to be asking the government the hard questions of whether the intelligence agencies are driving this or whether people at the Justice Department are driving this? And why this president – who was elected on a platform of openness and transparency – is engaged in one of the worst crackdowns of public information that we’ve seen since the McCarthy era.

The core of the issue around leaks really isn’t some threat to national security. The government under Obama is classifying more information than ever: 77 million documents were classified in 2010, an increase of 40% in one year. The information that has come out from WikiLeaks, whistleblowers and selective leaking is only a tiny, tiny fraction of what is really going on, and at least in the cases that legislators aim to prosecute, only involve people speaking to reporters perhaps without authorization. There really haven’t been any documents on the “kill list,” Stuxnet, or CIA underwear bomb plot sting operation that have made it into the public domain like the documents that were disclosed by WikiLeaks.

Of course, the Obama administration is not likely to reassess its policy of being what the the San Francisco characterizes as ”the most forceful, vigilant and merciless” administration “in cracking down on whistle-blowers and leakers in nearly a century.” The administration is likely to do as it has done since taking office: hedge its bets.

The administration has developed a reputation since WikiLeaks of having “zero tolerance” when it comes to the unauthorized release of government information into the public domain by people outside of the White House, and this reputation is a critical part of Obama’s “tough” on terrorism image. If that requires Obama to endorse some kind of measure that further chills press freedom and further reduces the minimal rights that intelligence community whistleblowers are already afforded, the administration will support such a measure.

Update

Additional point that deserves to be made clearly: this leaks investigation could potentially have a very negative impact on the journalists in America that still practice investigative journalism.

Senator Jeff Sessions went through a New York Times article written by Jo Becker and Scott Shane on Obama’s “kill list” during a Senate Judiciary Committee hearing that Attorney General Eric Holder testified at this morning. He highlighted the individuals that the journalist who wrote the article interviewed. He said “these” people “were all talking to the New York Times. Somebody provided information that shouldn’t have been provided. These are some of the closest people you have in government to the President of the United States. So, this is a dangerous thing.” He went on to note that the Times was talking to senior officials at the Justice Department. He suggested this is a “matter of seriousness.”

What Sessions was upset by was the fact that government employees had talked to the press. Therefore, what is at stake here is the free speech rights of government employees and whether they should be allowed to talk to the press.

Perhaps some of the information in the articles and books on national security matters contain classified information. Perhaps they only contain what officials would call “sensitive information,” unclassified information that most in government think should have been kept secret. Either way the actions taken by lawmakers could have a chilling effect on free speech and the ability of journalists to talk to people in government and put together news stories.