WHEN President Obama re leased the "torture memos" exposing the CIA's en hanced interrogation tactics, he took advantage of his constitutional authority to disclose national-security information. But he should have weighed his actions against their likely outcome: that he won't have the exclusive ability to exercise this power for long.
The memos have given leftist opponents of the War on Terror -- from Congress to United Nations bureaucrats in Vienna -- more reason to demand the disclosure of further information. And they've given a political boost to those seeking to wrest the power to release sensitive information from the Executive Branch.
In particular, sources say that Senate Judiciary Committee Chairman Patrick Leahy will, as early as this week, take up two disastrous pieces of legislation that could severely undermine the president's executive authority in this regard.
One is the Free Flow of Information Act, a media-shield law that aims to prevent reporters from having to name sources to federal investigators -- and that would make identifying government leakers nearly impossible.
The legislation has bipartisan support, but some Republicans worry about the bill's extremely loose definition of who qualifies as a "journalist."
Texas Sen. John Cornyn has noted that virtually anyone who disseminates information for public consumption qualifies as a "covered person." It's easy to envision so-called "document dump" sites receiving classified papers and putting them, in their entirety, online -- offering a direct channel between government vaults and Web-savvy terrorists.
The real check on leaking comes from the government's ability to prosecute officials who violate confidentiality. As incentives for not disclosing classified information get stripped away, it becomes open season for leakers. For now, Obama can release classified information like the "torture memos" under the circumstances of his choosing -- but if Leahy gets the Free Flow of Information Act through, the president could soon lose that unique role to every bureaucrat with a security clearance and a blog.
Of greater concern is Leahy's own State Secrets Protection Act, which would strip the Executive Branch of its exclusive control of information vital to national security. Right now, if an American who thinks he was wiretapped demands that the National Security Administration release the details of its surveillance program during the legal discovery process, the government can invoke the "state-secrets privilege" -- arguing that the case should be dismissed because such disclosure would compromise national security. The practice is decades old; federal courts almost always respect the government's claims.
But not if Leahy has his way. Under his bill, a heavy burden would fall on the executive branch to prove that state secrets are worth keeping. Federal judges -- with no training or expertise in defense or security -- would decide what intelligence secrets are and aren't essential to keeping the American people safe.
Moreover, these unelected judges wouldn't be accountable for their decisions -- because they'd face no threat to their life tenure, even if their disclosures resulted in attacks on the American homeland. In a letter to Leahy last year, then-Attorney General Michael Mukasey warned that the bill might even be unconstitutional because it "raises separation-of-powers concerns because the provisions purport to transfer to the judiciary through legislation authorities that the Constitution commits to the president."
This shakeup is one Obama, in theory, opposes. Earlier this month, the administration filed a motion to dismiss a civil lawsuit, Jewel v. NSA, related to the terrorist-surveillance program. The Obama Justice Department hewed to the Bush administration's line that the case "would cause exceptionally grave harm to national security." In February, the administration maintained the Bush position on state secrets in Mohamed v. Jeppesen DataPlan Inc., in which the American Civil Liberties Union sued a unit of Boeing for its alleged role in helping the CIA conduct extraordinary renditions.
Now, if Obama wishes to preserve the state-secrets privilege, he'll have to oppose Leahy, a senior member of his own party. If not, he'll endure the embarrassment of having the legislative branch neuter his executive authority. Until last week, the president could have drawn comfort from the fact that both the media shield and state-secrets bills were controversial and wouldn't be enacted without a fight. But Obama's release of the "torture memos" -- in effect, a campaign to make the last eight years look like a massive cover-up of executive abuses -- has created a political environment in which it's hard to oppose constraints on executive power.
In this, Obama hasn't done himself any favors. Like it or not, the American people chose him for the presidency -- and to exercise all its rights, including deciding what defense information should be made available to the world. Obama has these responsibilities -- not bureaucrats, judges or a Congress determined to undermine presidential power.
By releasing the "torture memos," though, Obama plays right into their hands. He'd do well to stop now, because when it comes to presidential control over sensitive information, Obama may find out soon that if you abuse it, you lose it.
Meghan Clyne New York Post 4/27/09
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