It’s hard to feel comfortable with the Obama administration’s aggressive pursuit of national security leaks. The U.S. Department of Justice has acknowledged seizing phone records from Associated Press reporters in connection with a leak concerning a 2012 counterterrorism operation in Yemen. Fox News correspondent James Rosen’s e-mail was examined in an effort to track down unauthorized disclosures about North Korea. The Justice Department went so far as to call the reporter a “co-conspirator.”
Leaks are an especially vexing problem in part because they are routine and also because they are often a means of informing the public. Like its predecessors, the Obama administration reserves the right to define what a national security leak is. What the news media—and all Americans—should fear is that those in power might use “national security” as a catch-all to pursue leaks that don’t threaten security so much as cause embarrassment.
Devising better protocols to confine the government’s reach poses a challenge. Julian Sanchez, a research fellow at the libertarian Cato Institute in Washington, has proposed that Congress conduct a comprehensive audit of previous government leak investigations. The decade after Sept. 11 provides ample case studies. A review of past practices, including the deployment of databases, the grounds for issuing subpoenas, and the pursuit of reporters’ records, could point the way to necessary changes in light of new technologies and enhanced national security powers. As the furor over the AP case makes plain, the rules at the very least need clarification; it’s only a matter of time before the next legal battle over an unauthorized leak.
A forensic analysis of past leak investigations would enable Washington to move to the ultimate goal: a more comprehensive—and comprehensible—set of ground rules to sustain the delicate balance of national security and freedom of information.