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Remember Larry Franklin…

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I’m not a fan at all of what Larry Franklin did–leaking documents to help drum up a more hawkish policy on Iran.

But amid the news that John Kiriakou’s lawyer, Plato Cacheris, has docketed a change of plea hearing today at 11, it’s worth reviewing what happened with Franklin. After he was charged, the government put a lot of pressure on Franklin and his family (as they have with Kiriakou) and got him to plead guilty, with Cacheris’ advice. He was given a 10 year sentence.

Then the men he leaked to–Steven Rosen and Keith Weissman, with the counsel of Abbe Lowell–started questioning the very premise of the case. First, they prepared to call top officials, including Condi Rice, to demonstrate that they, too, leak classified information all the time. Then, the judge in the case, Thomas Ellis, ruled that they could not be charged for espionage if they didn’t have the intent to harm the US. It was the reverse of that ruling–Leonie Brinkema’s ruling that because Kiriakou was a government employee and therefore intent to harm the US didn’t matter–that led Kiriakou’s lawyers to rush to plead guilty.

But here’s the interesting thing.

After the government’s case against Rosen and Weissman fell apart, the judge then push to re-sentence Franklin. Ultimately, he was sentenced to 10 months of house arrest.

Now, I’m not saying that could happen with Kiriakou. According to Jesselyn Raddack, he will take the plea, and he will serve 2.5 years in prison.

And the cases are not parallel: while top Administration officials leak classified information to the press all the time, only Dick Cheney and Scooter Libby spend their time outing spies (though I still suspect Matt Bissonnette’s identity was confirmed by Pentagon sources).

But the government does continue to give its spooks fairly transparent covers, as was demonstrated when “Stan Dove Boss” got ambushed by cops tied to a drug cartel in Mexico, not to mention the entire CIA annex that militia members seemed well aware of in Benghazi. There was, certainly, the possibility that this case would have demonstrated how cavalierly the CIA had sent its kidnappers and torturers around the world with big expense account. And that, in turn, would demonstrate that the issue is not whether we–or al Qaeda–can learn the identities of the torturers, but whether citizens and journalists can speak of the torturers by name.

In any case, these cases are increasingly about whether or not the government will continue to use clearances and secrecy to set up a two-class society: those whose livelihood depends on complete obedience to the government’s asymmetric use of information, and those outside of that club who are not trusted with the truth about what our country does.

John Kiriakou’s plea deal is not only another victory in the Obama Administration’s cover-up of torture. But it’s also a win for the people who believe the citizens of this democracy are not entitled to know what is being done in their name.

Update: It’s done. Another DOJ win in protecting torturers.

Abbe Lowell’s Leak as Governance Theory

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Josh Gerstein links to this fascinating filing from Abbe Lowell, the lawyer who successfully got leak charges against AIPAC employees dismissed, and now representing a former State Department contractor, Stephen Kim, alleged to have leaked Top Secret information on North Korea to Fox. Gerstein explains:

Stephen Kim, who worked at State as an intelligence adviser before being dismissed as a result of the leak probe, was indicted last August on one count of disclosing classified information and another of lying to the FBI. The charges appear to stem from information that Fox News reporter James Rosen received in June 2009 about North Korea’s plans to conduct a nuclear test.

In motions filed earlier this week, Kim’s defense team, Abbe Lowell, Paul Thompson and James Commons, argue that the charges against Kim should be dismissed because they’re legally flawed. One argument is that the Espionage Act under which Kim was charged is too vague when it comes to situations involving verbal statements to someone outside government rather than giving classified documents to someone. (Kim was not charged with espionage.)

The defense lawyers also mount a defense of leaking as routine and vital to modern American government and note that the law gives no indication of who is “entitled to receive” closely-held defense secrets and who isn’t.

The last bit is what I find particularly interesting. Lowell is obviously doubling down on his successful defense in the AIPAC case by arguing that leaking classified information is central to our system of governance.

Government leaking is not a new phenomenon. What makes these prosecutions particularly worthy of close scrutiny is the fact that the Executive Branch leaks classified information often to forward several of its goals and then prosecutes others in the same branch for doing the same thing. In fact, this country has a long and storied history of government officials leaking information to the press. In one of the earliest leaks in this country s history, Benjamin Franklin publicly confessed to leaking letters authored by loyalist Thomas Hutchinson which were later published in the Boston Gazette. 5 Albert Henry Smyth The Writings of Benjamin Franklin 448 (1905). President George Washington was incensed upon discovering that the confidential terms of Jay’s Treaty had been leaked to a newspaper editor. Todd Estes The Art of Presidential Leadership: George Washington and the Jay Treaty, 109 Virginia Magazine of History and Biography (2001). In one of the most storied leaks in history, the New York Times published sections of the so-called “Pentagon Papers ” a top-secret Department of Defense report on America s political and military involvement in Vietnam. Neil Sheehan Vietnam Archive: Pentagon Study Traces Decades of Growing U.S. Involvement, N.Y. Times June 13, 1971 , at A1. The leak revealed a deliberate pattern of government deception to mislead the country about the government’s intentions to expand the war efforts in Vietnam. Id The Abu Ghraib prison abuse scandal is another example of a leak that called into question important policies the government had tried to keep secret. Seymour M. Hersh, Torture at Abu Ghraib, The New Yorker, May 10, 2004, at 42. And the disclosure of Valerie Plame as an operative for the CIA was a government leak, at the highest levels, to advance an important policy interest of the Bush Administration. David Corn Plamegate Finale: We Were Right; They Were Wrong, The Nation (Oct. 22, 2007). In this country s history, sensitive information has routinely been leaked to the press by officials at all levels of government, causing New York Times reporter James Reston to remark, “[t] ship of state is the only known vessel that leaks from the top.” David E. Rosenbaum, First a Leak, Then a Predictable Pattern, N.Y. Times, October 3 2003.

The practice of leaking has evolved over time and has become so widespread that it is not uncommon to open a national newspaper and find multiples articles attributing their sensitive content to anonymous government sources. During meetings with the press, government offcials and members of their staffs routinely disclose sensitive information to further a variety of legitimate policy objectives. Members of the press then publish the information for consumption by the populace. As the government has imposed ever-more stringent restrictions on information, while simultaneously broadening its definition of what constitutes classified information, leaking has become essential to provide context for messages delivered to the public through official channels. Although reliance on a “leak system” is counterintuitive for a nation that prides itself on open government and places immense value on democratic traditions, it has become a necessary practice, facilitating the exchange of information between the government and its constituency. Read more →

Rule of Law Has Broken Down for Secrets, Just Like Everything Else

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Michael Isikoff takes a story Jack Goldsmith already treated and raises the logical conclusions. As I noted, Jack Goldsmith asked John Rizzo why it was that Woodward could publish the proceedings of a briefing from which even top Obama officials–like John Podesta–were excluded. Rizzo responded,

Simple. When a President himself is a key source and directs or at least signals to his Administration to cooperate with the author, that for all intents and purposes means the book becomes one big authorized disclosure. That’s what Obama did for Woodward, and that’s what Bush did for Woodward in his three books during that Administration, which also were packed with hitherto sensitive information. That’s what is remarkable and unique about Woodward’s standing.

Isikoff notes the same passage Goldsmith did and asks,

How can they credibly prosecute mid-level bureaucrats and junior military officers for leaking classified information to the press when so many high-level officials have dished far more sensitive secrets to Woodward?

He focuses closely on the case of Stephen Jin-Wood Kim whom the Obama Administration is prosecuting for leaking info on North Korea to Fox’s James Rosen.

Kim was indicted in August on charges he leaked classified information about North Korea’s nuclear intentions to James Rosen, a correspondent for FOX News.

Abbe Lowell, who got a couple of AIPAC officials cleared after threatening to show how they had only passed on information that people like Condi had already leaked to the press, is the lawyer asking this question.

Aside from the undercurrent, which seems to be asking why John Bolton’s buddies can’t politically leak information like Bolton used to when he was at State (and, implicitly, why AIPAC can’t leak information the President’s aides can), Isikoff is right.

But he misses the even bigger double standard (and of course doesn’t mention Dick Cheney’s orders to Scooter Libby to leak Valerie Plame’s identity to one of the designated reporters for these leaks, Judy Miller, which seems to be a notable example of this intentional leaking).

Less than a month ago, the Obama Administration told a judge they didn’t have to–couldn’t–tell a judge their basis for killing a US citizen. Instead, they invoked state secrets, claiming (among other things) they couldn’t even confirm or deny whether they had targeted Anwar al-Awlaki for assassination.

Yet this came after one after another Obama Administration official leaked the news that al-Awlaki had been targeted, and after they had obliquely confirmed that he was. The Administration can leak news of this targeting all it wants, apparently, but when a US citizen attempts to get protection under the law, then it becomes a state secret.

Now, Isikoff quotes some White House official denying that this kind of double standard exists.

Asked for comment, a White House official told NBC News: “The president is upset about the leak of any sensitive information to any pubic sources, and that includes sensitive information in the Woodward book. In fact, you’ll note that he explicitly refused to address classified matters with Mr. Woodward, even though he was asked about them.”

‘Unclassified gossip’

The official also disputed that the disclosures in the Woodward book might complicate the administration’s anti-leak crackdown. “Leaks are leaks and leaks of classified national security information are crimes. They are not less criminal because there are also leaks to Bob Woodward,” though the official contended that much of the “sensational” disclosures in Woodward’s book were “unclassified gossip about staff differences.”

As for claims of a double standard: the official stated: “There is no double standard. The administration opposes all leaks of classified information.” The official further said President Obama “certainly did not authorize” his aides to share share classified information with Woodward.

But (as Isikoff notes) DOJ is not investigating any of the intentional leaks in Woodward’s books, just as the Obama Administration went to some lengths to protect the Cheney and Bush transcripts that make it clear that they were ordering classified leaks for political gain.

You see, in addition to reserving the decision for itself of who gets prosecuted or not for fraud on courts and torture, the Administration is also arbitrarily choosing who gets prosecuted for leaks.