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Obama’s Classified Leaks Are Probably Not Prosecutable

June 13th, 2012 - 2:41 pm

In my post over the weekend about the folly of pushing for a special prosecutor on the Obama administration’s intelligence leaks to the New York Times, I argued that holding the president politically accountable is far more important than indicting the leakers; therefore, Congress should do its job and shine intense light on this scandal rather than abdicate to a criminal investigation — ultimately supervised by Obama and his attorney general — which would simply bury it. Among the points I made was that the criminal case is probably a loser anyway:

The lesson here — of far more political than legal significance — is that President Obama is a reckless custodian of the nation’s secrets. That is yet another good reason why it is so important to defeat him come November. The rest — who said what — is details. It’s the guy in the Oval Office who sets the tone. And that guy, by the way, is fully empowered to declassify whatever information he chooses to declassify, no matter how sensitive, no matter how damaging its disclosure. So if it turns out that Obama effectively approved the leaks, they are probably not actionable disclosures of classified information anyway.

John L. Martin, another longtime federal prosecutor — and one with unparalleled experience in espionage cases involving classified information — makes the same point. In his Newsmax column today, veteran reporter Ron Kessler cites Martin in making the point that “if Obama authorized or condoned the release, the information would no longer be technically classified and its release would not be considered a leak. Obama has not flatly denied that the information — classified or not — came from the White House or that he authorized or condoned its release.”

This hardly means that Martin absolves Obama — not politically. To the contrary, like most of us who have had to guard the nation’s secrets, and its methods and sources for gathering them, he is apoplectic. Ron’s column continues:

If Obama had not authorized or condoned the leaks, he would have immediately publicly denounced them and promptly ordered the Justice Department to conduct a criminal investigation, Martin says. Instead, he addressed the issue days after the stories provoked bipartisan outrage on the Hill, leading Attorney General Eric Holder Jr. to appoint two U.S. Attorneys to lead a probe of the leaks.

“A blameless leader would have publicly condemned the leaks immediately and instructed those in the executive branch, particularly on the president’s and vice president’s staff, to come forward with any knowledge, direct or indirect, about the source of the leaks,” Martin points out.

Martin finds it inconceivable that CIA operatives or other intelligence professionals would have leaked such information. “If you are in the intelligence community, you don’t put the lives of people who have helped you in danger,” Martin says. The fact that the leaks compromised live CIA assets and ongoing programs, and that the stories portrayed Obama in glowing terms, means they have “politics written all over them,” he says.

As their sources, some of the stories cite Obama’s national security team and individuals who were in meetings with Obama in the Situation Room. “No one knowing the sensitivity of all of this information in a series of stories would do it on his own,” Martin observes. “They would need approval from a higher up. The ultimate higher up and the ultimate beneficiary of the leaks is President Obama.” Says Martin, “My conclusion is that the leaks were done to enhance Obama’s standing on national security issues and that it was done with his knowledge and consent.”

It is easy, in our outrage over this sorry episode, to get swept up in the desire to see people who have acted irresponsibly get their comeuppance, but conservatives concerned about national security need to be consistent.

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