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Obama Won't Be the Last Wartime President to Break the Rules Obama Won't Be the Last Wartime President to Break the Rules

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Obama Won't Be the Last Wartime President to Break the Rules

Obama is just the latest commander-in-chief to step over the line in the name of national security.

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(AP Photos)

Journalists seem shocked that this administration, which Barack Obama once promised would be the most transparent in history, has been spying on some of their own. But they shouldn’t be. Obama is only the latest president to follow what might be called the "ask forgiveness, not permission" model of handling heightened threats.

Throughout American history, wartime presidents have taken extraordinary measures in the name of national security, hoping they'll be judged on their results rather than the tactics they used to get them. Abraham Lincoln suspended habeas corpus. Franklin Roosevelt put Japanese-Americans in internment camps. George W. Bush waterboarded detainees. Obama killed U.S. citizens in drone strikes. Both Bush and Obama collected massive amounts of data on millions of phone accounts.

 

But we remember that the North won the Civil War, that the Japanese surrendered. And maybe someday, what we’ll remember about this period is that al-Qaida didn't strike on U.S. soil again after 9/11.

Veterans of the Bush administration say Obama’s overreach was inevitable, as is his stated intent in his second term to ratchet back some tactics, disclose more (often due to leaks), consult with Congress, and set guidelines for his successors.

Stephen Hadley thinks back to the days after 9/11 and the urgency of the moment, captured in a question congressional investigators asked him: "How could you have let this happen?" 

 

"It certainly affects you," the former Bush national security adviser told me in an interview. "We struggled. The Obama administration is struggling. You do the best you can. It's very hard when you're under a lot of pressure."

Hadley says that pressure weighed on him and his colleagues as they tried to balance the colliding imperatives of protecting the country and informing it. Ultimately, he says, they followed the same path as their successor: Do what you think you have to do now, put off explanations until later, and hope for the best.

That is how we ended up with very belated disclosure of, among other things, waterboarding and warrantless surveillance of calls and e-mails involving a party within the United States. Neither was revealed by choice, but Hadley and others suggest they did not expect them to remain secret forever.

"The question was one of timing," Hadley says. "The current administration has the same issue. They kept a lot of things secret—memos in connection with the drone program and the like. They are now in the second term beginning to make the same judgment we did. Now is the time to bring these things out, have a public discussion, have some legislation, so those tools are enshrined and available.… You're seeing them make the same pivot we made."

 

Tommy Vietor, a national security spokesman for Obama in his first term, rejected that idea, saying there has been "an evolution over the last decade over how much and how often the administration talks about the use of certain tools." In the case of drones, once they started hitting targets, he said, people figured out we had the technology, then-national security adviser John Brennan mentioned it occasionally in speeches, and it bubbled up into the national conversation.

Still, drones didn't really emerge as a major controversy until Obama's second term, when Sen. Rand Paul, R-Ky., filibustered over rules for targeting U.S. citizens and Congress demanded legal documents governing the use of drones. So Obama's calculation on drone warfare—step it up first, write public rules later—fits Hadley's frame.

So does the Justice Department decision to aggressively investigate leaks and worry about the consequences later. How else to explain why Justice labeled Fox News reporter James Rosen a coconspirator, even if it was just to get access to his communications, or why the agency secretly subpoenaed Associated Press phone records despite guidelines for notification, and collected so many records that House Intelligence Committee Chairman Mike Rogers called it a constitutionally questionable “dragnet approach.”

"The Department of Justice is not politically naïve," former Bush press secretary Ari Fleischer told me. "When they authorized the search of the AP phone records and James Rosen's records, they knew there would be a media blowup if and when they became public." Fleischer said the department went ahead anyway because it considered its objective—protecting national secrets and, in the AP case about the disruption of a Yemeni terror plot, possibly a double agent—more important. He added: "Reporters think that the First Amendment trumps all other parts of the Constitution. It doesn't."

It is the nature and right of journalists to try to ferret out whatever an administration is trying to hide, and sometimes there's little justification for certain information to be classified. Sarah Chayes, a former NPR reporter and Pentagon aide, agrees that plenty of "classified" designations are unwarranted. Still, she is concerned about indiscriminate media "trawling" for leaks. She writes in The Washington Post that reporters often asked her for classified information "blithely, unfazed, without an apparent thought for the implications."

Those implications are hardly limited to investigations of leaks by people who have pledged to obey the law against disclosing government secrets. The lives of troops, spies, and diplomats can be at stake, not to mention Americans at risk of terrorist attack. Then there is the question of whether the news value outweighs the damage to intelligence-gathering. Did we need to know, as Rosen's reporting revealed, that the United States has sources within the North Korean government? Wouldn't it be more appropriate to get officials to leak about wrongdoing at the Internal Revenue Service or some other agency?

Hadley, the former Bush official, argues that 9/11 was a game-changer on the secrecy front because the country was under "active attack" and U.S. authorities did not know as much as they needed to about al-Qaida. Secrecy has continued to be a paramount value in the Obama administration despite Obama's pledge to run an open and transparent presidency.

My team, the media team, is understandably angry about the leak investigations. Even Obama and Attorney General Eric Holder now say Justice went too far and should adopt stricter, more explicit guidelines. But that has only happened since public debate erupted over the AP and Fox incidents, and guidelines are only guidelines, after all. What will really be shocking is if a future administration perceives an extraordinary threat and plays by ordinary rules.

 

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