United States: In Defense Of The 'Deep State' And A Free Press

It has come as a great surprise to learn that most of my 45 years in Washington were not spent in honorable public service but, rather, as part of the "Deep State," an evil cabal whose mission is to resist many conservative ideas and undermine President Trump.

Those who conjured up the Deep State narrative have seen too many bad movies. Their contempt for career public servants is misinformed and dangerous.

We are a nation of laws, not men. We are bound together by the ideas enshrined in the Constitution, not by religion, ethnicity or allegiance to any given president. It is the institutions of government, and the men and women who work in them, who give life to our Constitution.

Career public servants will follow responsible political leadership. But they are also the ballast of the ship of state. They understand why presidents should not obstruct the fair administration of our laws, why intelligence cannot be politicized, and why America is secure only if it leads and maintains the international order established after World War II.

When they see the erosion of these core principles, what are they to do?

They can resign and speak their mind. If they choose to stay in government, they can write memos or speak to their bosses. Alternatively, they can go to Congress. But raising a dissenting voice within the government or with Congress can often be futile. In that case, an official may decide that leaking to the press is the most effective way to change a policy he or she regards as dangerous. The leaking official may even regard it as the most responsible course.

President Trump is right to be angry about leaks of truly classified information. Past leaks of intelligence sources and methods have caused irreparable harm and, in at least one case, the death of a human source of information on terrorist activity.

But we should not confuse national security leaks, which should be prosecuted, with leaks of policy differences or allegations of wrongdoing by whistle-blowers, which should be dealt with through administrative sanctions.

We must also be honest. Some leaks have changed our country in ways that, in retrospect, are positive. It seems fair to conclude that more good than harm came from Daniel Ellsberg's leak of the Pentagon Papers and former FBI agent Mark Felt's role as "Deep Throat" in the Watergate scandal. On the other hand, Edward Snowden's claim of a higher purpose has, in my view, no validity.

The recent announcement by Attorney General Jeff Sessions of a ramped-up effort to investigate and prosecute leaks is appropriate. But the FBI and the Department of Justice must not overreact and, in turn, create fear and distrust in the national security agencies. Doing so would chill the development and execution of sound policy in ways that could damage our democracy as much as the harm caused by leaks.

Here's why:

First, tighter compartmentalization of information is likely, which can lead to bad decisions. For example, the George W. Bush administration severely limited the number of people who were "read into" the "enhanced interrogation" program. They cut out the career lawyers in the Pentagon and State Department who were the government's experts on the law of armed conflict. As a result, many senior officials were not aware that the United State had long regarded waterboarding as torture.

Second, officials may be concerned that the FBI is monitoring their emails and telephone calls. Although this monitoring requires strict approvals, at least one recent FBI investigation of a senior career Foreign Service officer (which ultimately was dropped with no charges) has left many at State apprehensive about whether the FBI understands the role of diplomats. Fear that the FBI is looking over one's shoulder is chilling.

Third, exchanges between officials and the media will be severely constrained. Officials will be apprehensive that anything they say to journalists, even if authorized to do so "on background," could later be regarded as a "leak" and referred to Justice for investigation. I have seen that happen.

Fourth, current attorney general guidelines could be rewritten to make it easier to subpoena journalists. This is especially troubling to our principles of a free press and a free people. The current guidelines strike the right balance between security and the First Amendment. I see no reason to change them.

At a time when there is such concern about where the president is taking this country, the media play an absolutely critical role in keeping the nation informed. To date, nearly all of the "fake news" leaks that have so irritated President Trump have subsequently proven to be true.

The investigations of leaks must not turn the "Deep State" into a "Dark State."

It is a delicious irony to think that the hated "Deep State" and the detested media will save our democracy. Those who believe otherwise do not understand our country.

Originally published by Lawfare.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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