Double Standard on Leaking Secret Government Information
Late last month, in his drive to hold Attorney General Eric Holder in contempt over Operation Fast and Furious, Rep. Darrell Issa (R-CA) inserted material from a sealed wiretap warrant application into the Congressional Record. Information contained in such applications cannot be released absent a court’s permission, and those who violate the law can be held in contempt. But by placing the information in the Congressional Record – rather than directly releasing it to journalists – Rep. Issa shielded his otherwise illegal conduct behind the Constitution’s Speech or Debate Clause.
After my organization, Citizens for Responsibility and Ethics in Washington, filed complaints with the Justice Department and Office of Congressional Ethics, Rep. Issa’s office offered a sadly predictable response. Rather than address the evidence that he violated federal law and House ethics rules, his spokesperson attacked CREW’s credibility, accusing CREW of being complicit in what he termed a government cover-up.
In other words, in Rep. Issa’s view, revealing secret government information is justifiable in support of a good cause.
But Rep. Issa espoused a diametrically different opinion when Wikileaks released thousands of secret government cables related to the wars in Afghanistan and Iraq. In fact, he blasted the anti-secrecy group and suggested the attorney general resign because he hadn’t acted aggressively enough to prosecute the leakers.
It’s a perfect example of the double standard that seems to permeate every corner of Washington these days. One person who leaks secret information is called a criminal, while another who engages in similar conduct – but in support of a different cause – is lauded. In reality, both leakers broke the law to further a political agenda.
CREW strongly criticized Wikileaks for divulging classified information, a stance some claimed was inconsistent with our commitment to an open government, the same argument Rep. Issa leveled against us here. But CREW’s view has remained the same. If the government is improperly withholding information from the public, there are legal avenues of redress; simply ignoring the law and disclosing the information is not an option. Otherwise, why should anyone feel bound by laws prohibiting disclosure?
For a moment, forget about Operation Fast and Furious, Wikileaks, or any particular case. There’s a larger principle at stake: What good are laws protecting secret government information if we don’t enforce them across the board? No one has the right to circumvent or ignore non-disclosure laws at will.
That said, it would be wrong to draw any sort of comparison between Rep. Issa and any lone whistleblower. Those who leak secret government information risk prosecution for their actions. Former NSA official Thomas Drake spent 4 ½ years defending against outrageous and overly zealous leak charges and faced life imprisonment before he ultimately pleaded to a minor misdemeanor for exceeding authorized use of a government computer.
Rep. Issa, on the other hand, knew what he was doing was against the law and found a cunning way to publicize the material included in the warrant application without putting himself in legal jeopardy. Not exactly a profile in courage.
Poll after poll shows the public is disgusted with Washington and Congress in particular. Nothing better explains Americans’ derisive view of elected officials than a member of Congress who does an end run around the law, and uses his position to shield himself from the consequences.
The Speech or Debate Clause of the Constitution was designed to protect members of Congress from legal retribution for conducting their official duties. It was not intended to serve a “Get Out of Contempt Free” card, allowing members to willfully subvert the law to further their own political aims. Surely, we can all agree such abuse of the protections afforded members of Congress should not be allowed to stand.
The House of Representatives must demonstrate it will not tolerate this behavior by holding Rep. Issa accountable for conduct that reflects discreditably upon the House. If we want to crack down on those who evade our laws, let’s start with the people who are sworn to uphold them.