Jack Goldsmith's Washington Post Op-ed echos (without credit) Michael Isikoff's recent piece by highlighting the double standard of Obama's position on leak prosecutions in light of the national security information revealed in Bob Woodward's new book, Obama's Wars.
However, Goldsmith's take misses in one major way with the argument that
if the giant disclosures of classified information have no legal consequences, they still harm national security by delegitimizing the presidential classification system.
Goldsmith overlooks that what delegitimizes the value of classified information is over-classifying volumes of information that have nothing to do with national security and everything to do with covering government misconduct, not the leaking of information within the public interest.
While Goldsmith does recognize that over-classification is a problem, his argument falls short because it is the over-classification, not the leaking, that undermines the classification system and endangers national security.
In his conclusion that high-level leaks undermine the classification system, Goldsmith fails to mention the case of Thomas Drake, which involves a leak that was clearly in national interest and clearly did no harm the United States. Whistleblowers now subjected to Obama's record-breaking war on leakers, such as Thomas Drake, protect national security by disclosing government wrongdoing.
Goldsmith's argument suggests that Obama's clamp down on leaks would be better if all leaks (including those in Woodward's book) were equally investigated and all leakers equally prosecuted. However, the double standard of Obama's position on leaks on is not faulty for letting high level leakers off the hook, but for prosecuting whistleblowers like Drake, Shamai Leibowitz (the FBI linguist sentenced to 20 months in prison for giving classified information to a blogger), Steven Jin-Woo Kim (the state department official accused of leaking North Korea's nuclear activities). As I noted when Isikoff released his piece:
Of course, the answer is not to prosecute all "leaks" but to clearly distinguish between leaking (when [George W] Bush officials revealed [Valerie] Plame's name) and whistleblowing (when Thomas Drake went through proper channels to disclose government waste).
Over-classification, in particular the classification of illegal or embarrassing government conduct - not leaking - is the real problem plaguing our classification system. And Obama's "war on leakers" undermines not just the classification system, but our entire democracy, by prosecuting whistleblowers who bring government wrongdoing to light.