The Time Is Now for a Special Counsel

By VICTORIA TOENSING
June 22, 2012
FOXNews.com

“[T]he writers of these articles [about the national security leaks] have all stated unequivocally that they didn’t come from this White House,” claimed President Obama in a statement overlooked in the wake of a press conference dominated by the presidential gaffe that the “private sector is doing fine.” The assertion that the reporters exonerated the White House as leakers is patently false. The New York Times reporters’ (David Sanger, and Jo Becker and Scott Shane, who revealed the Stuxnet and Kill List classified programs) written words belie the veracity of the president’s statement.

Take Sanger’s Stuxnet story. He attributed his information, in part, to “current and former American” officials who are nameless because “the effort remains highly classified….” Sanger specifically sourced: “members of the president’s national security team who were in the room”; “participants in the many Situation Room meetings on Olympic Games,” the code word for the classified software virus operation; two presidential “aides”; “[i]nternal Obama administrative estimates”; and “a senior administrative official.”

Sanger never “unequivocally” or otherwise disavowed White House personnel as sources. In a CNN interview, he did make one damning admission. The Times editors went to the White House with the Stuxnet story and no one ever said “not to publish,” a fact strongly supported by the White House’s failure to complain about the stories until the public and Congressional outcry.

Becker and Shane, in detailing how the president and his team select enemies for death by drone, cited President Obama’s words during a January 2010 meeting where only “two dozen security officials” were present, and attributed their sourcing to “three dozen of [President Obama’s] current and former advisers.” A “senior administration official” and an “official” who wanted anonymity because the program is still “classified” were specifically quoted. Significantly, both former White House Chief of Staff Bill Daley and present National Security Advisor Tom Donilon were named and quoted admitting the existence of and discussing this still classified program.

The Kill List reporters cited the number of strikes since April (20), the number of people who decide the targets (more than 100), and the countries where strikes took place (Yemen, Somalia, and Pakistan). They delved into a strained analysis of the Killing Deciders rationalizing taking out Baitullah Mehsud, the leader of the Pakistani Taliban, who initially did not fit the administration’s criterion for being drone targeted: “he was not an imminent threat to the United States.” But because Pakistan wanted Mehsud eradicated, the White House expanded its definition of “imminent threat” and killed both Mehsud and his wife. The man on the street did not provide these facts.

When I was Chairman. Barry Goldwater’s Chief Counsel for the Senate Intelligence Committee, he would rage whenever there was a security leak, e.g., mining Nicaraguan harbors. “Call the Justice Department and get them to investigate” he would command. Congressional frustration is understandable. While White House Staff is quoted—even by name—discussing highly classified programs in the context of enhancing the president’s image, Rep. Peter King (R., NY) must state before any public interview about Stuxnet he cannot reveal whether such a program exists because of classification rules. I used to remind Chairman Goldwater that what prevented a meaningful investigation was my “Rule of 248.” If 248 or more government personnel had access, it was impossible to find the leaker, not just because of the large number of FBI interviews but it was usually difficult to determine the universe of all who were privy to the leaked facts.

But such problems are not present here. Twenty-four persons in a meeting is easily investigated. Even the 100 Death Deciders is manageable; all the participants are recorded in White House records. Donilon and Daley are specifically named. FBI interviews followed by grand jury subpoenas is the usual investigative route.

The 1917 law criminalizing leaking classified information requires a lesser standard of intent for personnel who have authorized access. The leaker does not have to intend to harm the United States, only to have had “reason to believe” the information “could be used” to harm the U.S. or to benefit a foreign nation. If any member of the president’s national security team does not believe exposing details of Stuxnet or how we kill the enemy would fulfill either of those requirements, he or she should be fired.

The only fact that would undermine an investigation is if the president declassified the information or authorized specific persons to talk to the journalists. Like the Pardon authority, the president’s declassification authority is plenary. But Senior Adviser David Plouffe claimed Sunday the president had not done so. Yet, Plouffe also refused—repeatedly—to say whether President Obama, unlike President Bush during the Valerie Plame brouhaha, would submit to an interview or direct all White House staff to submit to interviews.

With hopes of kicking this nasty issue down the road past November, the White House appointed two U.S. Attorneys as Special Counsel. Rod Rosenstein and Ron Machen, a Republican and Democrat respectively, are both good men and honest prosecutors. But they must report to the Attorney General, who in turn is responsible to the White House. And what are the two U.S. Attorneys going to investigate? Not the drone leak, according to the Washington Post, because “such an investigation had not been requested.”

Let’s review the bidding. We have: 1) leaks of two sensitive and crucial classified national security programs; 2) no criminal investigation of one of them; 3) a demonstrably false presidential statement that the relevant reporters absolved White House staff as sources; 4) White House refusal to agree to order all personnel to be interviewed; 5) White House refusal to agree the president will submit to an interview; and 6) an investigation controlled by those who are being investigated.

A Congressional investigation lacks gravitas. The White House will stymie it, a la Fast and Furious and the 11th hour assertion of executive privilege. Moreover, the Republican controlled House’s platter is full with the Attorney General contempt issue. And the Democratically-controlled Senate will refuse. Besides, that horse has left the stable. The administration has initiated an investigation, albeit flawed. It is now time for that investigation to be complete and independent.

Victoria Toensing is a founding partner of the Washington law firm diGenova & Toensing. She has extensive experience in all three branches of government solving problems for individuals, corporations, trade associations and other organizations. She is an internationally-known expert on white collar crime, terrorism, national security and intelligence matters. In 1997, Toensing was named special counsel by the U.S. House of Representatives to probe the International Brotherhood of Teamsters.