As the controversy over the Department of Justice’s leak probe into the phone lines of Associated Press reporters grows, it’s important to separate legitimate concerns about the scope of the probe with the clear need for the investigation in the first place. Excessive freak-outs by those who liken the Obama administration’s behavior to Watergate fancifully ignore that the investigation was authorized by law as part of an inquiry into a serious crime. Congress could change the rules to prohibit any such infiltration of a media outlet, but that would require the Justice Department’s critics to actually delineate a line so sacrosanct that investigators can never cross it, no matter how damaging the leak. Attorney General Eric Holder’s foes are criticizing the AP search, but where would they draw the line?
I cannot judge the scope or depth of the investigation. It sounds like a lot of seizures, but without some comparative analysis, it isn’t clear whether DOJ started with a few and then expanded its inquiry to more lines as the investigation got bigger. I’m not bothered by claims that investigators picked up pizza orders or calls to friends; by their nature, investigations will pick up more information than is necessary. Under the rules, extraneous information is discarded.
The main reason why it’s important to distinguish criticisms of the scope of investigations from the existence of the investigation is because, unless we do, we risk forgetting why the Justice Department started the investigation in the first place. When the 2012 AP story first broke about an intelligence asset within a terrorist cell that was providing information about a pending plot, I wrote that the leak was jaw dropping. I do not think there is a single historical example of a news organization having and publishing specific and detailed information about a covert operation involving human intelligence. There still seems to be some question about whether the AP’s story led to the pulling of the asset, or whether his removal was already planned, but Britain, which helped coordinate the spy, seems to think the former.
When the story broke, I urged an independent investigation. Ironically, so did Republicans who thought Obama was just trying to strut his stuff by disclosing how cool his counterterrorism efforts were. It is clear, however, that the leak was unauthorized and damaging. I believed then, as I still do now, that the leak must have been some consequence of a fight between the CIA and DOD over who gets control over covert operations; at the time of the disclosure, and to a certain extent now, the bureaucratic fighting continues over this next phase of counterterrorism operations.
The leak may have represented a very dangerous attempt by someone inside the intelligence community to get credit for his agency. He or she may also have leaked it to counter the Obama administration’s claims that there was no heightened security threat at the time of the anniversary of Osama bin Laden’s death.
Nonetheless, the leak wasn’t just an inside-the-Beltway jab at political enemies, and the story that resulted wasn’t about infighting in the national security staff. The information cut to the heart of how America fights its enemies and the resources it uses to do so. An agent of ours had infiltrated a terrorist cell. He is no longer in the inner circle. The leaker may be to blame. And the investigation that has everyone up in arms was completely justified.
Debate the scope of the search? Fine. But let’s not doubt the need for the search itself.
Juliette Kayyem is a Globe columnist. She was assistant secretary of homeland security in the Obama Administration. Follow her on Twitter @juliettekayyem.
Correction: An earlier version of this column incorrectly characterized the Justice Department’s investigation as involving wiretaps. The column has been corrected to remove mention of wiretaps.