Arguably the most prescient comment in American political history is the perhaps apocryphal response from Benjamin Franklin, one of our Founding Fathers, to the passer-by who asked him in Philadelphia, in 1787, what kind of government the Founders had designed for the United States of America: “A Republic, madam, if you can keep it.”
Through two centuries of ratification debate, amendment and judicial interpretation, the Constitution itself has stood up remarkably well. Yet nearly every day in every way in the 226 years since its creation, the strength and resilience of the Constitution have been tested.
Lord Acton famously observed that power tends to corrupt and absolute power corrupts absolutely. Over the past two-and-a-quarter centuries, the powers invested in each branch of government — and the power that officeholders seek and assume to themselves— have wreaked havoc on the rights of the people in whose name the Constitution was adopted.
Nowhere is this more evident than in the troubling growth of the executive branch’s interest in operating in secrecy.
Compare and contrast just two recent cases, both coincidentally involving sex and secrets. In one case, the executive branch has gone to unprecedented lengths to discover who “leaked” certain information of public interest; in the other case, the government refuses to disclose who within the government “leaked” personal and private information to the media.
The first case is that of 55-year-old bomb expert Donald Sachtleben of Carmel, Ind., who — according to the Sept. 24 New York Times and other sources — recently agreed to accept a nearly 12-year federal prison sentence after being accused as the source for a May 7, 2012, Associated Press report on a foiled overseas terrorist bomb plot.
Americans now know that in April 2012 a successful U.S. intelligence operation had disrupted an al-Qaida plot in the Arabian Peninsula to destroy an airliner by using an underwear bomb purportedly designed by Ibrahim al-Asiri. Acting on a leak provided by former FBI agent Sachtleben, the AP broke the news in May 2012 before the White House had a chance to do so, thereby potentially depriving an incumbent president from maximizing its political value in a re-election year.
Some 40 years ago, then-FBI Associate Director Mark Felt (later nicknamed “Deep Throat”) spoon-fed details of an FBI investigation of the White House to two young Washington Post reporters, Bob Woodward and Carl Bernstein, who were able to keep Felt’s identity a secret until after his death some 30 years later.
But in Sachtleben’s case, the FBI interviewed more than 500 officials while the Justice Department secretly subpoenaed calling records associated with 20 telephone lines of the AP or its reporters in an effort to uncover the man (Sachtleben) whom the AP still refuses to confirm as its source.
In what The Times characterizes as a “bizarre coincidence,” the government then “discovered” that other “law enforcement officials” had already conveniently seized Sachtleben’s computer, cellphone and electronic media in connection with a purportedly unrelated child pornography investigation, making their task that much easier.
Caught between the hammer of the national security charges and the anvil of a child pornography prosecution, Sachtleben reportedly agreed to a 140-month plea agreement, the heaviest yet imposed on a civilian “leaker.”
Meanwhile, on the other side of the personal privacy/government secrecy coin, the Justice Department currently seeks to dismiss a lawsuit by Jill Kelley, the woman whose report to the FBI of “harassing e-mails” from Paula Broadwell, the biographer of former Army Gen. David Petraeus, ultimately led to the ouster of Petraeus as CIA director and of fellow Gen. John Allen as top U.S. commander in Afghanistan.
Kelley and her husband, a co-plaintiff, seek to find out who in the government leaked Kelley’s name and e-mails to the media in violation of the Privacy Act, a post-Watergate “reform” law, thereby placing Kelley in the role of villainess in the downfall of Gens. Petraeus and Allen.
The government seeks to dismiss the lawsuit on the grounds that the Privacy Act does not apply to the FBI and the Defense Department whenever they opt out and that the Kelleys’ complaint fails to plead that the leaked information was kept in a records system subject to the act’s requirements.
The Framers rightly recognized that rulers, even in a constitutional republic, would quickly abuse their power if not checked. Two of the most important checks imposed were noninterference with freedom of the press and requiring that those who made the laws should also live under them.
It’s a worrisome sign that 40 years after Watergate, the executive branch still argues that the laws that apply to the people do not apply to it and that freedom of the press is no longer so highly prized.
It’s a sobering thought that, according to The Times, the executive branch has brought eight leak-related prosecutions in the past five years compared to only three under our Constitution’s previous 221.
[First published in the Chicago Daily Law Bulletin and reprinted by permission of the author.]