Epstein in Foreign Policy on White House Secrecy

Obama's Self-Inflicted Scandal
Richard A. Epstein
Foreign Policy
May 15, 2013

Forget Afghanistan, Syria, and the war or terror. Barack Obama's administration now finds itself embroiled in a three-front domestic war that threatens to undermine public confidence in the U.S. president's ability to lead the nation. The first of these, which has yet to quiet down, is the enormous dispute over the timeline involving acknowledgment of al Qaeda's involvement in the Sept. 11, 2012, attack on the U.S. Consulate in Benghazi, Libya. The second involves the recent revelation that the Internal Revenue Service (IRS) focused special scrutiny on applicants for tax-exempt status that sported Tea Party or other "small government" credentials. The last, and potentially most serious, is the recent revelations that Attorney General Eric Holder ordered extensive investigation into Associated Press (AP) reporters in April and May 2012.

Of these, the third is likely to cause the greatest grief for the president and strong calls for the resignation of Holder, who at latest report has already recused himself from a government investigation of massive snooping by the Department of Justice (DOJ) into key AP reporters in New York, Washington, and Hartford, Connecticut. On Benghazi, Obama has sought to defend himself on the ground that the supposed coverup never took place or that it was simply confusion due to incomplete information from a distant flash point, not political calculation in the heat of a tight election race. On the Tea Party investigation, he can distance himself from activities of high-level officials inside the IRS who fortunately, from his point of view, were not political appointees. But he has no such cover with respect to the AP investigation, where his own attorney general is on the line for going after journalists in ways that must be regarded as a deep and troublesome attack on the press, a secret Watergate-like affair that will send chills through the spines of media people everywhere.

Worse still, the source of the scandal goes to a foreign-policy area of great sensitivity. The president's credibility is on the line with respect to the use of drones in the war on terror and the administration's own garbled account of what counts as a "necessity" that justifies their secret deployment and the authorization of targeted killing. This has raised hackles not just among liberals and those concerned with executive privilege, but even among people like me who do not think that the nation benefits by having judges get involved in reviewing potential targets of attack. At this point, the two narratives run together. The very president who has pledged himself to the most open and transparent administration ever is now perceived on all sides of the political spectrum as a secretive soul who skulks about in the shadows, so sure of his own moral rectitude that he thinks that it is all right to ignore the procedural safeguards that the U.S. Constitution wisely puts in the path of less wise and omniscient presidents. Long ago, James Madison warned in Federalist No. 10 that the Constitution had to be rigged for bad times because it is in the nature of politics that "Enlightened statesmen will not always be at the helm." Madison's time has come.

Richard A. Epstein