President Barack Obama, in his May 26, 2013 speech, has made a nice policy pivot away from the Bush/Cheney philosophy on the war against terrorists, albeit for many of his supporters it has taken an extremely long time for him to do so. Yet to the surprise of many, including yours truly, President Obama still fully embraces an only slightly modified Bush/Cheney viewpoint on dealing with leaks of national security information. And that Obama position is somewhat striking, since such thinking can be traced directly to Richard Nixon’s infamous plumbers.. If Nixon had been able to have his way, he would have jailed both those in government who leaked national security information and those journalists who published such information. If you are unfamiliar with Nixon’s “plumbers,” allow me to begin by sharing the little-known story of the origin of their notorious undertaking, as well as a bit of the recent history of our country’s rejection of the equivalent to the UK’s Official Secrets Act, a law making it a serious crime to leak or publish any and all classified government information. This background is necessary to place the actions of the Obama Administration, which I believe I understand, in perspective.. Nixon’s Plumbers. Leaks of national security information began almost immediately for the Nixon Administration. The leakers, deeply buried within the national security structure, sought to do to Nixon what they had effectively done to his predecessor, President Lyndon Johnson: influence his policy by leaking sensitive national security information to newspeople so as to limit or preclude the president’s options. Setting aside the motives of the leakers, suffice it to say the country was at war in Vietnam and these leaks made it very difficult for the president(s) in that era to govern effectively.. To deal with the ever-increasing leaks, President Nixon requested his Department of Justice and the FBI to investigate, and, if appropriate, prosecute the leakers. But nothing happened: No leakers were ever uncovered, and the leaks continued on and on, until they soon reached something of a deluge.. That happened on the weekend of June 12-13, 1971, which was when the president’s youngest daughter was married at the White House. On Sunday morning, after the wedding festivities, the president went to the Oval Office to read the New York Times coverage of the wedding, but discovered that, instead, the front page was dominated by a strikingly bold banner headline and related story: “Vietnam Archive: Pentagon Study Traces 3 Decades Of Growing U.S. Involvement.” By the second paragraph of the piece, the president undoubtedly realized that no less than 7000 pages of classified national security information had been leaked to the Times. The Pentagon Papers leak was massive.. To make a long and unpleasant story very brief, when the FBI could not get its act together to pursue the leakers of the Pentagon Papers, an angry president decided to created a super-secret Special Investigations Unit within the White House, using his staffers, who would oversee the activities of all the agencies who, by law, had responsibilities to deal with such leaks. This unit reported to senior presidential aide John Ehrlichman, who in turn reported to the president the failure of anyone in the executive branch to assist in uncovering the leaks they were investigating, or in taking actions they felt were needed. If necessary, the president would personally intervene to get the job done, using the full weight of his office.. David Young, an attorney and former aide to Henry Kissinger, was assigned to the new unit. When David went home for Thanksgiving that Fall, his grandmother asked him what he was doing at the White House. David said, “Oh, I am helping the president find and fix leaks.” To which his grandmother responded, “Well, David, that is very nice, you’ve become a plumber.” When David shared this Thanksgiving story with his colleagues in the Special Investigation Unit, they cracked up, and he could not resist breaking their secrecy protocol by placing a sign on the unmarked basement door of their unit that read: “The Plumbers.” While the sign was not there for long, the name stuck.. I learned of the Plumbers’ unit after the Watergate break-in, when former plumber Gordon Liddy told me that he and former plumber Howard Hunt had planned and executed the break-in at the Democratic National Committee offices at the Watergate complex. Liddy also advised me that two of the men who were arrested at the DNC were former plumbers who had been involved in a “national security” operation to break into the offices of the psychiatrist who was treating Daniel Ellsberg, the man who had leaked the Pentagon Papers to the Times. The Plumbers were operational for about three months; then, Ehrlichman closed them down before Liddy and Hunt could cause more problems than they had in their first 90 days.. If any good came from their pursuit of leaks, and efforts to prosecute leakers, it has escaped the annals of history. To the contrary, the activities at the Plumbers Unit—which ran from dubious polygraph testing to an illegal break-in—led directly to Watergate and its related cover-up (with the White House covering up what the plumbers had done), not to mention the ultimate demise of the Nixon presidency. For this reason, Nixon’s handling of national security news leaks is not exactly a model that other presidents have followed. Yet, remarkably, his approach has appealed to several of his leak-frustrated successors at the White House.. The Nixon Leak-Fixing Legacy.. Richard Nixon fumed when national security information was leaked. He ordered wiretaps on newsmen, and while he did not order the break-in at Daniel Ellsberg’s psychiatrist office, he later said that if he had been asked, he would have approved it. But he did order—and thinking it was the suggestion of another staffer, I stopped—a break-in at the Brookings Institute in Washington, DC, to retrieve national security information that they believed had been stolen from the government.. There was a pattern to Nixon’s reactions to such leaks: He would act first, and raise questions later. Usually, when the answers arrived, it was learned that the leak of classified national security information had not caused any problem whatsoever, and in many instances no real national security secrets were involved, notwithstanding Top Secret classification. For example, there was no information about Daniel Ellsberg in his psychiatrist’s office; there were no national security documents in the Brookings Institute; and the Pentagon Papers information was over-classified and not one document among those papers had caused a problem. (Ellsberg had removed all material that related to sources and methods, or other secrets, that might cause a problem.). Realizing that much national-security information was improperly classified, when Ehrlichman closed down the covert operations of the plumbers, he suggested, and the president agreed, that they should pursue a related project of revamping the system of classifying and protecting national security information. Nixon had always admired the British Official Secrets Act, which enables the government to prosecute journalists, not to mention government employees who leak official secrets.. [ David Young morphed the Plumbers Unit’s focus from not only investigating and prosecuting leaks but also revamping the system for classification of national security information, and developing a new law to deal with protecting classified information. The president created an Interagency Classification Review Committee and appointed former President Dwight Eisenhower’s son John, a highly decorated and retired Army officer who had served as Nixon’s ambassador to Belgium—as Chairman. Young was in charge of the Committee’s day-to-day work.. President Nixon met with this committee from time to time. For example, on August 3, 1972, he visited with Young and Ambassador Eisenhower to discuss their work. During the course of the secretly-recorded conversation (Conversation No. 760-10 @00:24:47), David Young mentioned the UK’s Official Secrets Act, and the fact that it had been under review, which prompted to Nixon make the point that given the fact that the Brits had no First Amendment, Americans could not directly imitate their law, but, nonetheless, he instructed Eisenhower and Young that he wanted an equivalent, if not stronger, law, giving a president the ability to prosecute a journalist who published national-security information. He requested that they have a proposal ready for him to send to Congress after the November 7, 1972 election. But this story must end here. Because of Watergate, no such law was passed. To the contrary, Nixon’s pursuit of leaks, and journalist who published them, ended in ignominy.. When Nixon resigned, the over-the-top pursuit of national security leaks ended, removing a chill on national security and foreign-affairs reporting in Washington. This did not result in a new flood of leaks. To the contrary, after Nixon, the number of national- security leaks seemed to be fewer and far between. In fact, until President Ronald Reagan arrived in the Oval Office, no president was inclined to go after leakers or journalists, and President Clinton pardoned a journalist/leaker that Reagan had successfully prosecuted. Clinton also vetoed the attempt by Congress to pass an American equivalent to the Official Secrets Act. But the Bush/Cheney Administration, and now, the Obama/Biden Administration, recruited their own teams of plumbers to go after leakers and journalists. Bush/Cheney took a very Nixonian approach. President Obama, while clearly and wisely eschewing the Nixonian style, has been far more aggressive than all his predecessors in prosecuting leakers. This has been troubling to those of us who want more, rather than less, government transparency. I believe I understand why this has happened, and I will explain both what has happened and why in Part II of this series of columns, which will appear here on Justia’s Verdict on June 14.. John W. Dean, a Justia columnist, is a former counsel to the president..
About Martin E. Regan, Jr.
Year after year, Martin E. Regan Jr., the firm’s senior partner, has dedicated tireless efforts on behalf of the accused and produce wins for clients that a less determined advocate would have thought hopeless. Martin E. Regan Jr.’s ability to tackle and win tough criminal cases has resulted in verdicts of acquittal in many highly publicized trials.