Rat Patrol

By Kevin D. Williamson

Sunday, June 13, 2021

 

And now Adam Schiff has his nose out of joint about politically charged surveillance.

 

Welcome to the party, congressman.

 

The New York Times has reported that the Trump administration, in the persons of Attorneys General Jeff Sessions and Bill Barr, took some unusual steps in an investigation into leaks of classified material, obtaining telephone metadata for Representative Schiff (D., Calif.) and several of his aides and family members, including a minor, and securing a gag order to prevent providers from tipping off the targets of the surveillance.

 

Rat patrol is always an ugly chore in Washington, and it is almost always infused with politics — short of cases of outright espionage, leaks of classified and confidential information generally are undertaken for political purposes. That means that surveillance — including proper surveillance undertaken with the purest of intentions — often will involve an administration’s political rivals or its media critics. The Obama administration seized telephone records from the Associated Press and spied vigorously on James Rosen of Fox News. And Representative Schiff dug up — and then published — the phone records of Donald Trump’s circle of advisers as part of his investigation into the Ukraine matter. “Schiff’s surveillance state,” the Wall Street Journal called it.

 

Leaking classified or confidential information is a serious business — or it should be. The problem is that Washington classifies so much information so routinely that nobody takes circulating it very seriously — until it hurts somebody who matters. Every journalist of any consequence in Washington sees classified information from time to time. The laws involving classified-information leaks are a lot like the longstanding laws against marijuana: Leaking is so ubiquitous that people sometimes forget that it is, at least in some circumstances, a crime. (The fact that Mitt Romney is practically the only man in government who hasn’t blazed the occasional hoober is one of the things that has made marijuana decriminalization less difficult than it might have been.) In situations where almost everybody is a criminal, at least on paper, prosecutorial discretion is a fearsome weapon.

 

Sessions and Barr performed their work as attorneys general with varying degrees of servility — if neither assumed precisely the elbows-and-knees posture of the full-bore Trump sycophant, neither presented a profile in courage. But the initial New York Times report omitted an important aspect of the story: The attorney general does not have the power to order such surveillance or issue a gag order on his own; a federal judge or grand jury has to sign off on that. That is not a perfect process, but there is as of now no hard reason to believe that either the court or the administration behaved improperly in this case.

 

No reason other than the history and character of the Trump administration, anyway. Because prosecutors enjoy such extraordinary power in our system of government, it matters a great deal what sort of men and women hold such positions, and especially the position of attorney general. If this had happened under the watch of Michael Mukasey, it would be a very different conversation. The problem with electing and appointing untrustworthy people to high office is not one of conscience exclusively but also a practical difficulty: It gums up the works. Trust is the oil that enables the machinery of self-government to function. A free society cannot do without it.

 

The republican in me doesn’t like the smell of state secrets — too much odor of the king’s privy council. But that is sentimentality. A modern state — even one of the most liberal and open sort — must keep certain secrets. But to earn the right to be trusted with secrets, a state must pass two tests: 1. Is the state capable of deciding, honestly and in the public interest, what must of necessity be kept secret? 2. Is the state in fact capable of keeping its necessary secrets?

 

Our government does not have a very good record on either score. The power to declare information secret is used wantonly and willy-nilly in Washington, throughout government and by members of both parties. And our government fails to keep secrets great and small, its security protocols having been easily defeated by such nobodies as subcontractor Edward Snowden and the spy known at the time as Private First Class Bradley Manning.

 

Some secrets our government can’t keep, and some it doesn’t want to: The Internal Revenue Service not long ago was obliged to pay a settlement to a conservative nonprofit organization for leaking its private tax information, and that big ProPublica story last week detailing the taxes paid by Jeff Bezos and other billionaires was based on private information that was improperly shared with journalists. This is institutional lawbreaking by a rogue federal agency with truly fearsome investigatory and prosecutorial powers of its own, which should terrify ordinary people — if they can do it to Bezos, the wealthiest man in the world, they can sure as hell do it to you, citizen.

 

The illegal disclosure of protected information should be treated as the serious lawbreaking it is, even though that positively guarantees that there will be many investigations undertaken that come with political entanglements.

 

But our government might mind its secrets better if it had fewer of them to keep up with.