Some have argued that George W. Bush, Dick Cheney and David Addington, by claiming near-limitless executive branch authority, produced an ironic backlash from the courts, which for example in the case of Osama bin Laden’s driver, Salim Hamdan, codified limits on presidential power that might otherwise have remained undefined.
Goldsmith argues that something similar may be happening with Obama’s crackdown on leaks, and he points to the July 29 ruling by Judge Leonie Brinkema in the U.S. District Court for the Eastern District of Virginia:
The opinion is yet another setback for government leak investigations. When considered in combination with the Drake leak prosecution dénouement, the Obama administration’s unusually aggressive attempts to punish and deter leakers of classified information seem to be having the opposite effect by demonstrating to potential leakers more clearly than ever before how difficult it is in fact to punish them.
I’m not against government keeping secrets: on the contrary I think it’s necessary. But as I wrote last fall, the government keeps far too many, thereby devaluing the currency of secrecy and making it more likely that officials will leak.
The same can be said when the government goes overboard in prosecuting leakers.
For more on the Drake case, Steve Aftergood has a good summary of the court’s reaction to the administration’s treatment of NSA whistleblower Thomas Drake, in which he quotes the court saying the government’s treatment of him was “unconscionable.”