Obama’s pregnant ‘denials’

Jan LaRue Senior Legal Analyst, American Civil Rights Union
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President Obama is offended by accusations that the White House authorized leaks of highly classified national security information detailed in Confront and Conceal, a new book by David Sanger of The New York Times. Obama hasn’t denied that leaks occurred.

“The notion that my White House would purposely release classified national security information is offensive. It’s wrong,” he said during Friday’s press conference.

Media usually call it a “non-denial denial.” The law calls it a “negative pregnant”: a denial of an allegation in which a person actually admits more than he/she denies by denying only a part of the alleged fact.

Does Obama mean that the “notion” is “wrong” because it’s “offensive,” or that it’s wrong because it didn’t happen?

How does he know apart from an independent investigation of everybody in the White House that has access to classified information? What does he mean by “my White House”? Does it include more than him?

Why isn’t he offended if leaks occurred? If they did, why didn’t he promise that whoever is responsible will be prosecuted to the fullest extent of the law?

Outrage over leaks goes back to the Osama bin Laden raid. “Shut the f— up,” is how Robert Gates, former defense secretary, described his “new strategic communications approach” to Tom Donilon, Obama’s national security adviser, after the White House disclosed specific details about the raid, according to Sanger’s book.

The controversy heated up on June 2 when Sen. John McCain (R-Ariz.), chairman of the Senate Armed Services Committee, took to the Senate floor to express outrage at leaks detailed in Sanger’s New York Times article. McCain said the leaks were made to make the president “look good”:

In the latest of the recently published articles, published on June 1, 2012, The New York Times documented in rich detail the president’s secret decision to accelerate cyber-attacks on Iran’s nuclear enrichment facilities with the computer virus that came to be known as Stuxnet. The author of the article, David Sanger, clearly states that former and current American officials spoke to him, but refused to do so on the record because the program is both highly classified and parts of it are ongoing. …

Other recent articles divulged critical and classified information regarding U.S. plans to expand the secret drone campaign against terrorists in Yemen and the Horn of Africa. …

Finally, there was the recent article about the so-called “kill list” — the highly classified or sensitive list of counterterrorism targets against whom the president had authorized lethal action. It was even reported in that article — on May 29, 2012 in The New York Times — that David Axelrod, the president’s chief political advisor, began attending the meetings in which this list was discussed. I find that interesting considering that the only conceivable motive for such damaging and compromising leaks of classified information is that it makes the president look good.

At the June 4 press conference, White House Press Secretary James Carney denied that the Stuxnet leak was “authorized.” Carney also denied that leaks were for “political gain” when asked about the accusations aboard Air Force One on June 6, calling McCain’s characterization “grossly irresponsible”:

McCain returned fire at Carney’s “grossly irresponsible” criticism:

It is difficult to escape the conclusion that these recent leaks of highly classified information, all of which have the effect of making the president look strong and decisive on national security in the middle of his re-election campaign, have a deeper political motivation.

On June 7, Carney again denied that the leaks were for “political purposes.” He also said that Obama will not appoint an independent counsel to investigate the leaks.

It sounds like Carney could teach a guy a thing or two or three about making pregnant denials.

Sen. Saxby Chambliss (R-Ga.), vice chairman of the Senate Intelligence Committee, also denounced the leaks as a way to “bolster the Democratic president’s national security credentials ahead of the November presidential election,” according to the Chicago Tribune. Chambliss has joined McCain’s call for a special prosecutor.

The chorus of voices calling on Obama to appoint a special counsel is growing louder, according to Scott Shane of The New York Times:

Calls for a special counsel to investigate leaks of classified information by Obama administration officials gathered momentum on Thursday after the Justice Department’s national security division partly recused itself from the inquiry, apparently because of the possibility that the department might have been a source of some of the disclosures.

As Shane reminded us:

During President George W. Bush’s administration, Patrick J. Fitzgerald, a veteran prosecutor and now the United States attorney in Chicago, was appointed [special counsel] to investigate the disclosure that Valerie Plame Wilson was an undercover C.I.A. officer. That inquiry eventually led to the conviction of an aide to Vice President Dick Cheney for perjury.

Instead of complying with the special counsel requests, Attorney General Eric Holder announced late Friday that he has “assigned U.S. Attorney for the District of Columbia Ronald C. Machen Jr. and U.S. Attorney for the District of Maryland Rod J. Rosenstein to lead criminal investigations into recent instances of possible unauthorized disclosures of classified information.” Because Holder didn’t appoint them as special counsels, they don’t have plenary authority in the matter as Fitzgerald had in the far less serious Plame investigation.

Imagine the outrage and repercussions directed at George W. Bush by Democrats and the media if his attorney general had refused to appoint Fitzgerald as special counsel.

Since the Justice Department’s national security division has “partly recused itself from the inquiry,” will Holder stonewall an investigation of the division by Machen and Rosenstein? And how about Obama’s White House?

The potential for pregnant denials is boundless.

Jan LaRue is a senior legal analyst with the American Civil Rights Union.