Comment: Obama's 'self-inflicted' scandal

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.

Right now, neither Obama nor Holder looks like an enlightened statesman. We are only in the early stages of the investigation, but already the warning sirens are blaring loudly. The attorney general now defends himself on the ground that the gravity of the leak required immediate "aggressive" action because of the security risks to the United States. The nature and sources of the potential leak are subject to much uncertainty to say the least. Current accounts about John Brennan, now CIA director, suggest that the CIA had the matter well in hand, through control of a double agent -- and it is far from clear whether any security breach could be attributable to the AP story, which did not speak of Western "control" over the matter but only that "it's not immediately clear what happened to the alleged bomber." But spurred on by this incident, the DOJ, as Holder notes, pored through reams of other information before making the decision to subpoena the AP's telephone records from the telephone companies.

Presumably, those deliberations relieve Holder of the charge of acting recklessly and alone. But they also raise other troublesome questions. First, there is the issue as to whether the DOJ should have followed standard protocol by notifying the AP with an eye to narrowing the inquiry into the leaks coming from the administration. Second, it gives pause as to whether the exhaustive investigation taken prior to the search of the AP connections itself was undertaken in accordance with accepted practices in the identifying of targets of interest and the collection of information. Third, Holder's statement as to the grave security risk to American lives still does not explain why he cast the net so broadly in this instance, or waited so long before making the entire affair public. Fourth, and most troublesome, it does not seem as though the decision to ransack the AP phone calls were reviewed by an independent magistrate or done pursuant to any kind of search warrant, which constitutionally seems to be very much in order. It would be hard for Holder to claim -- which indeed he did not -- that there were "exigent circumstances" that made it impossible to go before a magistrate for an investigation that lasted for the better part of two months, especially since it does not appear that DOJ sought a warrant before it issued its subpoenas. The requirements on FISA surveillance warrants are a lot tougher than this.

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Epstein is a professor of law at the New York University School of Law, a fellow at the Hoover Institution, and a professor emeritus of law and senior lecturer at the University of Chicago Law School. © Foreign Policy 2013