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Posted by on Dec 31, 2005 in At TMV | 24 comments

Justice Department Investigates NSA Spying Leak

The Justice Department has opened an investigation into who leaked what is being billed as highly classified information about a top-secret National Security Agency program that President George W. Bush used to do warrantless domestic spying.

Brace yourself now for a slew of issues and recriminations to swirl around this issue such as:

  • The specific legality or lack of it to do the wiretaps. What do the laws specifically say? What was implied and in what law and what do experts say about that?
  • Comparisons between the administration’s energy and attitude in going after this leaker versus the Plamegate case and the administration’s attitude towards that — and whether drawing comparisons is apples and oranges or involves the same fundamental issue.
  • Growing concerns over whether prosecutors will again threaten some journalists with jail if they don’t cooperate in this probe, how news outlet top management will respond to legal threats, and the impact of all of this on use of this info in the future.
  • Partisans digging in their heels to also take the position their party bigwigs take.
  • Americans who are genuinely concerned by the conflict between the need for top-notch national security with the need to protect at all costs cherished civil liberties. The not-so-nice bottom line question not usually voiced in public is: are we in a new era where the risk of the government NOT pulling out all stops to keep tabs on terrorists constantly re-evaluating their own ways to get info out and kill should outweigh protections designed in less brutally perilous times? Or given the polarizing, partisan nature of a political-base-oriented Bush administration that has credibility problems is that too big a risk?
  • A push for Congressional hearings on this whole issue and the administration’s policy, particularly if the government is aggressively seeking to find who gave the info to the press.

The New York Times reports:

The investigation apparently began in recent days following a formal referral from the agency regarding the leak, federal officials said on condition of anonymity.

The program, whose existence was revealed in an article in The New York Times on Dec. 16, has provoked sharp criticism from civil liberties groups, some members of Congress and some former intelligence officials who believe it circumvents the law governing national security eavesdropping.

President Bush and Attorney General Alberto R. Gonzales have vigorously defended the program as a legal, critical defense against terrorism that has helped prevent attacks in the United States. They say the president’s executive order authorizing the program is constitutional as part of his powers as commander in chief and under the resolution passed by Congress days after the Sept. 11, 2001, attacks authorizing the use of force against terrorists.

Trent Duffy, a White House spokesman, told reporters in Crawford, Tex., where the president is on vacation, that Mr. Bush did not request the investigation.

“The leaking of classified information is a serious issue,” Mr. Duffy said. “The fact is that Al Qaeda’s playbook is not printed on Page One, and when America’s is, it has serious ramifications.”

Remember that reports indicate GWB warned the Times that he felt publishing this material would hurt national security. The paper clearly concluded differently. The AP adds this:

“It’s pretty stunning that, rather than focus on whether the president broke his oath of office and broke federal law, they are going after the whistleblowers,” said Anthony D. Romero, executive director of the American Civil Liberties Union.

Romero said a special prosecutor from outside the Justice Department needs to be appointed. “This confirms many of the fears about Gonzales’ appointment — that he would not be sufficiently independent from the president and that he would play the role of a crony,” he said.

Indeed: Attorney General Alberto Gonzales has already made it clear that he’s defending the administration on this issue. If he’s the one in charge of the problem there will be charges that it’s politically motivated and perhaps even triggered by Presidential ire. If Gonzales is running the show, expect this issue to be argued along partisan lines. MORE:

Duke University law professor Scott Silliman agreed that the Justice Department is taking the wrong approach.

“Somebody in the government has enough concern about this program that they are talking to reporters,” Silliman said. “I don’t think that is something the Justice Department should try to prosecute.”

Douglas Kmiec, a Pepperdine University law professor, said the Justice probe is the next logical step because the NSA is alleging a violation of a law that prohibits disclosure of classified information.

“The Department of Justice has the general obligation to investigate suspected violations of the law,” Kmiec said. “It would be extraordinary for the department not to take up this matter.”

And so you have it: the quintessential tug-of-war between the whistleblower (whose career and future freedom may be constrained) and the idea that if something is going on in the government that is seemingly illegal or wrong someone needs to speak out so the public knows about it. The former is legality; the latter a question about what to do about what is perceived by the whistleblower as a legal moral issue. MORE:

The NSA probe likely will result in a repeat of last summer’s events in Washington, where reporters were subpoenaed to testify about who in the administration told them about Plame’s work at the CIA. New York Times reporter Judith Miller spent 85 days in jail for refusing to reveal her sources.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the Plame investigation was about “political gamesmanship.” But, she said, the NSA leak probe is frightening.

“In this case, there is no question that the public needed to know what the New York Times reported,” she said. “It’s much more of a classic whistleblower situation. The public needs to know when the government is engaged in things that may well be unconstitutional.”

One reason why the government’s decision is likely to spark more political turmoil is the administration’s contention that this is what it must do to protect the United States and that there will be no apologies or compromise about that. The Los Angeles Times:

Today, as it has in the past, the NSA refused to comment on whether it has asked for such an investigation. It also has not confirmed whether it continues to conduct surveillance on U.S.-based persons without a warrant, even after President Bush confirmed that he had authorized the secretive agency to do so….

….In a letter to Congress last week, the administration said the nation’s security outweighs privacy concerns from those who were monitored.

But top-ranking senators from both parties have been preparing questions for administration officials at upcoming hearings on the controversy. Some questions aim to pin down the administration on the issue of wholesale versus individual surveillance, according to congressional staffers.

Yes, indeed. Between this investigation and the issues it raises and the Jose Padilla case now before the Supreme Court and the issues it raises one thing seems clear: one way or another, the United States at the end of 2006 could be significantly different than it is today. Big issues. Big decisions. Big consequences..


–Glenn Reynolds, aka InstaPundit: “My guess is that the New York Times editors are going to wish they hadn’t called so loudly for an investigation of the Plame affair.”

Mark Kleiman:

One blogger — I’d be grateful for a pointer to a link — made another point I’d like to hear more of. The ability to spy on domestic conversations is obviously abusable. And we already know that Tom DeLay tricked the Department of Homeland Security into tracking the whereabouts of Texas Democratic legislators who had fled to Oklahoma to try to block a quorum for DeLay’s redistricting scheme. And we know that DeLay got away with it. So if the question on the table is “Will the Republicans abuse domestic-security powers for political purposes?” we know that the answer is “Yes.”

Ed Morrissey:

The pattern of leaks clearly shows that members of the intelligence community want to fight a war — but rather than fight a war against the terrorists that killed thousands of Americans and want to kill millions more, they’ve chosen to fight one against the elected civilian government of the US. For some strange reason, those who claim to love civil liberties have decided to take the side of the unelected bureaucrats in this Coup Of The Thousand Leaks. When partisan hatred meets with professional egotism, the resulting bedfellows turn strange indeed. The Justice Department needs to put an end to this wholesale dismantling of the national defenses that have kept the US safe from attack for the past four years, and do it quickly.

Americablog: “Frauds. Because leaking damaging information during wartime is such an anathema to the Bush Administration.”

Gateway Pundit: “After numerous media leaks jeopardizing national security operations in the past several months, it’s about time!”

Taylor Marsh: “Our petulant president is finally getting an investigation he believes in….So, operation “I can to eavesdrop!” is in full swing, led by Terror Guy’s chief tricky Dick-like dirty tricks lawyer, Alberto “let them drown by waterboarding” Gonzales. Because our president will not be denied his due, which he believes is to snoop wherever, whenever and into whatever he wants. Ah, it’s good to be king.”

Michelle Malkin has (as usual) a great series of news and weblog links and gives her own blunt assessment. Here’s a small part of it:

1) Won’t be long before we start hearing the Bush-haters at the Times and elsewhere moaning about how this probe is a waste of time/distraction from the important business of Congress/politically motivated(!).

2) Look for the Plamegate apologists to argue that the NSA leaks were “good” leaks, justified in the name of safeguarding civil liberties and the national interest, and should therefore be exempt from criminal prosecution.

By contrast, they argue that disclosures about Valerie Plame were “bad” leaks worthy of pulling out all prosecutorial stops–though no one has been charged with leaking classified info, and even if they did, the adverse effects on national security are infinitesimal compared to the damage done by the NYT/NSA leaks.

The Carpetbagger Report: “Inevitably, the right’s talking points will tell us that the administration’s critics are hypocrites. We wanted the Justice Department to probe the Plame leak, they’ll say, but not the “snoopgate” leak. But if Bush’s political allies can’t see the difference between exposing official wrongdoing and exposing a CIA agent to help cover up bogus pre-war claims, there’s just no hope for them.”

The Talent Show:

I know you guys will do everything in your power to ensure that news doesn’t hurt Junior’s feelings, but after reading five or six articles on this and seeing the coverage by CNN, I can’t help but think that you’re collectively avoiding the use of the word “whistleblower”.

Which is odd since it’s obvious to everyone that the President’s domestic spying program is illegal. That’s not the opinion of some pissed off blogger either. It’s a demonstrable fact that it’s a crime for the President to order wiretaps without judicial oversight. Pointing this out isn’t petty partisan politics, it’s keeping the public informed…

Sister Toldjah: “Good. I hope they find out who leaked this. Whether Dem or Republican, the person(s) responsible must be held accountable for a leak that *truly* has the potential of damaging our national security (unlike Lamega .. er, Plamegate).”

For Dee: “So the Justice Department finds a leak by one of their own on a top secret matter – and they investigate. Which leads me to a question: When should we expect Karl Rove to be fired?…This is a smoke screen to take pressure off the President for authorizing a program that is against the law. This White House gets nothing done. It deflects, spins, and changes the subject as much as possible. When are they going to have a press conference and say, “Hey – this is what we did. We accomplished something?”

Blogs For Bush: “This begs the question: Why does the radical left oppose fighting the war on terror?”

Drinking Liberally: “How stinking charming is it that the WH now denounces leakers??? Is Abu Gonzales leading the way, all of a sudden?”

Right Wing Nut House:

Will the career prosecutors and investigators at the Department of Justice dig into this investigation and carry it out with the sustained vigor and intensity it deserves? Or will they simply go through the motions and tiptoe around the press as they normally do, fearing the anger of the editorial boards of the New York Times and Washington Post?..I am frankly not very hopeful that much will come of this investigation. The DOJ has never been very aggressive in the area of national security leaks to the press, seeing it as a First Amendment issue rather than a national security one. And unless some kind of link can be found in some of the leaks, I doubt whether a Special Prosecutor could be appointed.

Digby: “I assume this also means that nobody from the White House will be able to comment in any way since there is an ongoing investigation. And that means no matter what comes up, Scotty is required to stonewall. Even when he doesn’t want to. Thems the rules.”


I’m glad that it’s happening so quickly. However, we all can imagine the political firestorm that will be a by-product of this investigation, especially with the 2006 elections upcoming. No doubt there will be much political posturing on this matter from both sides of the aisle .

Another factor that may fill all of us with dread: the subpoenas of New York Times editors and reporters to whom the information was leaked. Without a doubt, some or all members of this group will be willing to go to jail rather than give up their sources. Certainly, this would be cast as a noble act of journalistic martyrdom. However, an even nobler act would be for those who leaked the program’s specifics to come forward and save these editors and reporters the trouble.

A Rose By Any Other Name:

It’s about darn time! There should be someone charged with treason in these last two “leaks” of information. The “black” prisons and the NSA “listening in” are both national security issues. If the ACLU and the liberal MSM have their way, they will have all the details of these programs on the front page of the papers and then we can expect the terrorists to take full advantage of it. We are at war. It is necessary for some things to remain undisclosed for the safety of all of us. Why is this such a difficult concept for so many on the left to realize?

Seedrum Musings looks at this issue using a piece written by former Nixon administration member John Dean. A key quote:

Bush, says Dean, “may have outdone Nixon: Nixon’s illegal surveillance was limited; Bush’s, it is developing, may be extraordinarily broad in scope. First reports indicated that NSA was only monitoring foreign calls, originating either in the USA or abroad, and that no more than 500 calls were being covered at any given time. But later reports have suggested that NSA is ‘data mining’ literally millions of calls�and has been given access by the telecommunications companies to ‘switching’ stations through which foreign communications traffic flows. In sum, this is big-time, Big Brother electronic surveillance.” As for Bush’s criminal investigation into the leak, Dean says, “Such a criminal investigation is rather ironic�for the leak’s effect was to reveal Bush’s own offense. Having been ferreted out as a criminal, Bush now will try to ferret out the leakers who revealed him.”

–Crooks And Liars gives you a VIDEO of a recent Dean interview on the warrantless wiretaps and how he views it in legal and historical terms.

Powerline: “Great news. This makes two; the leaked story about secret detention facilities in Europe is also under investigation. I doubt that anything short of the sight of bureaucrats doing jail time will slow down the torrent of illegal leaks from the federal agencies, so let’s get on with it.”

The Heretik has its usual stylish and content-heavy excellent take. A small segment: “Where some have a night vision that sees power’s shadowy hand pulling us further into the darkness, others see a treasonous leak that deserves death punishment in the light of day. Some sacrifices must be made. Liberty and Security. You are either with us or against us. Give me liberty or give me death. Literature and history are filled with the Theme of the Traitor and the Theme of the Dagger’s Blade.”

Running Scared also has a long analysis that needs to be read in full. A few key excerpts:

I’d have thought it would have been fairly difficult for most of the prominent conservative bloggers to step up to they keyboard and get very excited about this….The trouble with this is that these are the very same bloggers who were calling the Plamegate leak investigation a “waste of time” and saying that it was “no big deal” and people should just “get over it?” It may be hard to justify those two approaches when they are put to a side by side comparison…

Personally, I feel that this investigation had to take place and needs to move forward. As far as I’m concerned, the jury is still out on whether or not the President had the right to order warrantless domestic eavesdropping. Some fair cases have been made on both sides and that will have to be decided in the courts. But we’ll need to ask ourselves when such leaks from inside the government are true “whistleblower” cases… But if the program turns out to be fully legal and constitutional, then that person would need to face consequences just as in the Plame case.

–The Mighty Middle’s Michael Reynolds does not mince words so you need to read his entire post. A tiny taste 4 U:

This is not about national security. This is not about keeping our country safe. It is about the deliberate sabotage of the rule of law and the assertion of effectively unlimited presidential power…I have no problem with wiretapping to protect national security…. But I have a very big problem with an executive branch that asserts unlimited powers. We have a system of laws. We have a system of checks and balances. The president is attacking that system of laws, attacking that system of checks and balances, attacking the foundations of our democracy.

The people who act as apologists for this presidential power grab are one with the Americans who tacitly accepted the red-scare Palmer raids after WW1, the interning of Japanese Americans in WW2, the blacklists of the 1950’s and the criminal activities of Richard Nixon during Viet Nam.

A Stitch In Haste’s attorney Kip Esquire writes:

Meanwhile, it’s important to remember that the law making it a crime to leak sensitive information to the media applies to the government source, and not to the New York Times, which is protected by the First Amendment generally and the so-called “Pentagon Papers” case specifically…

We are not talking here about disloyal subversives who disclose classified information to aid the enemy (e.g., outing an undercover agent) or for mere financial reward (e.g., selling secrets to foreign powers). This leaker was, as far as we know, a patriotic American trying to expose, for our own sakes, a dubious government program.

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