The Justice Department has opened an investigation into the leak of classified information about President Bush's secret domestic spying program, Justice officials said Friday.
The officials, who requested anonymity because of the sensitivity of the probe, said the inquiry will focus on disclosures to The New York Times about warrantless surveillance conducted by the National Security Agency since the Sept. 11 terrorist attacks.
We already have nice legal theories in place designed to allow the President to violate the law with impunity. But the good thing about this investigation is that it will deter anyone else in the Government from exposing illegal action on the part of the Bush Administration, and if that doesn't work, it will make newspapers too afraid to publish such stories -- exactly the way the New York Times was bullied into sitting on this story for a full year.
Sure, even if illegal conduct gets exposed, nothing will happen because the President has the constitutional authority to violate the law during war. Everyone knows that. But when it comes to arrogating unto yourself the right to break the law, one can never have too many safeguards.
Whoever is responsible for this leak has done grave and incalculable damage to national security, because nobody knew until the Times disclosed this story that we were eavesdropping on terrorists. That came as a great shock to both us and to the terrorists. And the fact that the Administration was eavesdropping without warrants in violation of FISA (as opposed to with warrants in compliance with FISA) has done wonders for enabling the terrorists to adjust their methods. The NYT's disclosure of this story has made it painfully obvious on which side of the war on terror is the Times, sitting as it is smack dab in the middle of Times Square and therefore hoping upon hope to make it easier for the terrorists to successfully engage in attacks against America.
If there is one important principle on which the preservation of liberty in this country depends, it is that people at the highest levels of Government who deliberately break the law have every right to do so, whereas those who prevent the ongoing concealment of that illegal behavior and the newspapers which report on it must be punished to the fullest extent of the law. And we all know what that means.
UPDATE: Lest there be any confusion about the true purpose of this "investigation," the always angry Rocket -- in a post entitled "Throw 'em in the Slammer" -- clears it all up:
The Justice Department has launched a criminal investigation of the leaks to the New York Times regarding the NSA's anti-terror programs. 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.
All government employees need to learn to keep their mouths shut when they see illegality in the Bush Administration, and nothing will "encourage" (in a Sopranos sort of way) would-be whisteblowers to keep quiet more than seeing the NSA whistleblowers hauled off to prison, while those responsible for the illegal eavesdropping remain free.
That is fascism, punishing those who speak out against the government with criminal laws, while allowing the Government to violate those laws however it wants.
ReplyDeleteMaybe we can just skip right over the whole trial thing and get to the hanging, the way they wanted to do with Saddam Hussein. And Jose Padilla.
not sure what you had for Christmas there, Glenn - some kind of super spiked eggnog or something, but you have been on fire these past few days, and your snark level is over the moon. Keep it up, it's hilarious and piercing.
ReplyDeleteGlenn, you're being really cute. Although this approach may work in the courts of New York - I've also written stuff like this for NY courts and it has worked - that doesn't mean it'll cut dice in the rest of the country.
ReplyDeleteGlenn: you are an attorney, so I'd like to ask your opinion.
ReplyDeleteSuppose a mid-ranking NSA employee is identified as the source of the leak. Are there legal protections as a whistleblower that may apply in such a case? Generally, what would a defense look like?
Solomon, I don't think there is anything "cute" about what Glenn wrote and I doubt he does either. Do you actually think that the person who blew the whistle on this illegal behavior should be treated like a criminal? And don't you find it amazing that the DoJ is spending its resources on THIS but not investigating whether there was illegality with the eavesdropping itself?
ReplyDeleteThe "cute" part is in assuming that this stuff is illegal when there are very good legal arguments to support it. Any legal violations appear to be quite small and limited.
ReplyDeleteIf as you think, these actions were illegal, was it not a crime then for the NYT to keep its knowledge of such matters secret for a year? No, it is more logical to conclude that they knew it was legal and released it only for the support it would provide to their reporter's upcoming book release.
Anyhow, it is not my opinion that what the NYT itself did was illegal. Why couldn't they just rat on their informants instead? Is it "freedom of speech" if you are so committed to your sources that you are compelled to help them perpetrate their activities?
I can't believe the DoJ would really want these prosecutions to go forward. Doing so would put squarely at issue whether what the whistleblowers blew about really is illegal, would it not?
ReplyDeleteDoes the DoJ really want an adjudication of that?
FDL has a good point- they knew about the whistlelowing last year. If it's illegal now, why wasn't it then?
ReplyDeleteThe Whistleblower issue isn't going to make much of a difference here. At best, all the federal whistleblower statute allows is for the improperly discharged employee to have a claim for wrongful discharge - to recover compensatory damages, etc. It's just a run-of-the-mill employment claim and isn't likely to matter at all in this context.
ReplyDeleteI also don't know - and even sort of doubt - whether an employee can claim whistleblower protection when the whistle blowing is itself a crime (the unauthorized disclosure of classified information). And I don't think that it's an element of the claim for the employee to prove that the disclosed conduct really was illegal; just that there was a reasonable basis for believing it was.
Finally, it is not a crime for the NYT or anyone else to be aware of criminal activity but not report it. The Administration insisted to the NYT that national security would be harmed if it disclosed this information, which is why it sat on it for a year. That is irrelevant to any whistle-blower claim.
Having said that, it is a good point to note that the Administration was aware of the disclosure to the NYT for a year and did nothing - until it got embarrassed by the disclosure. Then again, it would be plausible for the Administration to argue that it did not want to take action against the leaker for fear that it would lead to public disclosure of the eavesdropping program, and then did so only once the cat was out of the bag.
Ultimately, I don't think the issue of civil liability arising out of the whistleblower statute matters at all. What is important here is the unbelievable fact that the DoJ is aggressively protecting and defending those who broke the law while pursuing investigation and prosecution of those - including potentially the NYT - who brought the illegal behavior to light.
Well, it would seem to me that prosecution and suspension of a security clearance could be characterized as retaliation in the employment context. Not that I think people with security clearances should just be deciding for themselves that something is illegal and then go running off to the press with classified data.
ReplyDeleteBut maybe you are right, and the illegality of the thing disclosed wouldn't be an issue.
Well, it would seem to me that prosecution and suspension of a security clearance could be characterized as retaliation in the employment context.
ReplyDeleteThere may be a lawsuit here (I doubt it, but maybe) - but so what? The broader issues dwarf the importance of whether the leaker, if he's uncovered, fired and prosecuted, will be able to sue for compensatory damages.
Not that I think people with security clearances should just be deciding for themselves that something is illegal and then go running off to the press with classified data.
I understand that sentiment in principle, but if you worked in the Bush Administration - at the NSA or wherever - and you learned that they were violating the law by eavesdropping on American citizens in violation of FISA, and in secret, what other option do you have?
Whoever leaked this is a hero and a patriot and someone of great courage.
Glenn G:
ReplyDelete"Whoever leaked this is a hero and a patriot and someone of great courage."
Really? How do you feel about whoever blew Valerie Plaime's cover?
He or she is only a courageous patriot if the activity he or she disclosed turns out to truly be illegal...a conclusion that you have apparently jumped to.
But then unless you are empanelled on the jury, that won't be for you to decide, will it?
Until then, they disclosed a secret operation, and that IS a crime.
Regards;
A peripheral comment: The DoJ may have a harder time coming up with the leaker(s) than in the Plame investigation.
ReplyDeleteA close reading of the ruling that put the squeeze on Judy Miller and Matt Cooper reveals that the DoJ may not have the same latitude in this case. (This was explored in a recent post at firedoglake.) The primary balance in the law is between the newsworthiness of the story versus the damage done. To squeeze the NYT for their source(s) in this case, the DoJ would have to argue that the story ("President breaks law!") wasn't worth telling, for the damage it would do to our national security interests. A tough sell, perhaps.
Also worth noting is the speed with which this leak investigation has commenced; to those with long memories, it took well more than a month, and direct prodding from the CIA, for the DoJ to pick up the Plame investigation.
And Glenn, I'd like to thank you for your insightful posts on this story. I hadn't seen your blog before a couple of weeks ago; it's always wonderful to find an informed opinion amid the noise.
Really? How do you feel about whoever blew Valerie Plaime's cover?
ReplyDeleteI'm not one to get really worked up over the Plame matter, but the leakers there were motivated by (at best) advancement of their personal political agenda, while the NSA leakers were motivated by a desire to expose wrongdoing by our highest political officals. No explanation should be required to see why they are not even close to being comparable.
Until then, they disclosed a secret operation, and that IS a crime.
How funny that you criticize me for concluding that the Administration acted criminally without waiting for their trial, only for you, in the very next sentence, to proclaim that leakers committed a crime.
There really isn't a factual dispute about what the Administration did. They admit that they eavesdropped outwise of FISA What is in dispute is the legal question of whether the President had the right to violate FISA (i.e., break the law), and I don't need to wait for a jury trial to know the answer to that.
I guess I don't understand how Ellsberg got off. Those docs were also top secret, he leaked them, but he got off somehow.
ReplyDeleteGlenn G:
ReplyDelete"...over the Plame matter, but the leakers there were motivated by (at best) advancement of their personal political agenda, while the NSA leakers were motivated by a desire to expose wrongdoing by our highest political officals."
Uh-huh...I see.
"No explanation should be required to see why they are not even close to being comparable."
Sure...you approve the one, and mildy reprove the other.
That's fairly clear.
(BTW, I say prosecute ALL of 'em.)
"you, in the very next sentence, to proclaim that leakers committed a crime."
Before one is given a security clearance, one is instructed, at length, not to blab the knowledge entrusted to you to The Times,(New York OR Washington versions). On penalty of law.
In fact, one likely has to sign all kinds of legal documents attesting that one is informed and consents to these strictures as condition of being granted that clearance.
So stop trying to be cute.
"What is in dispute is the legal question of whether the President had the right to violate FISA (i.e., break the law), and I don't need to wait for a jury trial to know the answer to that."
BOOM! CLANG!
(That sounds like your mind slamming closed on the matter).
Regards;
There you go with the sound effects, Bilgeman. You with the boom clang and Condi with the mushroom clouds. Do all you guys stay up at night thinking of these clever cymbalisms? (get it, cymbals, boom clang. etc? no? shit.)
ReplyDeleteIt's odd you don't see the difference. We actually know who the leakers are of the Plame thing. Bush is ok with them. I thnk after he promised to fire anyone and then didn't he has sort of submarined his stature wrt leaks. He clearly doesn't care about the leaks as they affect national security, only as the affect his personal life.
He is an unstrustworthy sob, isn't he? Full of sound and fury, signifying nothing.
Kind of like you, that way, Bilgeman.
Here we come to it once again. Bush says it's national security, and it is (except it ain't), AQ is in Iraq (except they weren't), Saddam supported the 9/11 hijackers (except he didn't), he will fire the Plame leaker (except he didn't) we will rebuild New Orleans (not yet). Ya know, they guy just has a problem with truthfulness.
Jake
Cynicism sits on a throne.
ReplyDeleteglenn: And the fact that the Administration was eavesdropping without warrants in violation of FISA (as opposed to with warrants in compliance with FISA) has done wonders for enabling the terrorists to adjust their methods.
ReplyDeleteNow that was funny!
Bilgeman: (BTW, I say prosecute ALL of 'em.)
ReplyDeleteI think criminal intent should enter into this at some point. The whole purpose of the Plame leak was nothing but a dirty trick on the part of the Administration, viz. to discredit Joe Wilson. The whole purpose of the NSA leak was to bring to light the criminal activity of the White House in conducting warrantless wiretaps.
So although we do have two leaks. The purpose of one was a dirty trick and the purpose of the other was to report on a crime.
I know this distinction will be lost on the rightwingers in their neverending kowtow to (rightwing) authority but it's something the rest of the country can understand -- even those parts, pace Solomon2, lying outside of New York.
anonymous:
ReplyDelete"I think criminal intent should enter into this at some point."
Why? If the leakers intent was noble, then why are they shielding their identities?
You don't hide when you call the police to apprehend wrongdoing. You only hide when you yourself are a rat,(Deep Throat, anyone?).
"The whole purpose of the Plame leak was nothing but a dirty trick on the part of the Administration, viz. to discredit Joe Wilson. The whole purpose of the NSA leak was to bring to light the criminal activity of the White House in conducting warrantless wiretaps."
Utter speculation on your part and totally unsupported by a shred of facts.
Just because you would like to THINK it's so, doesn't MAKE it so.
"I know this distinction will be lost on the rightwingers in their neverending kowtow to (rightwing) authority but it's something the rest of the country can understand -- even those parts, pace Solomon2, lying outside of New York."
And with this para, you give the game away. You know you're spouting BS, and you know you're gonna get called on it, so you're smearing any possible opponents in advance.
BTW, far from being a pair of "back 40 rubes", Solomon2, like myself, are metro DC residents, so the leak game is something we've seen many many times before.
Nope, anon ole chum, prosecute the leakers in BOTH cases.
That's what's right and fair.
Regards;