I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, December 30, 2005

Finally punishing the wrongdoers in the NSA scandal (updated)

The Justice Department is finally moving to investigate the criminals responsible for the NSA illegal eavesdropping scandal . . . . not the people who engaged in the illegal conduct, but the real criminals -- the ones who brought the illegal behavior to light. The New York Sun, appropriately enough, has the leaked scoop:

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.

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