About Damn Time: The Investigations Are Going Forward

We are not the only ones lining up and screaming for this. Many people have been calling for it since the NSA leak. And we do not want the culprits shoved under the rug. Let us get them up, out, and in the open. This cannot be allowed to continue. Those that are discovered should be charged and tried; prosecuted to the fullest extent of the law as a warning to anyone one else that thinks that this is okay to do.

http://www.foxnews.com/story/0,2933,180190,00.html
WASHINGTON — The Justice Department has opened an investigation into the leak of information to the media about a domestic eavesdropping program run by the National Security Agency, senior Justice Department officials confirmed Friday.

Officials have confirmed to FOX News that the FBI is involved in the investigation, but did not comment on whether other agencies were involved, or when the investigation began. One official has said the referral for the probe came from the NSA.

The White House is expected to comment further on the investigation at 12:30 p.m. ET.

Details of the program were first revealed Dec. 16 by The New York Times, which reported that the NSA has monitored phone calls and e-mails inside the United States without court warrants since shortly after the Sept. 11, 2001, terrorist attacks. The program circumvented a secretive court process that allows warrants to be issued without the knowledge of the warrant's subject.

Times' spokeswoman Catherine Mathis on Friday declined to comment on the investigation, according to The Associated Press.

Hmm. I wonder if the Times might be worried that a pair of their journalists will be put int he same cell Judy Miller was. Will the Times stand behind these two the way they did with Miller if they refuse to reveal a source? This is not a game. Leaks like this can be dangerous, and could very well cost those involved in this war--abroad or at home--their lives.

President Bush and other administration officials have vigorously defended the program, saying the secret court process begun under the 1978 Foreign Intelligence Surveillance Act is too slow to pursue the country's enemies.

Officials said the program only focused on members or associates of al-Qaeda, and there is legal justification for it in the Constitution and the Sept. 14, 2001, congressional resolution authorizing force after the attacks.

Yes, it is Constitutional (under Article II, Sections 1 and 2), and the authorization to use military force on Sept. 14 clearly states the following:

IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

In short, "all necessary and appropriate force" includes the NSA surveillance. And I am pretty irritated when I hear the press call this "domestic spying." It is not domestic spying. That is something entirely different. This is domestic surveillance of our enemies.

Bush said details of the NSA program were "improperly provided to news organizations."

"As a result our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, [and] endangers our country," Bush said.

And that makes the act a crime, under USC 18 793, 794, and 798. There is no protection in this. There needs to be prosecutions. These people need to serve quite a bit of time behind bars for this. They revealed a classified program, and the press participated. There should be a couple of people at the Times that joins the leakers in a prison cell.

The president has also described the leak as "shameful," saying the program's disclosure gives terrorists the upper hand. He said he presumed the Justice Department would look into the matter if the NSA requests a probe of the leak.

Political Backlash
Several lawmakers have demanded hearings into the NSA surveillance program. Sen. Arlen Specter said this week he would like hearings as soon as January. Others have said the leak itself is a serious breach.

Sen. Specter has his plate full in January. Not only does he have the Alito hearings, but he wants hearings into the leak. I hope he realizes that this investigation needs to move slowly. Not slow in a plodding, drag-your-feet sort of way, but one in a methodical way. I want names, I want people held responsible, and I want a message sent that this is not acceptable, and it will be punished.

Sen. Jay Rockefeller, D-W.Va., vice chairman of the Senate Intelligence Committee and one of the members briefed by the administration about the surveillance plan, expressed deep reservations about the program to the vice president in 2003. But he said he also would like hearings into whom leaked the story to reporters at the Times.

Rockefeller better mind his "p's" and "q's." There are plenty of people we know that think he might be behind the leaks, or have a hand in them. He has just as much to prove to those people as anyone else does. This is a nation that one is innocent until proven guilty, however people are quick to assess guilt, and wait for their innocence to be proven.

Reps. Peter Hoekstra and Jane Harman, the chairman and ranking Democrat, respectively, on the House Intelligence Committee, also condemned the leak, saying it hurt national security.

While Harman, of California, said she believes broader oversight is needed of the NSA program, "its disclosure has damaged critical intelligence capabilities."

The oversight involved is fine right now. The president, those in his administration that are aware of the program, the congressional leaders, and those within the NSA go over the program every 45 days. That is better oversight than what Congress can usually afford such a program.

"These politically motivated leaks must stop," Hoekstra, of Michigan, said in a statement.

Amazing that: A Democrat that gets it. He knows these are politically motivated. He knows that these leaks were designed to do one simple thing: Hurt the administration. The Times can hold the leakers up as "heroes," but in my opinion they rank up there with the rest of the POS's in politics. They are criminals, and deserved to be treated as such. The revelation of this program was anything but patriotic.

Edward Turzanski, a senior fellow of the Foreign Policy Research Institute and a national security analyst at La Salle University, agrees. He told FOX News that he believes a special prosecution team might be needed to investigate the leak.

"We've reached a critical mass," Turzanski said. "There's too much damage to our national security capabilities, to critical information and to the war-fighting effort. And that is where this urgency comes in."

Good. Get a special prosecutor, but the two journalists on the stand, and grill them. They are the only people who know, for sure, who the leaker is. We need to know what they know, and again if this involves jail time, oh well. We are perfectly well within the law to do so. Their refusal to reveal the names constitutes an obstruction of a federal investigation. I would love to see how long they will last before they crack, and give up the name(s).

But special investigations can be distractions, and too much pressure will be put on bringing back an indictment, said Ronald Cass, a legal scholar and former dean of the Boston University School Of Law.
"It's better to leave these matters in the hands of the Justice Department; let them handle it through the ordinary course," Cass told FOX News.

What's Next?
And there is already speculation over what might result from a leak investigation. Some question whether the government can even pursue the leakers in this particular case.

"The government has no legal right to pursue the whistleblower [or] whistleblowers who disclosed what's been publicly aired to date," Tom Devine, the legal director for the Government Accountability Program and a lawyer who represents whistleblowers, told FOXNews.com.

Not true. If there are whistleblowers that come from Congress, or the NSA, they can be prosecuted. It is not up to them to determine what is and what is not a breach of civil liberties. Further, if it is proven that those under surveillance were not US citizens, then they have no protections under the Constitution.

Devine said at least two laws protect a potential leak source. One is a so-called anti-gag statute that prevents the government from spending money on a leak investigation unless it specifically warned the employee that its gag rules cannot trump good-government laws.

On the contrary, anyone involved in this program--a classified program--are bound by the Espionage Act of 1917. The Supreme Court ruled in 1919 that the Act was Constitutional in Scheneck v. United States. The renewals and changes under the Espionage Act still make it a crime for a government employee with classified information to release said information.

The leak also could be legal if the Whistleblower Protection Act covers it, Devine said, as long as the leaker was not in the FBI, CIA or NSA, which aren't covered by the act. For instance, a civilian Pentagon employee who wanted to expose government wrongdoing would have free speech protections to expose abuses of power or illegal actions.

Point of order: A civilian would not have been privy to such information. No civilian in the NSA would have had access to this program, or knowledge of it, unless someone involved with the program told them. Again, an act like that would also be a crime. The government has said that this was a "secret" program. Regarding the levels of classified information, "secret" is the middle tier. Any information under the "secret" classification is deemed as creating serious damage to national security if the information is revealed. And anyone handling this information must have that level clearance or higher to handle it, or be involved with it.

The laws don't apply to public disclosure of classified information, Devine said, but a government worker could tell an inspector general if wrong-doing involving classified information has occurred. He said someone could also disclose unclassified aspects of a classified program, and be protected.

The White House has made it clear--including in today's press conference held just a few minutes ago--that the release of this program's existence was a detriment to our efforts in the war on terror. Our enemies now know how we have been keeping an eye on them. Their tactics will now change.

Because it's not yet known if classified information was given to reporters, there's no telling yet if that's a problem in this case. So far, though, Devine said he thinks everything he's seen published so far is safe from prosecution.

I have no idea what Mr. Devine is thinking. The majority of those in the law field have stated, point blank, that a crime was committed in the release of this information. This is a classified program. Had the government wanted everyone to know, they would have announced it. They would not have relied on someone to leak it at a later date. And to be fair to Mr. Devine, calling this person a "whistleblower" gives an impression that what they did was good; that they should be free from prosecution. This spin is no different than the Times calling this program a "domestic spying" program.

"This has been apple pie, protected speech," he said.

Tom Rosenstiel, director of the Washington-based Project for Excellence in Journalism, told FOXNews.com undoubtedly the Times story was enabled by a leak. But noting the ongoing investigation into the leak of CIA operative Valerie Plame-Wilson's identity, he said politicians will have a hard time meeting the burden of proof of criminality in a leak.

"There's a difference between a leak that violates, or might violate a specific law against outing an individual who's undercover or whose identity is classified, and an investigation into the more general kind of leaking about operations policies, that goes on, frankly, every day in this town," Rosenstiel said.

Except that Mr. Rosenstiel forgets that there was no outing of Valerie Plame. She was not covert. She had no NOC identity at the time she was revealed in the Novak piece, and her husband had outed her almost a year earlier on a website. They never took the precautions to keep her identity a secret, as was stated by many of their friends. And their kids, just days ago, confided to reporters that mommy was a "secret agent." (That may be what mommy and daddy tell the kids, but the facts paint a different story; that is a story where Valerie Plame should have been facing dismissal from CIA for going behind the backs of her superiors in regard to the Niger probe.)

Because of that, Washington's press corp doesn't appear to be greatly concerned. But Rosenstiel said it doesn't mean journalists should forget about the ethics of revealing secretive or sensitive information.

Rosenstiel stopped short of saying whether the Times should have run the story; rather, he said, those decisions are made on a case-by-case basis that changes not only by the story but by the people running the newsroom. The Times has said it held the story for a year after the administration told editors it could harm national security.

They were told! They were told it could hurt national security, and the Times still ran it. Knowing what they knew, hearing what they heard from the government, the Times still ran the sotry, knowing full well what the impact would be. If that is not blatant, purposeful malfeasance I honestly do not know what is. That would be the equivalent of the Times printing the date, time, and landing locations of the D-Day invasion after being told it would damage the war efforts in World War II. Someone on the editorial staff needs to lose their job, and face prosecution.

"There is no perfect equation," Rosenstiel said. "We want journalists to be parsing out and not just publishing everything they take in. ... If you're just putting everything you know in the newspaper ... then you're not doing your job."

And when they publish things that the government has told them not to, they are not doing their job, either.

Georgetown University constitutional law professor Peter Rubin said he hasn’t seen anything in the stories that gives terrorists additional information about government operations. It’s widely known, he said, that the United States can spy on people via wiretaps without letting the subject of the wiretap know beforehand — that’s the purpose of the Foreign Intelligence Surveillance Court, created under the Foreign Intelligence Surveillance Act.

Rubin noted that illegally putting out classified information is still a crime. But regardless of any investigation, he said he thinks that the general public is better off now than it was before the story about domestic spying broke.

“It seems obvious that they’re better off by having this story in front of them,” Rubin said.

I am glad I am not going to Georgetown for my law degree. I do not think that general public is better off. I do not think the general public needed to know. We are not cleared for it, and the Times was wrong to have run the story. The FISC was too slow in dealing with the necessary warrants. As a matter of fact, I found this a couple days ago. It comes from the UPI, and was part of a story regarding the FISC.

But since 2001, the judges have modified 179 of the 5,645 requests for surveillance by the Bush administration, the report said. A total of 173 of those court-ordered "substantive modifications" took place in 2003 and 2004. And, the judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection of a wiretap request in the court's history. (Quote, Hat-tip: Hugh Hewitt) http://hughhewitt.com/archives/2005/12/25-week/index.php#a000899

He said the NSA program is “a dramatic step of spying on American citizens in the United States. I think most people were very surprised to hear it,” including lawmakers on both sides of the aisle.

We do not know, as yet, if any of these people were US citizens. If they were, I am sure that the warrants were obtained for them. When it comes to "surprise," I doubt that any American was truly surprised that it was occurring. I believe the surprise came in the fact that a major news outlet was reporting it.

“That suggests a level of gravity of this,” Rubin said. The government has not said who has been the subject of eavesdropping, but that it may have involved American citizens.

The Times reported that the eavesdropping program helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to helping Al Qaeda plan to blow up the Brooklyn Bridge in New York.

Yes, and upon hearing of this program, Faris's lawyers want to know if he was the subject of such surveillance, if any of the information used against him was based on such information obtained in the surveillance, and if so why they were not privy to that information. Thanks to the Times, Faris might end up getting another appeal.

The rest of the FOX story points to other leak cases undergoing investigation. Now, I have respect for the people that FOX found to give their opinions regarding this program. But, based on the laws of the land, the Times is not protected from possible prosecution, and the leakers can be prosecuted, too. There is no protection for anyone who purposefully leaks this information to the poress, knowing that this program was to be kept secret. Not from the public, per se, but from our enemies. Mr. Rubin can claim that the terrorists know what we are capable of, but are they really?

Do they really know what this nation is capable of doing. I doubt it. They have an idea, an inkling, but I doubt they truly know the extent we are willing to go, and the legal boundaries we must play within. Now, they do. There is a reason this program was labled as "secret." It's release has done serious damage to national security; it has tipped our hand to the terrorists, and now they will change methods and tactics.

The Bunny ;)