Glenn Greenwald laments the rise of “American royalty.”

They should convene a panel for the next Meet the Press with Jenna Bush Hager, Luke Russert, Liz Cheney, Megan McCain and Jonah Goldberg, and they should have Chris Wallace moderate it.  They can all bash affirmative action and talk about how vitally important it is that the U.S. remain a Great Meritocracy because it’s really unfair for anything other than merit to determine position and employment.  They can interview Lisa Murkowski, Evan Bayh, Jeb Bush, Bob Casey, Mark Pryor, Jay Rockefeller, Dan Lipinksi, and Harold Ford, Jr. about personal responsibility and the virtues of self-sufficiency.  Bill Kristol, Tucker Carlson and John Podhoretz can provide moving commentary on how America is so special because all that matters is merit, not who you know or where you come from.  There’s a virtually endless list of politically well-placed guests equally qualified to talk on such matters.

Some of the examples are more egregious than others.  Murkowski is the most outrageous; plucked out of nowhere to be appointed to fill her father’s vacant seat by her father. Arguably, at least, those elected to public office to follow in the footsteps of famous fathers have to stand the scrutiny, such as it is, of the voters.  And Chris Wallace at least legitimately worked in the news business for years before getting tabbed to host a show.  Jenna Bush and Megan McCain seem to be celebrities solely because of who their dads are.

Liz Cheney is an especially odd case.  She is genuinely well qualified to comment on a variety of issues owing to having served for years in very important public policy posts.  Alas, it’s doubtful whether she’d have been appointed to said posts were her last name Smith or Jones.

I’m also a bit dubious of the inclusion of Goldberg, Kristol, and Carlson on the list.    Carlson and Goldberg had ever-so-modestly famous parents who presumably helped them get a foot in the door.  But it’s doubtful that Carlson got on TV based on who his parents were. Nor is it obvious why being a literary agent is of great help in launching a son as a conservative pundit. Kristol’s father was a giant and certainly helped launch his son’s career but he’s not in the same category of Podhoretz, who essentially inherited his dad’s magazine.

Leon E. Panetta, the former congressman and White House chief of staff. (Kevin Wolf/Associated Press)

When I saw the news yesterday afternoon that Leon Panetta was Barack Obama’s pick to head the CIA, I decided to hold off on posting and go play with my baby instead.  My initial reaction was much the same as to the news that Hillary Clinton was going to be the next Secretary of State — that it simply didn’t make sense given the lack of relevant experience — and I was in a distinct minority on that one, with the likes of Henry Kissinger praising the pick.   Not so much on Panetta.

To be sure, Panetta is a smart, decent fellow and he’s an excellent manager.  As David Corn writes, “Panetta is an even-tempered and highly regarded Washington player–kind of a Mr. Fixit in a nice suit.”  But he’s got essentially zero national security or intelligence experience.

Jules Crittenden has a good roundup of conservative blogger reaction which, not surprisingly, is scornful. But it’s not just the usual suspects scratching their heads.

Hudson’s Ron Radosh says the appointment “has created not only shock waves in Washington, but an obvious lack of enthusiasm on the part of some influential Democrats.”  Dianne Feinstein, the incoming chair of the Senate intel committee and a liberal Democrat, is less than sold.

“I was not informed about the selection of Leon Panetta to be the CIA Director. I know nothing about this, other than what I’ve read,” Feinstein said in a statement. “My position has consistently been that I believe the Agency is best-served by having an intelligence professional in charge at this time.”

Byron York says, “Word is Obama didn’t tell outgoing chairman Jay Rockefeller, either.”  Unusual if true.  And, frankly, odd for a transition team that has been universally praised for its diligence and smoothness.

CQ’s Jeff Stein says the pick “is likely to give Republicans fresh ammunition to reopen questions about the Clinton administration’s counterterrorism policies.”  Of course, Obama might view that as a feature rather than a bug.

Spencer Ackerman reports that, “initially at least, the Panetta pick has not generated consternation from intelligence veterans, despite his lack of experience with intelligence.”  Why?  “Although there is concern about putting an inexperienced director in place during wartime, some longtime intelligence officials see Panetta’s proximity to Obama as a silver lining, as having a director with Panetta’s close ties to Obama may ensure the agency’s continued relevance.”

Of course, that brings up another question, which  Noah Shachtman asks: “[W]hat about those pledges, to keep the intelligence community out of politics?”

In an update to his post, though, he notes the flip side:

Rozen gets an e-mail from retired CIA deputy director Milt Bearden, who goes even further. He calling Panetta a “brilliant” choice. “It is not problematic that Panetta lacks experience in intelligence,” Bearden e-mailed. “Intel experience is overrated. Good judgement, common sense, and an understanding of Washington is a far better mix to take to Langley than the presumption of experience in intelligence matters. Having a civilian in the intelligence community mix is, likewise, a useful balance. Why not DNI?”

Steve Benen makes a fair point as well:

That last point is of particular interest. Pretty much every official from within the CIA in recent years has been tainted in some way by Bush administration policies. Obama needed someone capable who had nothing to do with the last eight years, and Panetta fit the bill. At a minimum, he had the highest of security clearances during his tenure as White House chief of staff, and no doubt spent a lot of time in intelligence briefings and in the situation room, and he was a member of the Iraq Study Group*, so it’s not as if Panetta is going to the CIA with no background.

What’s more, while hiring from outside the agency seems a little odd, former CIA Director John Deutch told the New York Times that “two of the agency’s most successful directors, John McCone and George H.W. Bush, had little or no intelligence experience when they took over at C.I.A.”

Indeed, they’ve named their headquarters building after the last guy.

UPDATE: Matt Yglesias notes that it’s “long been the case that past service as a White House Chief of Staff has been viewed as a wide-ranging qualification for future public office.”

Alexander Haig became Secretary of State. Donald Rumsfeld and Dick Cheney both went on to serve as Secretary of Defense. James Baker become Secretary of Treasury and Secretary of State. There’s nothing unusual about the idea that service in that job qualifies people for senior national security positions.

Well, Haig was also a 4-star general and Supreme Allied Commander, so he’s in a different category.  And Baker’s tenure at Treasury, where he negotiated several key international economic agreements, were probably a stronger qualification than his previous stint as WHCOS.

Still, Matt’s right that that position is hugely important.  Rumsfeld was a naval officer and had served on the defense committee as a House member but was certainly no defense expert when he was appointed SECDEF the first time.  Cheney’s defense experience was limited, too, although he served as Republican Whip long after his tenure as WHCOS.

Barack Obama’s vice president may have a last name that starts with “Bye,” CNN’s Alexander Mooney reports.

The two senators widely believed to be at the top of Barack Obama’s shortlist for VP have been given prime-time speaking slots at the Democratic convention Wednesday night — the very same night the vice presidential candidate is slated to speak.

According to the Democratic National Convention Committee, both Indiana Sen. Evan Bayh and Delaware Sen. Joe Biden will deliver speeches on national security during the marquee night — the same evening former President Bill Clinton is also scheduled to speak.

New Mexico Gov. Bill Richardson, West Virginia Sen. Jay Rockefeller, Senate Majority Leader Harry Reid, and Colorado Sen. Ken Salazar will also speak Wednesday evening, according to the convention committee.

Of course, it could mean nothing. After all, Harry Reid surely isn’t going to be VP, even though he’s speaking that night.  And it’s not like the DNC couldn’t switch around the schedule to accommodate their vice presidential nominee.  Obama’s vising Richmond next week:  Could it be Tim Kaine?  Marc Ambinder thinks so.  And don’t dismiss the possibility of a dramatic wild card.  Robert Kuttner thinks Al Gore could be sweet talked into lending his stature to the ticket.

Of the above list, Kaine strikes me as the most obvious choice because of the executive experience and his helpfulness in bringing Virginia.  Bayh is largely unknown but he’s young and considered a rising star.  Biden brings national security gravitas but a lot of baggage.  And he’s a little long in the tooth to be the attack dog in an “the other guy is too damned old” campaign.   Al Gore on the ticket is a lefty fantasy.  He still thinks he won the presidency in 2000; no way he plays second banana to a guy who was a year out of law school while Gore was vice president the last time.

Reading the tea leaves is fun but it’s just pure wild guessing at this point.  It’s fully possible that even Obama doesn’t know yet who he’ll pick.

Jim Geraghty is not buying the notion that Wes Clark’s attempts to diminish John McCain’s military service was done without coordination with the Democratic Powers that Be.

After statements by a half-dozen high-profile Democrats and Obama surrogates, you cannot persuade me that there is not a concerted effort on the part of Obama Democrats to criticize McCain on his war record. George McGovern, Jay Rockefeller, Tom Harkin, Democratic congressional candidate Bill Gillespie, Ed Schultz, Tony McPeak, and now Clark. Way too many to be coincidence. We’re seeing a lot more derisive comments about McCain’s wartime service than we are about Obama’s race.

To those examples, I’d add the “McCain didn’t learn the lessons of Vietnam because he was a POW during the worst years” meme that floated around recently.

OTB commenter Bithead isn’t buying Obama’s attempts to distance himself from Clark.

Obama’s been doing this all along; Surrogates end up saying the smears and other trash talk the campaign needs to spread, and when things get too hot because of what gets said, Obama simply tosses the speaker under the bus, and claims he’s running a ‘clean campaign’, and he’s shocked…. shocked… that any of his people would come up with such a comment.

Let’s leave Ed Schultz, a radio host who one reasonably presumes isn’t coordinating with anyone and Gillespie, of whom I’ve never heard, out of the mix.  Do the remaining attempts to dampen McCain’s trump card, his military experience, constitute a pattern?  And, even if they do, is doing this, as Dale Franks suggests, beyond the pale?

Randi Rhodes is no longer employed by Air America.

The company’s official statement

Last week Air America suspended Randi Rhodes for abusive, obscene language at a recent public appearance in San Francisco which was sponsored by an Air America affiliate station.

Air America Media was informed last night by Ms. Rhodes that she has chosen to terminate her employment with the company.

We wish her well and thank her for past services to Air America. We will soon announce exciting new talent and programming that will accelerate Air America’s growth in the future.

Joe Gandelman, who speculates that Rhodes may have been pushed rather than jumping, has more thoughts.

What’s most notable about this incident is that it shows that there is a line that can’t be crossed — particularly in a divisive election year.

Vigorous, even controversial discussions or characterizations could spark denunciations but aren’t on the same level as name-calling swearing (even if, as some argued, it was done to be funny or even satirical).

One presumes that there’s a sliding scale, depending on how much revenue one is bringing in. Rhodes was, therefore, on a shorter leash than, say, Rush Limbaugh would be. But, yes, there appear to be limits. Ask Don Imus, who has had a much more successful career than Rhodes.

UPDATE: HuffPo’s Danny Shea reports, “Randi Rhodes quit Air America after being asked by the network to apologize for her inflammatory remarks against Hillary Clinton and Geraldine Ferraro.”

A source at Air America, who asked to remain anonymous, said, “Many people screw up and then apologize and move on. Like Imus. Like David Shuster. Like Jay Rockefeller on McCain. Like Obama on Rezko. Like Hillary on Bosnia. Randi Rhodes refused to apologize for her obscene comments and has chosen instead to terminate her relationship with Air America.”

The source also said that there is no love lost between Rhodes and her colleagues at the network. “No one is upset. She made the move but there’s relief and joy.”

Dismissing claims that Rhodes was just doing stand-up comedy in San Francisco when she made the remarks, the source confirmed that Air America paid her way to California, that she was advertised as “Air America’s Randi Rhodes,” and that the Air America website urged people to go for “an evening of politics and pop culture.” The source said, “Air America pays people to be talk show hosts, not stand-up comics, or else we’d hire Chris Rock.”

It remains unclear who will substitute for Rhodes’ time slot in both the short- and long-term, but the source said the network is looking at Rhodes’ departure as an opportunity to rebuild. “Sometimes it’s for the best that the leading player leaves so you can rebuild with better talent.”

Ouch.

The CIA destroyed at least two tapes of its operatives using “severe interrogation techniques” to obtain information from suspected terrorists, Mark Mazetti reports for the NYT. Both the 9/11 Commission and attorneys for Zacarias Moussaoui had specifically requested any such evidence and Agency officials had previously denied, under oath, that any such tapes ever existed.

The Central Intelligence Agency in 2005 destroyed at least two videotapes documenting the interrogation of two Al Qaeda operatives in the agency’s custody, a step it took in the midst of Congressional and legal scrutiny about the C.I.A’s secret detention program, according to current and former government officials.

The videotapes showed agency operatives in 2002 subjecting terror suspects — including Abu Zubaydah, the first detainee in C.I.A. custody — to severe interrogation techniques. They were destroyed in part because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy, several officials said.

The C.I.A. said today that the decision to destroy the tapes had been made “within the C.I.A. itself,” and they were destroyed to protect the safety of undercover officers and because they no longer had intelligence value. The agency was headed at the time by Porter J. Goss. Through a spokeswoman, Mr. Goss declined this afternoon to comment on the destruction of the tapes.

The existence and subsequent destruction of the tapes are likely to reignite the debate over the use of severe interrogation techniques on terror suspects, and their destruction raises questions about whether C.I.A. officials withheld information about aspects of the program from the courts and from the Sept. 11 commission appointed by President Bush and Congress. It was not clear who within the C.I.A. authorized the destruction of the tapes, but current and former government officials said it had been approved at the highest levels of the agency.

There were tapes. The tapes were subpoenaed, their existence was denied, and they were subsequently destroyed. It’s unclear what “questions” remain to be asked on that front.

C.I.A. lawyers told federal prosecutors in 2003 and 2005, who relayed the information to a federal court in the Moussaoui case, that the C.I.A. did not possess recordings of interrogations sought by the judge in the case. It was unclear whether the judge had explicitly sought the videotape depicting the interrogation of Mr. Zubaydah.

The CIA’s entirely plausible explanation is that they destroyed the tapes for security reasons rather than to subvert the legal process. That doesn’t, of course, mean that they didn’t subvert the legal process in so doing; indeed, it’s rather obvious that they did.

General Hayden’s statement said that the tapes posed a “serious security risk,” and that if they were to become public they would have exposed C.I.A. officials “and their families to retaliation from Al Qaeda and its sympathizers.” “What matters here is that it was done in line with the law,” he said. He said in his statement that he was informing agency employees because “the press has learned” about the destruction of the tapes.

General Hayden said in a statement that leaders of Congressional oversight committees were fully briefed on the matter, but some Congressional officials said notification to Congress had not been adequate. “This is a matter that should have been briefed to the full Intelligence Committee at the time,” an official with the House Intelligence Committee said. “This does not appear to have been done. There may be a very logical reason for destroying records that are no longer needed; however, this requires a more complete explanation.”

The destruction took place a year before Hayden came to the CIA, so he’s certainly not covering his own behind here. He’s right that, “What matters here is that it was done in line with the law;” it’s virtually inconceivable, though, that it was.

Staff members of the Sept. 11 commission, which completed its work in 2004, expressed surprise when they were told that interrogation videotapes existed until 2005. “The commission did formally request material of this kind from all relevant agencies, and the commission was assured that we had received all the material responsive to our request,” said Philip D. Zelikow, who served as executive director of the Sept. 11 commission and later as a senior counselor to Secretary of State Condoleezza Rice. “No tapes were acknowledged or turned over, nor was the commission provided with any transcript prepared from recordings,” he said.

Zelikow was a bit more circumspect in an interview on NPR this morning. Given that the Commission had no reason to think tapes existed, they didn’t specifically request tapes. But they issued a blanket order for materials that would certainly have covered these tapes.

Daniel Marcus, a law professor at American University who served as general counsel for the Sept. 11 commission and was involved in the discussions about interviews with Al Qaeda leaders, said he had heard nothing about any tapes being destroyed. If tapes were destroyed, he said, “it’s a big deal, it’s a very big deal,” because it could amount to obstruction of justice to withhold evidence being sought in criminal or fact-finding investigations.

People have gone to jail for obstruction of justice for actions much, much less brazen than this.

General Hayden said the tapes were originally made to ensure that agency employees acted in accordance with “established legal and policy guidelines.” General Hayden said the agency stopped videotaping interrogations in 2002. “The tapes were meant chiefly as an additional, internal check on the program in its early stages,” his statement read.

This raises an interesting sidebar: What were the results of the taping of these interrogations in that regard? Did Agency leaders decide they were witnessing torture and change their policies? Or did they decide that they were witnessing torture and decide to stop videotaping it?

John Radsan, who worked as a C.I.A. lawyer from 2002 to 2004 and is now a professor at William Mitchell College of Law, said the destruction of the tapes could carry serious legal penalties. “If anybody at the C.I.A. hid anything important from the Justice Department, he or she should be prosecuted under the false statement statute,” he said.

You’d think. Somehow, I doubt that’ll happen, though.

A former intelligence official who was briefed on the issue said the videotaping was ordered as a way of assuring “quality control” at remote sites following reports of unauthorized interrogation techniques. He said the tapes, along with still photographs of interrogations, were destroyed after photographs of abuse of prisoners at Abu Ghraib became public in May 2004 and C.I.A. officers became concerned about a possible leak of the videos and photos. He said the worries about the impact a leak of the tapes might have in the Muslim world were real.

It has been widely reported that Mr. Zubaydah was subjected to several tough physical tactics, including waterboarding, which involves near-suffocation. But C.I.A. officers judged that the release of photos or videos would nonetheless provoke a strong reaction. “People know what happened, but to see it in living color would have far greater power,” the official said.

Not much doubt about that. It doesn’t alleviate the requirement to comply with legitimate subpoenas, though.

Representative Rush Holt of New Jersey, a Democratic member of the House Intelligence Committee, has been pushing legislation in Congress to have all detainee interrogations videotaped so officials can refer to the tapes multiple times to glean better information. Mr. Holt said he had been told many times that the C.I.A. does not record the interrogation of detainees. “When I would ask them whether they had reviewed the tapes to better understand the intelligence, they said ‘What tapes?’,” he said.

Human rights groups contend that obstruction charges are the tip of the iceberg, as Jonathan Karl and Maddy Sauer detail for ABC News.

“If these videos were leaked, people would be horrified by them,” said Tom Malinowski of Human Rights Watch, “and they would begin to ask the obvious question — does this amount to criminal behavior?”

[...]

President Bush revealed to the public the existence of the CIA’s secret prisons last year, but he would not reveal the details of the agency’s interrogation procedures. But CIA officers have told ABC News they involve six escalating steps, ending in what’s known as waterboarding, in which prisoners are made to feel they are drowning. Human rights groups call it torture, but the president has insisted that the United States “does not torture.” The CIA has since banned waterboarding.

Human rights advocates say that if the CIA destroyed videos of suspects being waterboarded, they have destroyed evidence of torture. “Even some Republican senators believe that waterboarding is a form of torture,” said Malinowski. “It is a serious offense to destroy evidence of what may have been a crime scene.”

That strikes me as a bit silly. Regardless of whether we come to see waterboarding as torture under the law, there are no cases pending in that score now. Surely, the CIA isn’t obligated to hold on to anything that might conceivably be considered evidence of a crime in some future universe.

Andrew Sullivan goes even further down the path, officially proclaiming the United States “a Banana Republic.”

What defines such a republic? How about an executive that ignores the rule of law, commits war-crimes and then destroys the actual evidence? Today’s bombshell is that the CIA has done just that with respect to tapes made recording the torture of enemy combatants. Read the whole story. We live in a country where the government can detain indefinitely, torture in secret, and then secretly destroy the tapes of torture sessions to protect its own staff . . . . This was a deliberate act to destroy evidence of war-crimes and to protect war criminals from facing the rule of law.

We’re in agreement about the dangers of concentrating that sort of power in the hands of an executive. Certainly, it puts us on the slippery slope toward something other than a free society. But this ain’t exactly Cuba. And no competent international tribunal has indicted anyone for war crimes.

There’s really no reason to believe that the CIA destroyed the tapes for anything other than their stated reason, combined with perhaps some good old fashioned bureaucratic ass covering and an arrogant sense that they could get away with it because they’re the CIA. That’s bad enough, of course, and somebody should almost certainly go to jail. But we can probably stop short of grand conspiracy theories.

The story doesn’t stop here, though. Contrary to the impression given in Mazetti’s otherwise superb report, it appears that the CIA did in fact tell key members of intelligence committees about the tapes and their intention to destroy them. Pam Hess reports for the AP:

Rep. Jane Harman of California, then the senior Democrat on the House Intelligence Committee, was one of only four members of Congress in 2003 informed of the tapes’ existence and the CIA’s intention to ultimately destroy them.

“I told the CIA that destroying videotapes of interrogations was a bad idea and urged them in writing not to do it,” Harman said. While key lawmakers were briefed on the CIA’s intention to destroy the tapes, they were not notified two years later when the spy agency actually carried out the plan. Senate Intelligence Committee Chairman Jay Rockefeller, D-W.Va., said the committee only learned of the tapes’ destruction in November 2006.

So, during the time the information was under subpoena, two key Democrats on the intelligence committee knew of the tapes’ existence (along, of course, with at least two Republicans). At least one, Harmon, though destroying them was “a bad idea” — but did not actually order the CIA not to destroy them. Or even pass on their objections to the president.

As Marty Lederman observes,

According to Hayden, “the leaders of our oversight committees in Congress were informed of the videos years ago [they didn't ask to see them?!] and of the Agency’s intention to dispose of the material. In a news release that he put out this evening, Jay Rockefeller claims that the Intel Committees were not “consulted” on the use of the tapes “nor the decision to destroy the tapes.” But he does not deny that he was informed of the agency’s intent to dispose of the tapes, and he acknowledges that he learned of the destruction one year ago, in November 2006. And this is the first time he has said anything about it. Jay Rockefeller is constantly learning of legally dubious (at best) CIA intelligence activities, and then saying nothing about them publicly until they are leaked to the press, at which point he expresses outrage and incredulity — but reveals nothing. Really, isn’t it about time the Democrats select an effective Chair of the Senate Intelligence Committee, one who will treat this scandal with the seriousness it deserves, and who will shed much-needed light on the CIA program of torture, cruel treatment and obstruction of evidence? [emphases original]

One of the chief complaints of critics such as Sullivan and myself has been the lack of checks and balances in these incredibly important matters. Yet, in this case at least, it seems that Congress was informed and yet did nothing. Granting the possibility that the Bush administration might well have come up with a rationale for doing what it wanted regardless of Congressional input, that’s quite troubling.

Image source: ABC News

UPDATE: There seems to be an overwhelming consensus on this one, which is heartening. As one would expect, Bush administration critics are all over this. But so are plenty of conservative bloggers — like Ed Morrissey, Michelle Malkin, and Rich Moran — who generally support the president and his approach to the war on terrorism.

Lobbying groups and some Members of Congress, notably Sen. Jay Rockefeller, are pushing to force the Motion Picture Association of America to assign an automatic “R” rating to movies depicting characters smoking cigarettes. MPAA president Dan Glickman is resisting but says the ratings board “will now consider smoking as a factor among many other factors, including violence, sexual situations and language, in the rating of films.” Glickman points out that the percentage of films that included “even a fleeting glimpse of smoking” dropped from 60% to 52% between July 2004 and July 2006 and 75% of those were rated “R” because of other factors.

This points to the silliness of the ratings system with its broad categories.

To the extent that ratings are there to give parents information so that they can make responsible judgments about what movies to allow their kids to see, providing information about smoking seems reasonable enough. After all, smoking is addictive and can bring substantial health risk to those who smoke large numbers of cigarettes over a long period. There’s little doubt that seeing positive portrayals of smoking by movie stars and other role models can influence kids to think of smoking as “cool” and therefore take it up.

Then again, most parents would likely not object to their kids seeing somebody smoke a cigarette, figuring they can teach them about the risks. Yet, rating a movie “R” would take that call away from the parents, unless they want to sit with their kids in the theater watching the movie. (Although, in the age of Netflix, they could just wait a few months and let them see it at home.) Further, parents who wouldn’t object to smoking scenes may well decide against letting their kids see an “R” rated movie even if smoking was the primary culprit in earning that rating, since the basis of the ratings is far from transparent.

We’d be far better off dumping the current system for one that simply provided information about the movie’s content. Some parents may strongly object to graphic violence but have no problem with nudity, whereas others may take the opposite position. Some may object to nudity and violence but have no problem with the use of the “F” word. Ditto smoking, strong sexual situations, or whatever. Inform the parents and let them decide.

We could continue to automatically bar children from obviously pornographic movies (most of those now rated “NC-17,” formerly “X”) but theater owners would be free to sell tickets to other movies to all comers. Leave it up to parents to monitor their kids. If they don’t trust them not to see movies they’ve been told not to see, they shouldn’t be unsupervised at the theater, anyway.

via Matt Keller’s Facebook page

The Justice Department is investigating the leaks to the New York Times over the NSA’s secret electronic surveillance program.

Justice Department Probing Domestic Spying Leak (AP)

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.

It’s about time. Whatever one’s position on the appropriateness or even the legality of the program, we can not have people entrusted with classified information deciding for themselves that it should be made public. There are measures in place for people–certainly, the “senior officials” who the NYT sources for their story–to go to Congress and other oversight authorities.

Correction: Post title changed to a conform with the rules of English grammar.

Update: Like the full AP report (at least at the time of posting; they change repeatedly while keeping the same hyperlink and not noting what was in the original) the CNN and other accounts I’ve read so far have two sentences on the leak and then several paragraphs rehashing the surveillance controversy. One exception is the report from Fox New’s Greg Simmons:

Justice Department Opens NSA Leak Probe

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. One official has said the referral for the probe came from the NSA.

[...]

White House spokesman Trent Duffy on Friday, speaking to reporters from the president’s ranch in Crawford, Texas, echoed previous comments from the administration, saying that terrorists want to strike again and leaks put America in danger. “The fact is that Al Qaeda’s playbook is not printed on page one. And when America’s is, it has serious ramifications,” Duffy said.

[...]

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

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.”

[...]

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 Project and a lawyer who represents whistleblowers, told FOXNews.com. 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.

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.

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.

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.

The information revealed was almost certainly classified and the leakers were senior NSA officials, though, so Devine’s arguments are moot.

Around the Blogosphere:

• Michelle Malkin says “It’s about time” and offers some speculation on the political fallout.
• Steve Benen proves Malkin right on the latter.
• Jeff Goldstein believes, “What we are witnessing here is a battle that was a long-time in coming between a Republican leadership and the press.”
• Garance Franke-Ruta bets this investigation will be faster than the Plame case.
• Dan Markel notes the irony that “the NSA requests the DOJ probe and yet the DOJ officials claim that they need anonymity to leak news of this probe due to the ’sensivity of the probe.’”
• Digby snarks, “I assumethis also means that nobody from the White House will be able to comment in any way since there is an ongoing investigation.”

Josh Marshall has a copy of a July 17, 2003 letter from Senator Jay Rockefeller, ranking member of the Intelligence Committee, to Vice President Dick Cheney raising concerns about the NSA spying program. Most notably, he notes that he is “neither an technician or an attorney.”

This increases my sense that Kevin Drum is right when he observes, “It seems clear that there’s something involved here that goes far beyond ordinary wiretaps, regardless of the technology used. Perhaps some kind of massive data mining, which makes it impossible to get individual warrants?”

I have no reason to believe anything nefarious is going on here; indeed, I very much doubt it. But the president could easy have gotten approval from Congress in the aftermath of 9/11 to expand his ability to wiretap suspected al Qaeda terrorists operating domestically. The facts that AG Gonzales has dubbed this “probably the most classified program that exists in the United States government” and that the NYT held onto the story for over a year and then removed certain “technical details” [*] also speaks to the likelihood that this program involved some cutting edge technologies that the government would just as soon not have our enemies know about.

Via e-mailed tip.

[*] Update: In going back to source this, I see that my memory was faulty. Here’s the quote:

After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted. [emphasis mine]

So, the omitted details aren’t necessarily “technical”.

To the surprise of perhaps no one, Senators Arlen Specter and John McCain have jumped on this morning’s reports of NSA spying within the United States as another opportunity to grab the limelight.

Report of NSA Spying Prompts Call for Probe (AP)

Senate Judiciary Committee Chairman Arlen Specter put the Bush administration on notice Friday that his panel would hold hearings into a report that the National Security Agency eavesdropped without warrants on people inside the United States. “There is no doubt that this is inappropriate,” said Specter, R-Pa., calling hearings early next year “a very, very high priority.” He wasn’t alone in reacting harshly to the report. Sen. John McCain R-Ariz., said the story, first reported in Friday’s New York Times, was troubling.

[...]

“This is Big Brother run amok,” declared Sen. Edward Kennedy (news, bio, voting record), D-Mass. Sen. Russell Feingold, D-Wis., called it a “shocking revelation” that “ought to send a chill down the spine of every senator and every American.”

But, as the NYT story made clear, the Senate has long ago been apprised of the practice. Even Democrats like Jay Rockefeller knew about it. Indeed, the AP brings this up several paragraphs into the story:

The administration had briefed congressional leaders about the NSA program and notified the judge in charge of the Foreign Intelligence Surveillance Court, the secret Washington court that handles national security issues. Aides to National Intelligence Director John Negroponte and West Virginia Sen. Jay Rockefeller, the top Democrat on the Senate Intelligence Committee, declined to comment Thursday night.

So, if this was “inappropriate,” “troubling,” and “shocking,” why wait until it hits the front page of the Times to say something about it? Couldn’t they have held private hearings on this a year ago?

Update: An informed source e-mails and DC Loser comments below taking me to task for writing “the Senate has long ago been apprised of the practice” when, in fact, all I know for sure is that the Chair and Ranking Member of the Senate Select Committee on Intelligence had been apprised. A fair point. I was operating on the presumption, perhaps incorrect, that the leadership of the Judiciary Committe, which would have oversight responsibility on FISA, and the Armed Services Committee, which has oversight over NSA, would have been similarly briefed.

Kevin Drum reports:

Huh? Harry Reid has invoked Rule 21 and placed the Senate into closed session to discuss the intelligence that led to war? What’s up with that?

[...]

UPDATE: Bill Schneider on CNN calls it a “full scale revolt” by Democrats.

1517: More from AP:

Senate Goes Into Unusual Closed Session On Iraq War (NBC4)
Senate Meets in Closed Session to Discuss Intelligence, Libby (WaPo)
Democrats Force Senate Into Iraq Meeting (Yahoo)
Democrats Force Senate Closed Session on Iraq Intelligence (LAT)
Democrats Force Senate Into Closed Session Over Iraq Data (NYT)
Democrats force Senate into unusual closed session (CNN)

Democrats forced the Republican-controlled Senate into an unusual closed session Tuesday, demanding answers about intelligence that led to the Iraq war. Republicans derided the move as a political stunt. In a speech on the Senate floor, Democratic leader Harry Reid said the American people and U.S. troops deserved to know the details of how the United States became engaged in the war, particularly in light of the indictment of I. Lewis “Scooter” Libby, Vice President Dick Cheney’s chief of staff.

Reid demanded the Senate go into closed session. With a second by Sen. Dick Durbin, D-Ill., the public was ordered out of the chamber, the lights were dimmed, senators filed to their seats on the floor and the doors were closed. No vote is required in such circumstances. “The Libby indictment provides a window into what this is really all about, how this administration manufactured and manipulated intelligence in order to sell the war in Iraq and attempted to destroy those who dared to challenge its actions,” Reid said before the doors were closed.

[...]

Sen. Trent Lott, R-Miss., said Reid was making “some sort of stink about Scooter Libby and the CIA leak.” A former majority leader, Lott said a closed session is appropriate for such overarching matters as impeachment and chemical weapons — the two topics that last sent the senators into such sessions. In addition, Lott said, Reid’s move violated the Senate’s tradition of courtesy and consent. But there was nothing in Senate rules enabling Republicans to thwart Reid’s effort.

Quite bizarre.

1528: Democrats Force Closed Session of Senate Over Intelligence Use (Bloomberg)

U.S. Senate Democrats forced a closed session of the Senate to address the Bush administration’s use of intelligence, a maneuver Republicans dismissed as a political “stunt.”

Democratic Minority Leader Harry Reid invoked a rule that requires a closed session on the Senate floor in which the galleries are cleared of visitors, to discuss whether the Bush administration’s use of intelligence before the Iraq War should be the subject of congressional investigations.

Senate Majority Leader Bill Frist called the move “an affront to the leadership of this grand institution.”

If Reid doesn’t have more up his sleeves than a publicity stunt, this will surely backfire.

Senate Goes Into Rare Closed Session (Fox)

The U.S. Senate prepared to go into closed session Tuesday after Democrats enacted a rare parliamentary rule forcing the shutdown of the chamber so senators could speak in a classified session about the lead-up to the war in Iraq. Senate Minority Leader Harry Reid (search) demanded the chamber be closed so they could hold a secret session that they say was prompted by “misinformation and disinformation” given by President Bush and his administration prior to entry into the war in Iraq.

[...]

Republicans, who were clearly caught off-guard by the maneuver, called the move “gutter” politics. Senate Majority Leader Bill Frist (search) of Tennessee said the chamber was “hijacked” by Democrats. “Once again, it shows the Democrats use scare tactics. They have no conviction. They have no principles. They have no ideas,” Frist said. “But this is the ultimate. Since I’ve been majority leader, I’ll have to say, not with the previous Democratic leader or the current Democratic leader have ever I been slapped in the face with such an affront to the leadership of this grand institution.”

Senate Select Committee on Intelligence Ranking Democrat Jay Rockefeller said Democrats were promised by committee chairman Pat Roberts that oversight would be conducted on the war, but nothing has been done yet.

Durbin said Democrats want to discuss launching “phase two” of a committee investigation into whether Bush and the administration misused data to justify war in Iraq. “The purpose of this closed session in the Senate chamber is to finally give the truth to at least the members of the Senate, to finally call to task the chairman of the Senate Intelligence Committee,” said House Minority Whip Dick Durbin of Illinois.

A closed session is called when any senator demands one and a second motion is made. No vote is taken on whether to close the session. The last time a closed session was held was 25 years ago, Rockefeller said.

Republican Sen. Trent Lott, the former majority leader, said that the rule had been invoked two or three times under his tenure as majority leader, but only after a pre-arranged, negotiated discussion. “This is not the way it has been done,” Lott said. “We would never surprise each other … This is very unfortunate for the Senate. It’s not to say there isn’t important information to be discussed … but I’m astounded by this.”

Since the Libby indictment has already called attention to the intelligence and use of intelligence that led up to the war, it’s not clear what Reid and Co. hope to accomplish. Certainly, this only adds to the already bitter tone of the Senate.

(16oo:) Oh, me. Kevin Drum updates:

Here are the talking points emailed out by Reid’s office:

* Most important decision a President makes is to put American lives at risk and go to war.

* Many of us supported the decision to invade Iraq based on the national intelligence presented at the time.

* Over the past few months, and vividly last Friday, we’ve learned that we were given bad information. Americans were intentionally deceived.

* White House indictments confirm Republicans tried to silence critics and cover up the real intelligence.

* America deserves answers. National security is at stake.

* If mistakes were made, we need to know. Otherwise, we are doomed to repeat them.

* Republicans committed to investigate how national intelligence was used to set the stage for war.

* Now, they are refusing to keep that commitment. What are they afraid of America learning?

* Republicans must come clean. It is our shared responsibility to be straight with the American people.

* Stakes could not be higher. That is why we are demanding answers through an unprecedented closed Senate session.

* We will not let up until America gets answers.

* Together, America Can Do Better”

Reid has been elected to the United States Senate and risen to the ranks of Minority Leader, so it is not inconceivable that his political instincts are better than mine. Still, this strikes me as mindnumbingly stupid.

The president is doing very poorly in the polls for a variety of reasons, with Iraq being the biggest. The Libby indictment and continual speculation over Rove and Cheney will ensure that the hint of scandal surrounds the war and the administration in general for months to come. It seems that juvenile grandstanding on the part of his opponents will only serve to help the president.

(1633:) I would note, too, that it is not like there has been no investigation into this matter up until now. Aside from the special prosecutor, who spent two years on this, we have had at least one major commission report and a Senate Intelligence ommittee report. Not to mention a presidential election, an election for the entire 435 seats of the House of Representatives, and an election for one third of the Senate, to include the sitting Minority Leader (who lost).

Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction (March 31, 2005)

CHAIRMAN ROBERTS AND VICE CHAIRMAN ROCKEFELLER ISSUE STATEMENT ON INTELLIGENCE COMMITTEE’S REVIEW OF PRE WAR INTELLIGENCE IN IRAQ (Feb. 12, 2004)

(1446:) CNN TV is reporting that the Senate has re-opened for business.