Justice Department Investigating NSA Leaks

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.”
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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. cirby says:

    “Probing investigating?”

  2. ken says:

    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.

    But James, Congress is controlled by the same sort of people who would just suppress this information for political reasons. No, the patriotic thing to do is to claim ‘whistle blower’ protection and go to the press. The release of this kind of information regarding illegal domestic spying is not a matter of national security, it is a matter of national values.

  3. Fersboo says:

    No, the patriotic thing to do is to claim ‘whistle blower’ protection and go to the press.

    The manner of the leaks seem to the casual oberver to be optimized to create the most political damage, at the expense of protecting national security.

    Maybe the appropriate action would be to claim ‘whistle blower protection’ and go to the press, but not leak sensitive information. This way, if a whistle blower believes something to be illegal or unethical, said whistle blower has made the public aware without violating the law or national security.

    Given the fact that no one has explicity been able to provide any citation proving that this current administration has violated the law (I am thinking in the context of the wiretaps), the ‘whistle blower protection’ is a moot point. Unless it is appropriate to compromise national security because you think something is illegal and there is a Republican in the White House.

  4. ken says:

    The manner of the leaks seem to the casual oberver to be optimized to create the most political damage,

    Based on American values, I don’t think it would be possible to reveal that any administration was engaged in illegal domestic spying without their being significant political damage to that administration. I would hope we all can agree on that point.

  5. McGehee says:

    I would hope we all can agree on that point.

    We can indeed. Its relevance to this issue remains to be demonstrated.

  6. Ugh says:

    Given the fact that no one has explicity been able to provide any citation proving that this current administration has violated the law (I am thinking in the context of the wiretaps), the ‘whistle blower protection’ is a moot point.

    I give you Attorney General Alberto Gonzales:

    Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides — requires a court order before engaging in this kind of surveillance that I’ve just discussed and the President announced on Saturday, unless there is somehow — there is — unless otherwise authorized by statute or by Congress. That’s what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.

    Cleary the administration thinks that, absent the AUMF, FISA would require them to get a warrant and that they are acting illegally in not doing so. Unfortunately their reliance on the AUMF as authorizing the surveillance is dubious, as AG AG, perhaps unwittingly, admitted:

    Q — adequate because of technological advances? Wouldn’t you do the country a better service to address that issue and fix it, instead of doing a backdoor approach —

    ATTORNEY GENERAL GONZALES: This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past — certain members of Congress — as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.

    Or, in other words: we asked Congress if they would amend FISA so that we could do this and they said no, so we took the position that Congress had already authorized us to do this with the AUMF (and an assist from Hamdi ). This despite the fact that (a) FISA contemplates its continued applicability during war time; and (b) Congress amended FISA after the AUMF in the PATRIOT Act, so clearly they think it still applies.

    Finally, one would be more convinced of the administration’s concerns about the leakers if they had, you know, started the investigation a year ago when the NYTimes first threatened to publish the story. Now it just appears they want to punish people for embarrassing the administration.

  7. James Joyner says:

    cirby: Heh. The vagaries of posting software–the post gets titled based on the article I initially choose and then I edit it in a very small window.

  8. b says:

    What classified imformation could possibly have been leaked from this wiretap story? Basically all that was said was that wiretaps were being granted w/out going to the FISA court. Does this really matter in terms of sources and methods being revealed? Wiretaps are happening, we already know that from the NSA’s mission, and no names of speicifc people being tapped were mentioned. The outrage is just political cover for the president, because its certainly not based on an intelligent argument.