Sunday, February 12, 2006

The Noose Tightens

The NYT begins to sweat as the criminal investigation into its treasonous publication of the NSA anti-terror program heads its way (my emphasis and ellipsis).
Federal agents have interviewed officials at several of the country's law enforcement and national security agencies in a rapidly expanding criminal investigation into the circumstances surrounding a New York Times article published in December that disclosed the existence of a highly classified domestic eavesdropping program, according to government officials.

The Justice Department took the unusual step of announcing the opening of the investigation on Dec. 30, and since then, government officials said, investigators and prosecutors have worked quickly to assemble an investigative team and obtain a preliminary grasp of whether the leaking of the information violated the law. Among the statutes being reviewed by the investigators are espionage laws that prohibit the disclosure, dissemination or publication of national security information.

The interviews have focused initially on identifying government officials who have had contact with Times reporters, particularly those in the newspaper's Washington bureau. The interviews appeared to be initially intended to determine who in the government spoke with Times reporters about intelligence and counterterrorism matters.

In addition, investigators are trying to determine who in the government was authorized to know about the eavesdropping program. Several officials described the investigation as aggressive and fast-moving. The officials who described the interviews did so on condition of anonymity, citing the confidentiality of an ongoing criminal inquiry.

How aggressively prosecutors pursue the new case involving the N.S.A. may depend on their assessment of the damage caused by the disclosure, (a former deputy Attorney General) said. "If the program is as sensitive and critical as it has been described, and leaking its existence could put the lives of innocent American people in jeopardy," he said, "that surely would have an effect on the exercise of prosecutorial discretion."

"Persons who have unauthorized possession, who come into unauthorized possession of classified information, must abide by the law," Judge Ellis said. "That applies to academics, lawyers, journalists, professors, whatever."

Some media lawyers believe that The Times has powerful legal arguments in defense of its reporting and in protecting its sources.

Theodore J. Boutrous Jr., who has represented publications like The Wall Street Journal and Time magazine, said: "There is a very strong argument that a federal common-law reporters' privilege exists and that privilege would protect confidential sources in this case. There is an extremely strong public interest in this information, and the public has the right to understand this controversial and possibly unconstitutional public policy."
There's no doubt that the spies who gave this information to the NYT were acting criminally - they will all have signed the equivalent of the Brit Official Secrets Act, which imposes criminal sanctions for the release of classified material. The magnitude of the crime depends on the damage, which in this case was substantial, since they tipped off the murders of 3,000 Americans that they were being monitored. That's a life sentence offense

The MSM lawyer is clutching at 3 very flimsy straws.

Public Interest

The administration is under no obligation to disclose everything it does to the public. Should it have disclosed the existence of the U2 spy-plane? The Stealth fighter? The breaking of the Japanese and German codes in WW2? Just because the programs were interesting? Of course not.


Only terrorists will consider the tapping of their phones "controversial".

Possible Unconstitutionality

"Possible" in this case means "in the opinion of the editors of the NYT". That doesn't trump the law.

So, good luck guys, and don't forget to pack a toothbrush!