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Justice Department Opens NSA Leak Probe

Friday, December 30, 2005

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

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.

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.

(Story continues below)

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"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.

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.

Bush said on Dec. 17 the NSA program was disclosed after information was "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.

The president has also described the leak as "shameful," saying the program's disclosure gives terrorists the upper hand.

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. 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."

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.

But within hours of reports about the leak investigation Friday, the American Civil Liberties Union released a statement decrying the government's actions, and calling for an investigation led by a special counsel.

"President Bush broke the law and lied to the American people when he unilaterally authorized secret wiretaps of U.S. citizens. But rather than focus on this constitutional crisis, Attorney General [Alberto] Gonzales is cracking down on critics of his friend and boss," ACLU Executive Director Anthony Romero said in a statement.

"Our nation is strengthened, not weakened, by those whistleblowers who are courageous enough to speak out on violations of the law," Romero said.

What's Next?

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.

"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.

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

"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."

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 FISA.

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.

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.

“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.

The Justice Department's investigation into the NSA domestic spying program isn't the first such leak probe and certainly won't be the last.

The Plame investigation has resulted in an indictment of former vice presidential chief of staff I. Lewis "Scooter" Libby on obstruction charges. Libby resigned, but prosecutor Patrick Fitzgerald has called for a new grand jury and continues to focus on presidential adviser Karl Rove's activities.

In the Plame case, syndicated columnist Robert Novak first published Plame's identity, but he has been quiet on who his sources were. Although Novak has not been called in to testify before a grand jury, he is believed to be cooperating in the investigation. No one has been charged in the actual commission of a crime related to the leak.

In another story published in November, The Washington Post revealed the existence of secret "black site" prisons run by the CIA in a handful of countries, including in Eastern Europe. That story has been referred to the Justice Department, and lawmakers also have planned hearings into the matter.

FOX News' Michael Levine and Anita Siegriedt contributed to this story.


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