Posted on 12/19/2005 6:14:34 AM PST by tsmith130
Both Jed Babbin and the New York Sun's editorialist explain the likely legal background to the NSA program of electronic eavesdropping exposed in the New York Times story by James Risen and Eric Lichtblau last week. Risen and Lichtblau based the story on information provided by "[n]early a dozen current and former officials, who were granted anonymity because of the classified nature of the program." According to the Times, these current and former officials "discussed [the NSA eavesdropping program] with reporters for The New York Times because of their concerns about the operation's legality and oversight."
As Babbin and the Sun editorial make clear, however, the president appears to have followed the applicable law to the letter in authorizing the program. Risen and Lichtblau are obscure on the legality or applicable legal analysis regarding the NSA program. They write:
Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States - including American citizens, permanent legal residents, tourists and other foreigners - is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation. Risen and Lichtblau don't address the provisions of the Foreign Intelligence Surveillance Act that provide for warrantless electronic eavesdropping; they don't even mention FISA except by indirectly by reference to "FISA wiretap warrants" and "the Foreign Intelligence Surveillance court" (or "the FISA court").
From the Times story it is far easier to infer the illegality of the leaks on which it is based than to infer the illegality of the program itself. When the Times says that it granted its "nearly" dozen informants anonymity because the information they were leaking is classified, the Times is saying that they granted them anonymity because they were breaking the law. In order to get its story, the Times protected them from prosecution by concealing their identity.
The Times's informants appear to me to be reading the applicable law regarding their own conduct correctly. Federal law (18 U.S.C. § 798) prohibits the disclosure of several narrowly defined categories of information, specifically including classified information regarding communications intelligence:
a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
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(3) concerning the communication intelligence activities of the United States or any foreign government...
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Shall be fined under this title or imprisoned not more than ten years, or both.
The following subsection (b) makes clear the applicability of the act to the informants and information related to the Times story: The term "communication intelligence" means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;
The term "unauthorized person" means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.
Despite the vague insinuations of Times story, it is at best unclear whether the described NSA program violated any law. It is, on the other hand, altogether too clear that the Times story itself involved an epidemic of lawbreaking among current and former government officials. Here is a scandal hiding in plain sight, though it is not a scandal that the Times chooses to report. Who will blow the whistle and demand that the malefactors be brought to account?
UPDATE: Bob Owens addresses today's Risen and Lichtblau story at Confederate Yankee in "Risen's new lows."
Where's the Special Prosecutor?????
Should we try them together, or as individual weasels?
What news conference?
President Bush is having a Press conference at 10:30 am (ET)this morning. See Breaking News sidebar.
I hope the President unloads on the New York Times this morning and demands an complete investigation of who leaked this info to them. It is past time for his administration to grab the bull by the horn, and start going after the leakers. They have done major damage to our security, and should be shot! I'm really mad about this and want something done now!!
Once again we have a situation where the media is granting anonymity to a leaker. If anyone in the government, either as an office worker or an elected official thought there were questions about the program, it should have been taken to the proper authority - not the media. By granting these people anonymity and by publishing this information, I would think they have all violated the Secrets Act and should be prosecuted.
I say again, if "whistle blowers" want to give tips, they must be made to do so in public. This "undisclosed source" nonsense promotes lies, gossip and in this case treason. There is sufficient anonymity afforded by the legal system to protect them. The media will soon find enough news without "undisclosed sources" to write about. Then maybe they can stick to writing the news and not making the news.
Perhaps Attorney Fitzgerald can call in the New York Times law breakers and let them explain why they continue to subvert our country. This criminal "stunt" by the NYT and the Washington Compost cannot be allowed to pass without prosecuting these traitors as well as the leakers in government who are intent on losing our war on terrorism.
File the charges. Have him arrested. Lock him up for 100 days if he won't talk.
That's because you actually have corporations that will ENFORCE the agreement. I'm holding out hope that happens here...but I'm not confident.
I have appointed a special prosecutor to investigate the leaks of classified information to the New York Times.
I think W put all of 'em on notice with his Saturday address. If their NOT shaking in their boots...they should be. I don't for one minute think this administration will let this die.
If an EO derived from the authorization of force in Iraq is what they have a problem with then why all the angst and finger pointing at the PATRIOT Act?
It looks like an instance of "watch the matador's cape, you dumb bull, while I get ready to stab you".
I don't remember this angst, except perhaps once, with BC's numerous EOs that were issued in his administration.
(just using it as an illustration, not dredging up the old...all past POTUS have EOs)
In this morning's press conference, the President said that the Justice department is investigating the leaks.
50 USC 1802 Permits Warrantless Surveillance
Posted by angkor
On 12/19/2005 4:25:09 AM PST · 58 replies · 1,249+ views
United States Code ^ | 12/19/2005 | Self
Throughout the "illegal wiretaps" debacle of the last several days we have not heard a single citation of the actual law that is alleged to have been violated. And that's from both the accusers (Rats, the NYT, WashPost, etc.) as well as Republicans, up to and including the White House staff (e.g., Condi Rice on talking head circuit, Sunday morning, where she did not cite the law in defense of the practice). Well, the fact of the matter is that the alleged "illegal surveillance" is not illegal at all. In fact it is specifically permitted under 50 USC 1802, and...
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