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The President didn't talk this over with Condi or Hadley last year???? I am sure they knew the information was out there...but as you say, no publication, no need to make a public case of it. I sure hope the DOJ started investigating this stuff at least 6 months ago.

I'm sure it was discussed in some circles before the NYT published - the question is into the nature of investigations before the NYT publisehd. I just assumed we were speculating on the timing of initiation of the "formal" DoJ investigation; and that would come from an NSA request, since it is NSA activity that was compromised.

E4. ENCLOSURE 4
DOJ MEDIA LEAK QUESTIONNAIRE

E4.1.1. If the media discloses classified information without proper authorization, the Heads of the DoD Components shall submit the DOJ Media Leak Questionnaire through security channels to the USD(I). In coordination with the DoD GC, the USD(I) shall prepare a letter addressed to the attention of Chief, Internal Security Section, Criminal Division, Bond Building, Room 9400, U.S. Department of Justice, 1400 New York Avenue, Northwest, Washington, D.C. 20530.

E4.1.2. There are eleven standard questions relating to unauthorized disclosures of classified information to the media that the Heads of the DoD Components must promptly answer to the fullest extent possible:

E4.1.2.1. What is the date and identity of the article containing classified information?

E4.1.2.2. What specific statements in the article are classified and was the information properly classified?

E4.1.2.3. Is the classified information disclosed accurate?

E4.1.2.4. Did the information come from a specific document, and if so, what is the origin of the document and the name of the individual responsible for the security of the classified data discussed?

E4.1.2.5. What is the extent of official circulation of the information?

E4.1.2.6. Has the information been the subject of prior official release?

E4.1.2.7. Was prior clearance for publication or release of the information sought from proper authorities?

E4.1.2.8. Has the material, parts thereof or enough background data, been published officially or in the press to make an educated speculation on the matter possible?

E4.1.2.9. Will the information be made available for use in a prosecution, and if so, what is the name of the person competent to testify on its classification?

E4.1.2.10. Has declassification been considered or decided on before publishing the data?

E4.1.2.11. What effect the disclosure of the classified data might have on the national defense?

http://www.fas.org/irp/doddir/dod/d5210_50.pdf

Media leaks are not the only ones covered in the above-linked document, and there is a duty to report any known leaks.

A request by NSA in itself would have to be investigated by DOJ to see if further investigation was necessary - that would take more than a couple of days IMO.

But it would be an investigation just the same. Given the high profile rebuke by President Bush, I can see the minions at NSA scrambling to make sure a proper request is before the DoJ, pronto.

There is no hint that the NSA knew of the leak before the NYT published), and the administration has said that it did not request the investigation, yet it was the administration that requested non-publication by the NYT.

I like to think the administration practices aggressive policing of leaks; and if it doesn, and is successful, there will be no public news of the policing.

But back to the timing of statup of this leak investigation, what are the ramifications either way? The damage is done, and honest prosecution will nail all of the people guilty of criminal activity in the leak. Meanwhile, the President is able to limit his information sharing to protect any additional secrets.

For instance-- Hamdi case is a case concerning whether or not he should be considered a US citizen because he was born here, they (SCOTUS) decided he was a US citizen and ruled that he should be given due process under the law, and not considered an "Enemy Combatant", correct?

There is no bar to this Nation's holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U. S., at 20. We held that "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of ... the law of war." Id., at 37-38. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. See id., at 30-31. See also Lieber Code, ¶ ;153, Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 Lieber, Miscellaneous Writings, p. 273 (contemplating, in code binding the Union Army during the Civil War, that "captured rebels" would be treated "as prisoners of war"). Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States," Brief for Respondents 3; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.

In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

This case gave a limited access then, to "due process" in an Article III court - a process wehreby the detainee could challenge being assigned the status of "enemy combatant."

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker.

At any rate, the Hamdi case is being cited by the DoJ (in the NSA case) for the proposition that the AUMF (authorization to use military force, granted by Congress) also gives authority to perform warrantless surveillance on the communications at issue. Just at the Court found that the AUMF authorized holding Hamdi as a possible enemy combatant.

As to the time when the investigation first started: note the ambiguity in the President's remarks (I presume it is moving forward=this investigation started before the NYTimes story: ...

The DoJ investigations are premised on a request, and the requests come from outside. The Plame investigation started with a request from CIA, where the CIA request was prompted by Novak's article.

Reports are that the NSA investigation was "instigated" by a request from the NSA. We don't know when that request was transmitted to the DoJ. Pukin Dog asserts that the investigation predates publication, based on inside information.

Would there be an arrest and prosecution if the story had not been published? I think that's a good question, because without publication, an arrest and prosecution would serve to publicize the existence of the program. That doesn't mean the investigation would wait, only that the results of the investigation would be closely held until if and when needed.

By law, the NSA is largely prohibited from conducting such domestic surveillance, and it is supposed to get permission in each specific case from a secret tribunal of federal judges formed under the Foreign Intelligence Surveillance Act.

Why draw the line there? If both ends of a terrorist communication are located inside the US, the limited surveillance would be ineffective.

Were they international or domestic? Or are they both? And does it make a difference? Inquiring minds want to know.

Reports resemble this ...

Since 2002, the agency has been conducting some warrantless eavesdropping on people in the United States who are linked, even if indirectly, to suspected terrorists through the chain of phone numbers and e-mail addresses, according to several officials who know of the operation. Under the special program, the agency monitors their international communications, the officials said. The agency, for example, can target phone calls from someone in New York to someone in Afghanistan.

Warrants are still required for eavesdropping on entirely domestic-to-domestic communications, those officials say, meaning that calls from that New Yorker to someone in California could not be monitored without first going to the Federal Intelligence Surveillance Court.

http://cryptome.org/nsa-spied-us.htm

This is a link to a .pdf of the letter that was sent to Senators Roberts and Rockefeller, and Congressmen Hockstra and Harmon of the Intelligence Committees on Dec 22. by William E Moschella, Assistant Attorney General

Link to the same letter in HTML form with links to most of the cited cases ...

http://www.freerepublic.com/focus/f-news/1545787/posts

Was digging for construction of the term "communication intelligence" and came across the Senate hearings from 1975. The current NSA issue resembles the SHAMROCK telecommunications interception program which operated from the 1940's until the 1970's.

http://cryptome.org/nsa-4th.htm
http://cryptome.org/nsa-4th-p2.htm

Unfortunately, Parker defines the terms "snarks, sasses and twits" far more broadly than we do. She means everyone outside the journo/intellectual elite.

LOL. Well, after observing the lack of substance in the piece, in combination with the tone with which she delivered her opinion, I conclude that Parker is a snark.

Everbody gets to make their own value judgements, that's the beauty of it.

So, here in VA, are we a police state, or more secure?

Tastes great!
Less Filling!!!

We can't silence them [bloggers], but for civilization's sake and the integrity of information by which we all live or die, we can and should ignore them.

From the article, I'd change your substitution to "We can't silence them [egogratifying rabble who contribute only snark, sass and destruction], but for civilization's sake and the integrity of information by which we all live or die, we can and should ignore them."

Fortunately, what the author advicates happens naturally, as most readers DO dismiss the snarks, sasses and twits. And so, the force of cross checking and citaton holds both the legacy media and the new media accountable for accuracy of fact, and intellectual honesty in analysis. Everybody wins!

A shield law for the press would create a "safe haven" for passing classified and otherwise sensitive information. Pass the information through a reporter, and the reporter asserts "shield law" to protect the spy on the inside.

There is no need for a shield law. As we saw in the Plame case, the name of the source is not published, but is kept secret (e.g., by the grand jury) unless there is a violation of law.

Jail the editors and fine the corporation.

IF there has been a violation of 798, the penalty is more than a fine. Note the mandaotry nature of the recitation in the statute ...

§ 798. Disclosure of classified information
Release date: 2005-08-03

(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-- ...

(3) concerning the communication intelligence activities of the United States or any foreign government ...

(b) As used in subsection (a) of this section--
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 ...

(d)
(1) Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law--
(A) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; and
(B) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.
(2) The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1). ...

18 USC 798

The NYT was a named party in the Pentagon Papers case, which touch expressly on the ramifications of a violation of 18 USC 798. You can bet your house that the NYT has concluded that publication of the existence of NSA surveillance is not a breach of the statute (I agree, because the exsistence of keyword searching was disclosed to the public in Senate hearings and in published court cases), and that extending that knowledge to the use of NSA facilities to target certain people in the US is not meant to be covered by the act.

I haven't researched that argument, but would enjoy seeing it litigated. And charging the NYT does not depend on any investigation - the publication "speaks for itself," and has indisputably occurred. The only question is whetrher or not the publication is in violation of the statute.

If it is, the NYT will be giving up printing presses.

What is the definition of "session"?

The dates that Congress plans to meet and do business. Congress is out of session now. The 1st session of the 109th Congress is over. When COngress reconvenes, it will be for the 2nd session of the 109th Congress.

Could arrests come before they go back to work?

Technically, yes. I'll dream right along with ya' if that's okay ;)

FDR sent all the Japanese Americans to interment camps for the duration of the war ...

- with the help and support of Congress
- only those that were located near the West Coast

Since the petitioner has not been convicted of failing to report or to remain in an assembly or relocation center, we cannot in this case determine the validity of those separate provisions of the order. It is sufficient here for us to pass upon the order which petitioner violated. To do more would be to go beyond the issues raised, and to decide momentous questions not contained within the framework of the pleadings or the evidence in this case. It will be time enough to decide the serious constitutional issues which petitioner seeks to raise when an assembly or relocation order is applied or is certain to be applied to him, and we have its terms before us.

Toyosaburo Korematsu v. United States, 323 US 214 (1944)

The issue of internment was confronted in Ex parte Endo, 323 US 283 (1944).

Korematsu's conviction was later overturned - see brief discussion at http://www.freerepublic.com/focus/f-news/1547700/posts?page=486#486.

I wish I could remember who it was I saw handle this statement the following way (I think it was Cheney), but I loved it. Cheney responded something like, "Spying on whom?" The reply, "American citizens." Cheney asked, "Which American citizens," forcing the questioner to admit that it was American citizens who are in league with Al Qaeda.

Asking questions like that is an excellent discussion technique. But it's not as fun as mud-slinging, name calling and general flame throwing ;-)

So even in a time of war, Henican views the media as the government's antagonist on national security matters.

Even a blind acorn finds a squirrel from time to time.
I view the media as antagonist too, FWIW.

This is a good time to reread the Pentagon Papers case -- NEW YORK TIMES CO. v. UNITED STATES, 403 U.S. 713 (1971).

793, and 794 for that matter, does not require the information be "classified" only that the information be "connected with national defense" and the release of it could be "used to the injury of the United States or to the advantage of any foreign nation."

Thanks for pointing that out. My typo of "793(a)(3)" should have been "798(a)(3)." 798 does include the word "classified" in the recitation of what constitutes a violation of that section.

793 & 794 recite a list of specific information, much of which can't be kept secret, and as you noted, 793 & 794 do not include the word "classified" in the recitation.

The question I was probing was that of NYT's exposure to criminal charges for publishing. The Pentagon Papers case is in the same vein as the recent publication of the NSA wiretapping allegation, in that regard, and of 793, 794 & 798, 798 seems to be the only section potentially applicable against the NYT.

The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 5 makes it a crime to publish certain photographs or drawings of military installations. Section 798, 6 also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems [403 U.S. 713, 736] or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. 7 If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they [403 U.S. 713, 737] publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

The same would be true under those sections of the Criminal Code casting a wider net to protect the national defense. Section 793 (e) 8 makes it a criminal act for any unauthorized possessor of a document "relating to the national defense" either (1) willfully to communicate or cause to be communicated that document to any person not entitled to receive it or (2) willfully to retain the document and fail to deliver it to an officer of the United States entitled to receive it. The subsection was added in 1950 because pre-existing law provided no [403 U.S. 713, 738] penalty for the unauthorized possessor unless demand for the documents was made. 9 "The dangers surrounding the unauthorized possession of such items are self-evident, [403 U.S. 713, 739] and it is deemed advisable to require their surrender in such a case, regardless of demand, especially since their unauthorized possession may be unknown to the authorities who would otherwise make the demand." S. Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 9 (1950). Of course, in the cases before us, the unpublished documents have been demanded by the United States and their import has been made known at least to counsel for the newspapers involved. In Gorin v. United States, 312 U.S. 19, 28 (1941), the words "national defense" as used in a predecessor of 793 were held by a unanimous Court to have "a well understood connotation" - a "generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness" - and to be "sufficiently definite to apprise the public of prohibited activities" [403 U.S. 713, 740] and to be consonant with due process. 312 U.S., at 28 . Also, as construed by the Court in Gorin, information "connected with the national defense" is obviously not limited to that threatening "grave and irreparable" injury to the United States. 10

It is thus clear that Congress has addressed itself to the problems of protecting the security of the country and the national defense from unauthorized disclosure of potentially damaging information. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 -586 (1952); see also id., at 593-628 (Frankfurter, J., concurring). It has not, however, authorized the injunctive remedy against threatened publication. It has apparently been satisfied to rely on criminal sanctions and their deterrent effect on the responsible as well as the irresponsible press. I am not, of course, saying that either of these newspapers has yet committed a crime or that either would commit a crime if it published all the material now in its possession. That matter must await resolution in the context of a criminal proceeding if one is instituted by the United States. In that event, the issue of guilt or innocence would be determined by procedures and standards quite different from those that have purported to govern these injunctive proceedings.

NEW YORK TIMES CO. v. UNITED STATES, 403 U.S. 713 (1971)
"The Pentagon Papers Case"

I assume that the NYT has a fresh legal opinion on hand, that concludes that the publication as fact that a certain sureveillance activity is going on does -not- constitute publication of a procedure or method used in the interception of communications. That is, that publication does not run afoul of 18 USC 798(a)(3).

The existence of "keyword" surveillance of international communications is not classified information. See cites to Jabara v. Webster, 691 F.2d 272 (6th Cir. 1982); Halkin v. Helms, 598 F.2d 1 (D.C.Cir.1978); and Hearings Before the Select Comm. to Study Governmental Operations with Respect to Intelligence Activities of the U. S. Senate, 94th Cong. at http://www.freerepublic.com/focus/f-news/1548460/posts?page=91#91.

There is no dispute that NYT published, nor is there dispute about the contents of the publication. If said publication is a violation of 18 USC 793(a)(3), then indictment can occur independently of any investigation into how the NYT obtained the information.

Anyway, I posted the part that pertains, IMO, to scummy Risen and the NY Slimes and that they are not immune from prosecution as Freeper angkor was saying. "Publishes" seems pretty clear to me.

A violation depends on what is published. Publication of classified information other than the four points listed would not be a violation of the section.

In the NSA case, it appears that the NYT may have published classified information concerning the communication intelligence activities of the United States, where 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.

Section 798 also has a mandatory asset forfeiture provision.

You snipped a relevant portion of section 798. I'm not sure how 798(a)(3) is construed.

§ 798. Disclosure of classified information
Release date: 2005-08-03

(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-- [you snipped the specific list that follows]

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes-- Shall be fined under this title or imprisoned not more than ten years, or both.

(b) As used in subsection (a) of this section--
The term "classified information" means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;
The terms "code," "cipher," and "cryptographic system" include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications;
The term "foreign government" includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States;
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. ...

18 USC 798

See also The Pentagon Papers Case, 403 US 713 (1971).