Action And Reaction

The WaPo has a long report on the Administration's war on leaks to the press:

White House Trains Efforts on Media Leaks
Sources, Reporters Could Be Prosecuted

By Dan Eggen
Washington Post Staff Writer
Sunday, March 5, 2006; A01

The Bush administration, seeking to limit leaks of classified information, has launched initiatives targeting journalists and their possible government sources. The efforts include several FBI probes, a polygraph investigation inside the CIA and a warning from the Justice Department that reporters could be prosecuted under espionage laws.

In recent weeks, dozens of employees at the CIA, the National Security Agency and other intelligence agencies have been interviewed by agents from the FBI's Washington field office, who are investigating possible leaks that led to reports about secret CIA prisons and the NSA's warrantless domestic surveillance program, according to law enforcement and intelligence officials familiar with the two cases.

Numerous employees at the CIA, FBI, Justice Department and other agencies also have received letters from Justice prohibiting them from discussing even unclassified issues related to the NSA program, according to sources familiar with the notices. Some GOP lawmakers are also considering whether to approve tougher penalties for leaking.

It is only down in the twentieth paragraph that the Plame leak is mentioned, and only as follows:

But the vice chairman of the same committee, Sen. John D. Rockefeller IV (D-W.Va.), complained in a letter to the national intelligence director last month that "damaging revelations of intelligence sources and methods are generated primarily by Executive Branch officials pushing a particular policy, and not by the rank-and-file employees of the intelligence agencies."

As evidence, Rockefeller points to the case of Valerie Plame, a CIA officer whose identity was leaked to the media. A grand jury investigation by Special Counsel Patrick J. Fitzgerald resulted last year in the jailing of Judith Miller, then a reporter at the New York Times, for refusing to testify, and in criminal charges against I. Lewis "Scooter" Libby, who resigned as Vice President Cheney's chief of staff. In court papers, Libby has said that his "superiors" authorized him to disclose a classified government report.

Others may recall that Democrats, led by Sen. Chuck Schumer, pleaded for an investigation into the Plame leak.  And the significance of that investigation is featured a bit more prominently in the current issue of the Atlantic:

Leak Prosecutions: The Gathering Storm

Some officials are itching to use the threat of long jail terms and massive fines to force reporters to finger their confidential sources.

The news media's ability to use leaks to keep the White House honest is threatened as never before by the unanticipated consequences of the investigation into the White House's own leaks of classified information to discredit a critic.

Some government officials are itching to exploit that investigation as a precedent for using the threat of long jail terms and massive fines to force reporters to finger their confidential sources. The precedent was set, ironically, by the special counsel investigating leaks by White House officials, including (we now know) Karl Rove and I. Lewis (Scooter) Libby.

This consequence of the Plame investigation was not exactly hard to predict - in fact, I made this very point in July of 2003, which suggests that I would wallop Chuck Schumer at chess.  Or checkers, even - heck, any game requiring the ability to look even one move ahead.

MORE:  Kevin Drum wants a Federal journalist shield law, but since he gets a check from the prestigious Washington Monthly, he probably would be covered by it.  Oh, I'm kidding, sort of, but who is a journalist, anyway?

Folks will like this from Kevin:

Historically, leaks have virtually never harmed national security in even a minor way, despite plenty of shrill commentary to the contrary.

Again, no mention of Plame.

UPDATE:  In a related story, the NY Times covers the AIPAC case, with its expansive interpretation of the Espionage Act.

Comments

[kim]

That 21st paragraph from the WAPO brings up a question. Did the reporter deliberately conflate the leak of Plame's name with the allusion to revealing classified information by Libby, or is he too stupid to know the difference. The justaposition suggests deliberation. I'll shield him from the consequences of his dishonesty? How?
===============================================

[Cecil Turner]

The precedent was set, ironically, by the special counsel investigating leaks by White House officials, including (we now know) Karl Rove and I. Lewis (Scooter) Libby.

And now The Master's™ brilliance becomes apparent, even to the infidels. Bwaahahaha [mustache twiddle].

[Beto Ochoa]

That Rockefeller guy just cracks me up. What the hell is wrong with the citizens of West Virginia? And for that matter, Massachusetts? Their choice of representation is an injury to the entire experiment.

[MayBee]

Dear President Bush-
Don't forget we own the presses. Mess with us, and you'll see what unfavorable coverage really looks like.

luv,
Downie & Keller

[kim]

A new variable has been added in W. Va. Rocky's gonna be down and counted out next round.
=================================================

[MayBee]

A Federal Shield Law is such a horrible idea. What might someone write, if they knew nobody could ever check the source they say he quotes? Conversely, what kind of garbage might someone feed a reporter, knowing he can never be revealed?

[Par R.]

Glenn Reynolds had another good take on this fevered WaPo story:

"But having made a big deal of leaks and their alleged harm to National Security in the Plame case, they're in a poor position to complain. Bill Keller's outrage is particularly out of place, and his suggestion that the Bush Administration is waging war at home on the values we profess abroad is just a political sound-bite: There's not even a right of journalists to protect leakers under the U.S. Constitution, despite journalists' representations, and doing so has hardly been a slogan on the war on terror. The tendency of the press to conflate its own desire for guild-like special privileges with the protections of the First Amendment is one of the reasons for its decline in trust and popularity."

Hearing someone from the New York Times talk about this issue is a bit like listening to Joseph Goebbels speak of the sad experiences of Jews in 1930s Germany. One needs only to look at some of the sad history of the NYT over the twentieth century to see how frequently they have favored their and others interests over America's. Think of Walter Duranty, their Pulitzer prize winning Soviet correspondent whose contrived and lying reporting in the 1920s and 1930s contributed to the deaths of countless hundreds of thousands of Russians through its false reporting to the outside world on the enforced starvation of some ten million Russians. Or think about the NYT's holocaust coverage, or more correctly, the lack of coverage until virtually the war was over.

Even today, long after publication of the Venona transcripts which indisputably proved the guilt of the NYT's and the Left's favorite "McCarthy victims," - Alger Hiss, Julius and Ethel Rosenberg - the NYT continues its periodic defense of these individuals with favorable articles at least two or three times a year.

It continues to amaze me that so many people continue to read the NYT and patronize those firms that advertise in it.

[Rick Ballard]

MayBee,

State shield laws are as bad or worse. They were inacted by cowardly legislators currying favor with the presse ancien when it still had power. There is absolutley no logical reason to extend a privilege to a trade without ethical standards and in particular to a trade or craft without means of enforcing those standards.

The inherent illogic is going to become glaringly apparent when a blogger who derives significant ad income from his site posts something absolutely scurrilous concerning a public figure in a state situation and then camps behind the press shield to ward off legitimate inquiry.

[Other Tom]

I am extremely happy to learn that these investigations are in fact underway, and that polygraphs are in use at the CIA. That place is a hell-hole of agenda-pushers, as is State, and some long prison terms would be delightful. Say what you will about Dubya, I don't think he'd hesitate for one moment to prosecute the New York Times.

[danking70]

"We do not want to inadvertently threaten human life or legitimately harm national security in our reporting," he said. "But it's important . . . in our constitutional system that these final decisions be made by newspaper editors and not the government."

Best line, IMO. I wonder what Article he's talking about?

Would like to know the "..." rest.

[Florence Schmieg]

This has been one of my pet peeves for a long time. The "profession" of journalism is no such thing and should not have special privileges under the law. Unlike medicine and law they have no rigorous entrance standards and licensing exams to pass before they can practice their craft. Once practicing it, there are no accountability boards, malpractice boards, nothing. Without such standards they cannot be given special protections. True professions police themselves first.

[clarice]

I thought this story was fun, too. How could they not have seen that train coming down the track, and is Rockefeller purelu disingenuous or just bone stupid?

Par R exactly. I thought I'd miss the features when I cancelled the NYT after having read it every day of my adult life. Not at all. In fact, everything in the paper now looks shallow and stupid to me, (Well I miss the double acrostics, but that's why there's a Plame case.)

[kim]

Remove the subjunctive. He is not going to hesitate to prosecute the NYT, and probably the Pinch and Bill Show personally, too. The gauntlets went down at the early December meeting and it's clear Pinch has maddened. Where's the board?
===================================

[topsecretk9]

I wonder if having been asked by the admin. to not print the NSA story, waiting then going ahead, if that makes it especially uncomfortable for the NYT's.

In this case, they were informed it would damage national security and disregarded that warning. Does that make a difference legally speaking?

[kim]

Yes. Bush has followed due process.
======================================

[sammy small]

I can see it now....frogmarched

[kim]

Bush could shutter the Gray Lady as seditious. Wouldn't that be fun? People WOULD still get the news.
==========================================

[topsecretk9]

Byron too!

"Too late, the Times and its allies realized that a terrible precedent had been set. Now some of them try to argue that the Wilson leak was an act of retribution, while the NSA and secret prisons leaks were the work of good-government whistleblowers, so one should be vigorously prosecuted while the others are ignored. It won't work. Leaks are leaks, and the NSA and secret prisons leaks were, by any estimation, far more damaging to national security than the Wilson leak. (In that case, the special prosecutor said in court recently that he did not intend to show that any damage occurred from the leak.)

So now there are more investigations going on. The Times and its supporters wanted this kind of thing. Now they've got it."

[topsecretk9]

Another irony. Schumer. Calling for an investigation for a so-called smear campaign, meanwhile 2 of his staffers are under investigation for illegally obtaining a credit report using the opponents social security number during op-research in order to use that to "smear" an opponent.

Can't make it up.

[danking70]

Powerline has interesting comments as well:

(there's more than 3 paragraphs and lots of links to...)

http://powerlineblog.com/archives/013326.php

Top secret

One of the deepest secrets in the exposure of the National Security Agency surveillance of al Qaeda-related conversations by the New York Times is that the publication of the story is itself a crime. Publication of the story violates, for example, one highly specific provision (18 U.S.C. section 798) of the Espionage Act that prohibits the disclosure of communications intelligence. Violation of the statute is a felony punishable by imprisonment up to ten years.

The "nearly a dozen" current and former government officials who leaked information regarding the NSA surveillance program to the Times violated the statute. So did the Times itself. Yet the Times has barely mentioned its own legal jeopardy in its continued reporting and commenatary on the story.

The Bush administration of course asked the Times not to disclose the existence of the surveillance program, but the Times proceeded to publish the story when it satisfied itself that it "could write about this program -- withholding a number of technical details -- in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record." Thus Times executive editor Bill Keller spake in his statement on the story. (We noted General Hayden's disagreement with Keller in "Crimes of the Times.")

[Dwilkers]

I'd like a special shield law for myself too. That way I could do anything I like and not have to worry about the law, or what's right, or my actions' impact on others, or any of the consequences.

I rate one at least as much any reporter.

[Rick Ballard]

Danking70,

Here is the text of the act itself. Fitz has been using 793(d) as his club (wrt Libby) in the Plame matter and perhaps 793(e) wrt scaring Novak into keeping his mouth shut.

Where I see the Times as being in very deep trouble is wrt 793(e) and in particular "which information the possessor has reason to believe could be used to the injury of the United States ". The President's meeting and request not to publish removes any "gee, we didn't have any idea" defense from the Times and particularly from Keller and Risen. Sulzberger has already said in interviews (lying through his teeth) that he didn't really know what was involved. That won't stand any scrutiny at all and if Pinch wants to try and deny then I don't know why he thinks any underlings wouldn't swap proof of perjury on his part for a bit less time in the hoosegow.

Btw - the President is not pushing this - it is a DoJ matter and better be pursued without regard to political implications. Let the wheels grind without political intervention. This isn't the Waco Massacre DoJ anymore.

[topsecretk9]

One thing I found interesting about this article was it's lack of info on the "possible" government sources.

I don't know if using "possible" is just funny of SOP (well they weren't private citizens just walking down the street), but if Jed Babbin has been able to sniff out some info on specific government sources you'd think the powerhouse WAPO could too.

And if the Plame matter is the measuring stick of coverage on identifying subjects of investigation then NSA subjects rate too.

[clarice]

Perhaps we should start digging thru the archives and pulling out the stuff in the NYT where they said how important it was to protect super duper secrets like Plame and how the prosecution should go on to the end of time until the leakers were prosecuted, etc.

We want to be able to act fast when the news of a gj being empaneled breaks.

[Beto Ochoa]

Well Clarice,
If they bring it on down to Austin, Ronnie Earle will impanel as many GJs as it takes. Why he'll even have previous jurors call the next lot to convince them to indict.
I've known Ronnie since 1972 when he was a traffic court judge. He was a real stand up guy. It seems the loss of power for Austin Clique was more than he could bear.

In a land of giants, past the port of Timbuktu,
Was a hero named Ronald, we all swore was true.
His conquests unnumbered,
His sword sheathed in truth.
His path unmolested,
His spirit aloof.

As all things are traded he traded his honor,
For a few pints of beer at the pub on the corner.
For a moment of conquest in search of control,
To seize the day from another poor soul.

So thus we're divided, and sold for a pence,
Our masters' obliging for self recompense.

[richard mcenroe]

"Historically, leaks have virtually never harmed national security in even a minor way, despite plenty of shrill commentary to the contrary."

So Kevin Drum doesn't give a damn about the CIA agents Agee and Leahy got killed with their leaks? Or, as another great Democrat once said, "Screw them."

[clarice]

The arguments--arrogant aren't they?--that the press, not the Executive must have the power to decide which information harms our defense is just another instance of the left's constant effort to separate power from responsibility. When Sulzburger and Keller police the borders and airports and get voted out of their office (and stock options) for failing to do thst job, they may have a point. But we all know that they will print anything no matter how damaging for the bucks it brings in and attack viciously the President for any failures occasioned by those leaks.

[Rick Ballard]

Clarice,

If the Times is convicted (or possibly without a conviction) and a terrorist attack occurs I would think that the Times would have brand new owners fairly quickly. I wonder how their casualty underwriters are looking at this liability exposure.

I immagine that a statement from the NSA subsequent to an attack that said: "We had the group under surveillance up until the publication by the NYT of the general surveillance teghniques being used." would cause every PI & class action attorney in the United States to start a search for clients damaged by such an attack. $4B isn't a huge kitty but it's not tiny either.

[clarice]

Now there's a thought. Let's find out who are their underwriters and drop them a line in case they overlooked this.That could be a more effective and faster way to reduce revenues than a boycott.

[Sue]

Rick,

I know you see this as a political issue, but I see it as a national security issue, one the president has every right to be involved in.

[maryrose]

Full speed ahead with the investigation. The NYT needs to be brought to its knees on this. They were warned, it's all about money{specifically Risen and Rocky have to be held responsible as well as editors of the NYT.} No holds barred. They{NYT} have gotten arrogant and power hungry since Jayson Blair fiasco. Comeuppance is long overdue.

[Sue]

"Historically, leaks have virtually never harmed national security in even a minor way, despite plenty of shrill commentary to the contrary."

Obviously, Mr. Drum didn't write the copy for Fitzgerald.

[Gary Maxwell]

Do these guys ever bother to read their own prior editorials? Does the editorial board change so much in three years time that there is no corporate memory of positions taken? I am asking but of course I think the answer is that they know they are being mendicious. Dont they expect to be taken to task for it? How does word leak through to unsuspecting readers? Blogs yes but it seems there are still a great mass who have no clue but if they did would find it massively insulting to their intelligence.

[topsecretk9]

Oh man. I bet Rockefeller really wishes he had a rock to hide under, there is his secret (only to he and the NYT's) handwritten letter... and this this just keeps popping up like a bad penny (and I bet the penny has found it's way to FBI investigators pocket too!)

"The approach outlined above seems to offer the best prospect for exposing the administration's dubious motives."

[Neo]

A good yardstick to measure all of this is Watergate.

Just how many classified documents did Woodward and Bernstein leak as part of their Watergate coverage ? I could be wrong, but hardly any, if any.

Now, contrast that with the NYT story on NSA surveillance program. The government should bring a tort in federal court to recover costs of lost assesses.

[Gary Maxwell]

Someone find Mr. Drum doing his college cheerleader routine for the appointment of Fitz to invest a leak of "national security". I am betting it wont be hard to find, as he is genrally quite predictable.

[noah]

OT...But Russert really showed his ass today in grilling Gen. Pace on MTP. I think he brought up every conceivable Dim talking point.

I've concluded we are stuck with the chicken little press until the disparity btween the "reality" in Iraq as portrayed by the press and reality will be too glaring for the public to ignore.

[Gary Maxwell]

I am betting on a crow dinner for Mr. Drum of some vaguely familiar "shrill commentary".

[clarice]

It would be wrong, but--I expect the way to make the paper sweat even more is an ad in the American Trial Lawyers of America mag indicating we have compiled a brief of (a) all the NYT's security leaks and (b) their editorials railing against how such leaks damage national security, and (c) how those leaks made defending against such terrorism more difficult. We include this: In the event of another attack lawyers may find this compendium useful in any lawsuit naming the paper as a defendant .(How much should we charge for this?)

[topsecretk9]

Do these guys ever bother to read their own prior editorials?

A cocoon, ignorance or arrogance? Or maybe they've just come to terms with their multiple personality disorder.

Hmmm...what's my opinion today?

[Other Tom]

I love Keller's reference to the "tone of gleeful relish." Couldn't have expressed my feelings any better than that. And a note about "whistle-blowers": there is a specific federal statute specifying what a government employee is to do when he feels that a given practice related to national security intelligence violates the law. It specifies the individuals the employee is to notify, and the New York Times is not included.

[topsecretk9]

Gary
there is a couple more options...

Or maybe they've just come to terms with the declining readership so they figure no one will notice...or the old op-ed's reside under lock and key behind that smashing success Times Select ( Times Select had some built in advantages in case it didn't take off)

[clarice]

Kevin Drum--(took one minute on google and I grabbed the first):
Steyn, along with most of the right these days, spends nearly the entire column flinging mud at Joe Wilson, and I suppose I might do the same if I found myself in Steyn's increasingly uncomfortable shoes. After all, it's been obvious for some time, and is even more obvious now, that multiple people in the White House spoke to multiple reporters about Valerie Plame's CIA status even though that information compromised a potentially important covert operation. There's really no honorable way to claim that this is an OK thing to do, so the only option left is to try and divert attention away from that basic fact.

It's pretty sad when conservatives become so obsessed with protecting their own that they're reduced to claiming that outing a CIA agent is no worse than outing a Home Depot clerk. That's some heavy duty moral clarity for you, folks.
http://www.washingtonmonthly.com/archives/individual/2005_07/006743.php

Shooting fish in a barrel.

[Beto Ochoa]

Don't forget to a good faith attempt to tally the tax dollars and time wasted in pursuing these cases Clarice. A class action lawsuit might be in order.

[Rick Ballard]

Sue,

I don't see it as a political issue at all. It will neither hugely hurt nor hugely help either side no matter what the outcome.

I see it as an institutional issue and a matter of restoring confidence in the DoJ as not just a political tool. We have lost "politics stops at the waters edge" due to political exigency. We have lost all sense of the proper place and actions that lend respect to former Presidents. With the firing of all US attorneys by Clinton in '93 I began to lose all respect for the DoJ - as an institution. With Wilson's shenanigan - I lost respect for the CIA (and State's) ability to conduct themselves in a non-political manner.

I sincerely hope that the Times gets clobbered on the NSA leak in a manner never before seen. They deserve every bit of anything that befalls them. But I would lose some respect for the President and the Presidency were he to come forward and say much more than he has already. He pointed at the problem and he pointed at the culprits. Now it's time to let the wheels grind - and hope that they grind exceedingly fine.

Upon disposition of the case I believe that any President would be justified in making a statement - just not during investigation, charging and the trial itself.

[Sue]

Fair enough, although I am not advocating for Bush to make speeches about the investigation. Just to make sure the investigation is going forward.

[JM Hanes]

Amen to that, let them grind exceedingly fine.

[coolpapa]

Despite the Grey Lady's attempt to thrust her reporters into the lede, this is the most important news item:

"In recent weeks, dozens of employees at the CIA, the National Security Agency and other intelligence agencies have been interviewed by agents from the FBI's Washington field office, who are investigating possible leaks that led to reports about secret CIA prisons and the NSA's warrantless domestic surveillance program, according to law enforcement and intelligence officials familiar with the two cases."

Adding to what Rick said -

"This isn't the Waco Massacre DoJ anymore",

and hopefully the CIA and State, too.

[Rick Ballard]

"It would be wrong, but--"

Well if it's wrong we certainly wouldn't want to do it.

Very often.

So, how about a shareholder class action based upon management's failure to disclose a significant risk in it's 10K risk analysis? Those are always a lot of fun and it's not as if the President's warning didn't constitute warning of potential problems.

It would be worth buying one share just to send a letter to the board on that one.

[clarice]

Don't leave out the FISA judges themselves. Some of them are on my radar screen, too.