Are You A Good Leak, Or A Bad Leak?

The NY Times editors, with emotional support from Glinda, the Good Witch of the North, explain good leaks and bad leaks to the rest of us:

Given the Bush administration's appetite for leak investigations (three are under way), this seems a good moment to try to clear away the fog around this issue.

"Clear the fog"?  Why do I suspect the opposite outcome is more likely?  (And how does my involvement affect the odds...)

A democratic society cannot long survive if whistle-blowers are criminally punished for revealing what those in power don't want the public to know - especially if it's unethical, illegal or unconstitutional behavior by top officials.

Hmm.  What if what "those in power" are concealing are important national security secrets in wartime?  Who makes the call?  And how long can we survive if every disputed wartime decision is debated on the nation's front pages?

Reporters need to be able to protect these sources, regardless of whether the sources are motivated by policy disputes or nagging consciences.

Now wait - the Times is entitled to keep their secrets, but the government cannot?  Who died and made Sulzberger king publisher?  I understand the importance of running ads in the Christmas season, and I guess its easier to do that if a news story or two accompanies them, but why should we trust the Times?

This is doubly important with an administration as dedicated as this one is to extreme secrecy.

Fight fire with fire, and silence with silence.

The longest-running of the leak cases involves Valerie Wilson, a covert C.I.A. operative whose identity was leaked to the columnist Robert Novak. The question there was whether the White House was using this information in an attempt to silence Mrs. Wilson's husband, a critic of the Iraq invasion, and in doing so violated a federal law against unmasking a covert operative.

Well, that was certainly the question as framed by David Corn and Joe Wilson, and trumpeted by various partisan Democrats (Howard Dean, question 4, or others).

Bob Somerby noted that other framings were possible, as did Howard Fineman, who put the Plame leak in the larger context of White House-CIA tensions back in October 2003:

I am told by what I regard as a very reliable source inside the White House that aides there did, in fact, try to peddle the identity of Joe Wilson’s wife to several reporters. But the motive wasn’t revenge or intimidation so much as a desire to explain why, in their view, Wilson wasn’t a neutral investigator, but, a member of the CIA’s leave-Saddam-in-place team.

Or, from a different perspective, consider the absurdity of the media coverage of Wilson's role in the CIA-White House dispute in July of 2003.  Joe Wilson, distinguished retired ambassador, assures us that, in the dispute about pre-war intelligence between the White House and the CIA, it is the White House that is at fault.  Only in TimesWorld (where the experts on good leaks reside) would it be irrelevant that Wilson's wife works at the area of the CIA that is involved in the dispute.

Just try to picture this headline: "In CIA-White House Intel Dispute, CIA Spouse Vouches for CIA".  Compelling, huh? 

So why didn't the Times want to present their big Wilson guest op-ed that way?  Presumably they judged him to be a good leaker.  On the other hand, Walter Pincus of the WaPo got a leak on July 12, 2003 - here is how he characterized it (we strongly believe) on Sept 30, 2003:

The journalist, who asked not to be identified because of possible legal ramifications, said that the information was provided as part of an effort to discredit Wilson, but that the CIA information was not treated as especially sensitive. "The official I spoke with thought this was a part of Wilson's story that wasn't known and cast doubt on his whole mission," the person said, declining to identify the official he spoke with. "They thought Wilson was having a good ride and this was part of Wilson's story."

Mr. Pincus provided a more complete account in 2005, writing in the Nieman Watchdog:

I wrote my October story because I did not think the person who spoke to me was committing a criminal act, but only practicing damage control by trying to get me to stop writing about Wilson.

Advising a reporter that Wilson lacks credibility and objectivity may have been a motive of the Plame leakers, even if that did not occur to either Howard Dean or Joe Wilson.

As to the rest of the question posed by the Times - was there a violation of "federal law against unmasking a covert operative" - the Times lawyers concluded that the Intelligence Identities Protection Act had not been broken by the Plame leak.  Did they reach that self-serving conclusion simply because their own Ms. Miller faced a stretch in jail?  Impossible!  These are the disinterested Guardians of Truth. 

Well.  As to possible framings of the Plame leak, was it all sweetness and light at the CIA when they sent along a criminal referral to the Department of Justice?  Let's cut back to Howard Fineman:

And on Tenet’s part, it was time for payback—whatever his past relationship with the Bush’s had been. First, he and his agency had been humiliated, caught by the White House trying to distance themselves from the president’s speech. Then the CIA was forced to admit that it had signed off on the speech. Now one of its own investigations was coming under attack, as was one of its own undercover staffers.

Are we to believe that it was a routine matter for the CIA to forward to the Department of Justice a complaint about the leak of Valerie Plame’s name and job? Are we to think that Tenet didn’t know that the complaint was being forwarded? Or that Tenet couldn’t have shortstopped it if he wanted to?

And, although Mr. Fineman did not know this in Oct 2003, there has been no evidence offered that the Plame leak compromised national security; set against that is the "sloppy tradecraft" argument that, by allowing Joe Wilson to call attention to his own CIA consulting, and by failing to bring in the top talent to quash the story with a call to Novak's editor or publisher, the CIA revealed its indifference to Ms. Plame's "covert" status.  However, as a dirty trick to embarrass the White House, that criminal referral and the attendant hype worked brilliantly.  That said, if Lewis Libby had found his courage and skipped the weird spin to the grand jury, we could have moved on a long time ago.

Oh, well - the Plame leakers were evil.  Let's revert to the Times attempt to clear the fog:

There is a world of difference between that case and a current one in which the administration is trying to find the sources of a New York Times report that President Bush secretly authorized spying on American citizens without warrants. The spying report was a classic attempt to give the public information it deserves to have.

Can I opt out of this?  Please?  I don't want the Times deciding, in wartime, just what information I "deserve to have", thank you very much - they are not elected, they are not accountable, and frankly, I do not trust their politics.  But rather than abandon my fellow citizens to the mercies or depredations of the Bush Administration, let me offer a constructive suggestion - since we have a representative democracy, complete with institutional checks and balances and two parties, how about if the purveyors of classifed info, when troubled by their consciences, take their troubles to a Congressional oversight committee rather than the NY Times?

As an added bonus, that would actually comply with the legal requirements of the Federal whistleblower act as it relates to the intelligence community.  I am *NOT* a lawyer, but - here is some Senate debate from 1998 explaining that intelligence community whistleblowers are not covered by normal whistleblower protections laws.  However, Congress believed (sensibly) that the intel community ought to be allowed to bring their concerns to their oversight committees without fear of reprisal; sadly, for Times readers, I see no mention of newspapers as an alternative to Congressional oversight in the area of classified info:

Mr. SHELBY. Mr. President, I rise today to urge my colleagues to support the passage of S. 1668, the Disclosure to Congress Act of 1998.

This legislation directs the President to inform employees of the intelligence community that they may disclose information, including classified information, to an appropriate oversight committee of Congress when that information is evidence of misconduct, fraud, or gross mismanagement.

The committee is hopeful that this legislation will also encourage employees within the intelligence community to bring such information to an appropriate committee of Congress rather than unlawfully disclosing such information to the media, as happens from time to time.

It is imperative that individuals with sensitive or classified information about misconduct within the executive branch have a `safe harbor' for disclosure where they know the information will be properly safeguarded and thoroughly investigated.

Further, employees within the intelligence community must know that they may seek shelter in that `safe harbor' without fear of retribution.

It is not generally known that the Whistle Blower Protection Act does not cover employees of the agencies within the intelligence community.

The whistle blower statute also expressly proscribes the disclosure of information that is specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.

In other words, classified information is not covered by the current whistle blower statute.

Therefore, employees within the intelligence community are not protected from adverse personnel actions if they choose to disclose such information to Congress.

In fact, an employee who discloses classified information to Congress without prior approval is specifically subject to sanctions which may include reprimand, termination of a security clearance, suspension without pay, or removal.

As I follow the trail, it appears that S.1668 became S.2052 and was eventually enacted as HR. 3694.

So, in my world, we have a government, we have laws, we have an outlet for intel community whistleblowers - why couldn't these concerned citizens rally a few Congressman to their cause?  And let's note - the Democrats controlled the Senate Intel Committee from the Jeffords defection in 2001 until the new Congress was sworn in in Jan 2003.  What went wrong?  Find me a Dem with a voice and the courage to speak out!  What will Hillary say?  (Or is it possible that the oversight Dems encouraged these folks to go public, asserting that they could only help if the discussion was carried out on the front page of the NY Times?  The Times will never tell, but it could never be - these were good leakers, and pure of heart.)

Let's cut back to Times World for one last gasp:

When the government does not want the public to know what it is doing, it often cites national security as the reason for secrecy. The nation's safety is obviously a most serious issue, but that very fact has caused this administration and many others to use it as a catchall for any matter it wants to keep secret, even if the underlying reason for the secrecy is to prevent embarrassment to the White House. The White House has yet to show that national security was harmed by the report on electronic spying, which did not reveal the existence of such surveillance - only how it was being done in a way that seems outside the law.

What?!?  Now the Administration has to prove that national security was damaged before they criticize the Times?  Maybe the Admin should simply release some details of exactly which programs were compromised so the Times can front-page that - this just gets better and better.

The fact that Administrations often cite national security does not mean that national security is never at risk. 

Of course, the Times routinely cites press freedom in "explaining" their decisions - are they also crying wolf?  Never?  How can we tell?

UPDATE:  A picture is worth a thousand words.

Comments

[danking]

I've got a pretty good feeling that we'll soon be hearing Democrats and MSM pushing Tice's case in an attempt to supplant the NSA intercept one.

Bait and switch....

I wonder which Dems will be falling all over themselves demanding a committee meeting to hear this whistleblowers case.

Schumer definetely.

[clarice]

Does anyone recall any story of Gertz' which was solid? I am afraid I can't.

[topsecretk9]

dust this off and re-read --the anti-political ambassador! (the eeirie is in the tone and vernacular ---TM should notice!!!!!!! Sometimes he is quizzed by it)

Brent Scowcroft called me after it appeared and asked if he could take it over to the White House and share it with officials there.

The whole thing is an interesting re-read (and raises questions too!) but this one has been nagging ....um WHY did Scowcroft need to call and ask permission to SHARE A ARTICLE PUBLISHED IN A NEWSPAPER????

Just asking. No one else will though.

[topsecretk9]

Clarice...CHINA SPIES, Clinton...recent

[clarice]

How long, dear God, will we have to listen to the same gang of kooks, telling the same pack of lies to credulous blow dried journos..GOOGLE DAMNIT..I'm sick of this!

[topsecretk9]

NO ONE CARED Calrice...no one then and no one recently, when it was revealed.

See, Dems aren't vexed by any foreign security threats, emptywheels and hamsterwheels only CARE and HATE Rove, Cheney, Bush and the Neo-Con Cabal. Thats it. IT.

Now I am interested in knowing if their are or have been any FBI Counter-Espionage investigations going and they get wiretaps (somewhat) easily....

Bonus tinfoil- What would be a good way to "politicize" and "thwart" legal wiretap intelligence?

[clarice]

ts--gertz wrote a piece some time ago on discharges of people with security clearance, including Tice, and probably got the tip from him as a result of his sympathetic treatment of these people.

[larwyn]

Compare this at Powerline to my
comment here at 9:44PM that included excepts from her letter to
GW and DOJ from AP:

Rep. Jane Harman, ranking Democrat on the House Intelligence Committee, Dec. 21:

"As the Ranking Democrat on the House Intelligence Committee, I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda. I believe the program is essential to US national security and that its disclosure has damaged critical intelligence capabilities."

[topsecretk9]

and contrast my translation, pretty on, no?

[larwyn]

Yes, topsecretk9. But also responding to Danking's
"I wonder which Dems will be falling all over themselves demanding a committee meeting to hear this whistleblowers case."

He guessed Schummer in lead - but
Harman would have more cred and has more respect. So perhaps the move is to get the Pelosi,Reid,Kennedy,Schummer who talked GW's poll numbers up, out of
the floodlights. Harman would be good front for them - much better than Boxer.

[topsecretk9]

oh goodness, Boxer would be a ditzzaster ( I hope her ego gets in the way!)

Clarice,

Boy, July 17th was "prophetic" letter writing day!

[MayBee]

Ah yes, good job TS and clarice.

I knew I had heard Tice's name before and it was in Vanity Fair's article about Sibel Edmunds.
---
As I talked to whistle-blowers, I had the impression that those treated the worst were among the brightest and best. There could be no clearer example than Russ Tice, and 18-year intelligence veteran who has worked for the Pentagon’s Defense Intelligence Agency (D.I.A.) and American’s eavesdroppers, the National Security Agency. “I dealt with super-sensitive stuff,” he says. “I obviously can’t talk about it, but I had operational roles in both Afghanistan and Iraq.”

It was at D.I.A. in the spring of 2001 that he wrote a report setting down his suspicions about a junior collage, a Chinese-American who Tice says was living a lavish lifestyle beyond her apparent means. Although she was supposed to be working on a doctorate, he noticed her repeatedly in the office, late at night, reading classified material on an agency computer. “It’s not like I obsessed over the issue,” Tice says. “I did my job, and then 9/11 happened, and I was a very busy boy.”

----
Follow Graydon Carter! He probably has a bead on the Risen's whistleblower, too.

[Cecil Turner]

Clarice, any of those connections to the others that MacsMind is always mentioning like the VIPS and Rand Beers or the others that left the NSA - Richard Clarke's buddy????

Funny you should ask. Remember the Fox News story in 2003 asking for current CIA members to leak? Their aim:

VIPS say their appeals to CIA staff are an attempt to evoke another Daniel Ellsberg, who leaked the Pentagon Papers, a top-secret study on U.S. involvement in Vietnam.

One of VIPS's more recent letters (they apparently helped run Cindy Sheehan's Camp Casey) is signed by the VIPS steering group members: Gene Betit, Sibel Edmonds, Larry Johnson, David MacMichael, Ray McGovern, Coleen Rowley, and Ann Wright. Checking the NS Whistleblowers' membership list, I note entries for 4 of the 7:

Edmonds, Sibel, Former Language Specialist, FBI
Johnson, Larry, Deputy Director- Counterterrorism, Department of State; Analyst,CIA
MacMichael, David, Former Senior Estimates Officer, CIA
McGovern, Raymond L., Former Analyst, CIA

Also on the list, (file under the heading: "isn't that special?"):

Ellsberg, Dan, Former Special Assistant to the Assistant Secretary of Defense (ISA), DOD

[Dwilkers]

"Anyway, I hereby promise not to whine if the NSA leakers are prosecuted.

Just so you know where I stand, though, I'll say this: If the leakers are honest and forthright with investigators (unlike Libby) and the prosecutors are convinced that the leakers were motivated by genuine concern about government wrongdoing, I think they should exercise their prosecutorial discretion and decline to prosecute.

I suppose you don't see the conflict in this post AL?

In a post saying you promise not to whine, you pre-emptively begin whining. The law about whistleblowers doesn't qualify their prosecution based on how they feel. Somehow I doubt you feel like the Plame leak was ok depending on how the leakers "genuinely feel".

The law is the law. These people don't have a right to reveal highly classified government actions based on how they feel. One way you can tell how these people "feel", and what their motives are, is that they haven't gone public. That would be because they broke the law, a law that now subjects them to somewhere between 20 years and a firing sguad.

And they did this despite their being a mechanism in law for them to process their genuine concern if they feel such a thing. Instead they went to the NYTimes.

People with access to highly classified information do not have the right to reveal it to an adversarial press during wartime no matter what their genuine concerns may be as you interpret them.

I have a genuine concern Howard Dean is a lunatic. So what?

Good grief.

[Syl]

Another point to ponder and hypothetical.

Say someone in one of the services has suspicions that someone else is a spy for another nation and they decide they have to let the higher ups know. The higher ups rebuff them. What to do. What to do.

One of the problems these people have is that they do not know everything!

It's could be that who he thinks is a spy is really a counter-spy and higher ups are protecting that.

What do higher ups do about the lower guy who doesn't have the clearance to know that miss chan is really a counter-spy? They, well, blow him off.

Or maybe she is really a spy.

The thing is, the potential whistleblower who goes out to the public because his concerns were blown off may very well jeopardize more than he knows. Because he doesn't know everything.

All I'm saying, and I don't mean to imply that it's the case in the current discussion about anything, is that we cannot jump to conclusions and assume that a 'whistleblower' himself even has a clue.

[kim]

Very true, Syl, and presumably why the correct route is written into law.
===================================

[r flanagan]

Did scooter follow the correct route?

[Cecil Turner]

People with access to highly classified information do not have the right to reveal it to an adversarial press during wartime no matter what their genuine concerns may be as you interpret them.

Yes. If the leaks damage national security, and fail to comply with the law, they should be prosecuted. Further, if the leaks are mendacious (or political) and illegal, they should be prosecuted. The only prosecutorial discretion break that makes sense is for a leak that doesn't damage national security and results from pure motives. (And at first glance, this one doesn't appear to qualify on either count.)

[kim]

rf, don't you know, he wasn't whistleblowing.
==============================================

[Sue]

RF,

It would seem he didn't. Did you hear he is under indictment?

[fred lapides]

It would be useful if some of the people commenting read up a bit before making rash statements. Do we have congressional checks? Not any more since Bush, without consultation with Congress bypassed FISA. Did Clinton do the same thing with Eschelon? NO. All indiations are that that program did not spy on internal communications and used the FISA route.
Yes: it is helpful to discover how the Times got the story but then perhaps a whistleblower decided that one man deciding what is good for the entire nation (Bush) is not the best way to run a democracy. Now go after the leak, fine, but do not disregard what has been done, e3sp. in light of what we are learning today about spying on CNN!

[maryrose]

Dwilkers,
Very well stated and right on target. People need to understand how serious this is and stop PERSONALLY putting their own agenda first.

[Bill Arnold]

Seven Machos,
Are you sure Congress didn't know what was happening. A lot happens behind closed doors in the intelligence subcommittees.
Briefing intelligence (sub)committees about programs is not the same as drafting or adjusting legislation to make the programs letter-of-the-law legal.
[Of course I don't know whether Congress was adequately briefed or not.]

[maryrose]

fred lapides:
Are you sure CNN is the best source for truth, justice and the American Way?

[Harry Arthur]

fred, Do we have congressional checks? Not any more since Bush, without consultation with Congress bypassed FISA. And you know this how?

Actually, the preponderance of the facts to date are that the opposite is true. The most recent example being Pelosi's letter to the NSA.

It would be useful if some of the people commenting read up a bit before making rash statements. Good advice.

[kim]

Just out of curiosity, what is the correct procedure for lying to a Grand Jury? Is it encoded in law, like whistleblowing is?
================================

[BurkettHead]

If Professor Kerr's reading of Risen's book is accurate, it seems to me that the "technical details" disclosed in Risen's book should actually calm the fuss the NYT started by omitting "technical details."

Unless Tice - who wasn't involved with the program - provides other "technical details."

[topsecretk9]

Also on the list, (file under the heading: "isn't that special?"):
Ellsberg, Dan, Former Special Assistant to the Assistant Secretary of Defense (ISA), DOD

YUCK. YUCK. YUCK.

[Cecil Turner]

Briefing intelligence (sub)committees about programs is not the same as drafting or adjusting legislation to make the programs letter-of-the-law legal.

Let's see . . . The object of the exercise is to implement secret wartime communications intercepts. And you're suggesting the first step is to draft/adjust legislation. Does that really make sense to you? What do you think the debate will do to the odds of success?

Add in the fact that Rasmussen reports only ~1/3 of the electorate think the President's acts were illegal, or that civil liberties are taking a beating, and I'd suggest this issue, along with the Patriot Act, is going to come back to haunt Democrats in the mid-term election. As Dick Morris puts it:

Democrats drove voters back to his camp with their attacks on the Patriot Act and the administration's wiretapping policies.

Morris attributes it to isolationism, and points up the disparity between Iraq and domestic security issues. Jack Kelly suggests the Iraq issue depends on framing:

While a majority of Americans now think it was a mistake to have gone into Iraq in the first place, a larger majority thinks it would be a bigger mistake to cut and run. Rep. Murtha took the spotlight off the president and focused it on the Democrats, who have no "plan" for Iraq other than preemptive surrender.

[Obs]

Note that columnist Novak never "outed" Plame as a "covert" agent -- that's a media myth.

Here's Novak's orginal article, where he first mentioned Wilson's wife:

http://www.townhall.com/opinion/columns/robertnovak/2003/07/14/160881.html

The hysterics in the "mainstream" media over Wilson's wife are laughable...

[Immolate]

"His job at NSA was so top secret that he could not even reveal his title."

Russ Tice, Senior Intelligence Analyst & Action Officer, NSA

Guess he'll have to kill me now...

or not http://www.911citizenswatch.org/print.php?sid=530

[b]

Some points:

- The hypocrisy of this good leak/bad leak equiovcation is astounding. The NSA leak is prima facie illegal, has done everlasting damage to US intelligence and national security, and these shadow lurkers should be punished to the fullest extent of the law.

Let's have everyone at the Times get on record right now and terminate this nonsense of 'may have been illegal' and 'seems questionable':

Should a law be passed explicitly outlawing this program? YES/NO (circle one choice only)

- The nature of secrecy entails that the process of explicitly legislating the specific parameters of intelligence operations necessarily compromises their effectiveness. Therefore those who are calling for explicit delimiting of the authority and scope of the President in re intelligence are making a strategic mistake. That notwithstanding, the fundamental logic of Article II, Section 1 is that the executive authority is not enumerated and broad.

- This disclosure has undoubtedly damaged national security. That the Bush Administration has properly not made the damage worse by revealing further details does not equate to them being unable to demonstrate such, if they were morons like the NYT editors. Just because the idiots at the NYT are not aware, do not understand, or cannot glean strategic insight based on the lineaments of the program that have already been revealed does not mean that foreign intelligence services are just as helplessly ignorant and naive.

- The 72 hour refrain is a canard. Warrants issue through demonstration of probable cause. The technical nature of this program simply does not fit in the FISA framework.

[clarice]

Yes, b. And if the warrants could be issued without probable cause, the FISA court would be nothing but a rubberstamp formality or no consequence.

But this down as another lefty baseless "gotcha".

[Specter]

AL,

Had to speak up. You tried to pull a NYT on us a while back. You said:

They [my note: the NYT] did additional reporting and found evidence (12 sources in total) that many people within the administration were not convinced it was legal.

I assume you were speaking about the orginal December 16 article. But, that is not what they - the NYT - said. The actual quote is:

Nearly a dozen current and former officials...

No mention of "administration" there. Hmmmm...maybe they would hire you....

[JohnH]

During the McCarthy investigations in the 1950s abuses of Americans' civil rights included accusing innocent people of being enemies of America and dragging them through hearings that damaged their reputations so severely that many lost their jobs and endured financial hardships.

Today there has not been a single instance that I have seen in the press of an innocent individual who has suffered through the operation of this secret program. Yet many liberals I have talked with who appear to be normal, high-functioning adults who can operate a motor vehicle, purchase their own groceries and tie their shoe laces, are hysterical to the point of lunacy with regard to these issues. They say, and believe, that "our civil rights have been destroyed" and "Bush has assumed dictatorial powers" etc.

To see people who appear normal go bonkers when someone speaks the code word "Iraq" suggests to me that one of the subterranean caverns under New York City is being used by the Bush SS to brainwash NYT editors and other liberals so that they will bring down ridicule on their own cause. This is truly reprehensible.

[Wilson's a liar]

What galls me the most is that the self-appointed arbiters of my "right to know" at the NYT have decided that I have a right to know about a secret, government-approved, government-supervised surveillance program targeted at known and suspected terrorists, but I did not have a right to know that Joe Wilson was a lying blowhard set up by his CIA wife to take a boondoggle business trip to Niger at government expense.

I can certainly sympathize with the NYT editors and reporters and readers who agree that the public had the right to know about the NSA's warrantless surveillance program. But I have zero sympathy for anyone who says we did not also have a right to know about Valerie Wilson in order to make proper judgments about her husband's statements and his motivations in making the trip to Niger. And it makes no difference how Bob Novak or any other reporter got the information, it was and still is important information to the story, which is what newspapers USED to care about.

I wonder if these dopes at the NYT have any clue how much of a laughingstock their paper has become.

[Bill Arnold]

Cecil,
Let's see . . . The object of the exercise is to implement secret wartime communications intercepts. And you're suggesting the first step is to draft/adjust legislation. Does that really make sense to you? What do you think the debate will do to the odds of success?
The program has been in place what, 3 years? There has been time to delicately adjust legislation. Debate would likely be bipartisan, and concerned with civil liberties. Would the odds of success be reduced? I don't know. There are aspects of the debate, notably discussions of how to attack such a system, that would not be in our interest to have in public, and it might be hard to avoid such discussions. Democracy is messy.

Add in the fact that Rasmussen reports only ~1/3 of the electorate think the President's acts were illegal
You're probably aware that even the current Rasmussen poll's specific question about the president's actions ducks mentioning lack of judicial oversight/warrants, and in fact uses language different than the president's description of what he ordered. (Sure, "Two thirds of respondents said they were following the NSA story closely." Twenty/twenty-five percent of Americans believe the sun revolves around the Earth, or if you don't like that one for pedantic reasons, 50% believe humans and dinosaurs coexisted.).

You're right about framing. The administration seems to own the language about our involvement in Iraq. There have been reasonable democratic plans (at least as contentful as that document the administration put out last month) for benchmark-driven withdrawal from active combat in Iraq. They are ignored.

[Sue]

Geeze, Bill, tht is because 50% of us were raised watching Fred Flintstone. We know about co-existing with dinosaurs, okay?

::grin::

[clarice]

Frankly, Bill, I see this as yet another Dem attempt to mislead Americans by smooshing together half baked notions about privacy and Constitutional law to conjure up some Nixonian image. What's wrong Bushitler didn't work and now we move to plan (x) The King George version?

I put my faith in the good sense of the people especially now that all that bad info stovepiped from the DNC to the press has a counterweight, bloggers who care to dig for the truth.

[Bill Arnold]

Clarice,
What's wrong Bushitler didn't work and now we move to plan (x) The King George version? "Bushitler" is just stupid (and violates Godwin's law). "King George" is nearl y as silly (and the mad king george subtext makes it nearly as nasty).

Are you suggesting that the NYTimes story was "bad info stovepiped from the DNC to the press"? That's a serious allegation...

[BurkettHead]

I haven't read Risen's book, but, if Professor Kerr is correct in his interpretation, it seems that the "technical details" Risen supplies that the NYT omitted indicate that the NSA program is probably packet-sniffing, rather than data-mining or examining content in some other fashion.

Did the NYT fail to understand that these "technical details" indicate the NSA was examining information that is similar to the outside of an envelope, rather than the content sealed inside the envelope? Or did they understand that, but omit the "technical details" for other reasons? Like, for example, causing more of a furor by indicating that the NSA was steaming open all of those "envelopes" & poring over the content?

It may well be that publication of Risen's book will actually calm the situation as the "technical detaills" begin to emerge.

[clarice]

Yes, Bill, I am relatively certain that this story was cooked up on Capitol Hill and people like Tice are squid ink.

[Truzenzuzex]

Tom Maguire wrote, quoting from this debate:

In fact, an employee who discloses classified information to Congress without prior approval is specifically subject to sanctions which may include reprimand, termination of a security clearance, suspension without pay, or removal.

You do realize, of course, that the purpose of that law was to correct the percieved "problem" with intelligence agency "whistleblowers" being unable to disclose classified information to Congress.

The law you cite in this post made it legal for intelligence agency "whistleblowers" to inform certain Congress critters of classified information that may relate to:

50 USC 403q.d.5.G.i.(I) A serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information, but does not include differences of opinions concerning public policy matters.
(II) A false statement to Congress, or a willful withholding from Congress, on an issue of material fact relating to the funding, administration, or operation of an intelligence activity.
(III) An action, including a personnel action described in section 2302 (a)(2)(A) of title 5, constituting reprisal or threat of reprisal prohibited under subsection (e)(3)(B) of this section in response to an employee’s reporting an urgent concern in accordance with this paragraph.

Before this act, such disclosure would have been illegal.

However, the important thing is to note that disclosure of classified information under the "Whistleblower statute" is confined to:

50 USC 403q.d.5.D.(i) If the Inspector General does not find credible under subparagraph (B) a complaint or information submitted under subparagraph (A), or does not transmit the complaint or information to the Director in accurate form under subparagraph (B), the employee (subject to clause (ii)) may submit the complaint or information to Congress by contacting either or both of the intelligence committees directly.

...

G.(ii) The term “intelligence committees” means the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate.

You will note that "newspapers" or "New York Times" or "Washington Post" ect. do not appear above. Neither do "the American people", either individually or as an aggregate.

Which means, of course, that it's legal to blow the whistle if you disclose your classified data to Congress. But you can't blow your classified whistle to the New York Times and comply with the law.

[boris]

Democracy is messy

Since FISA is unworkable and strict observance would be flat out dangerous, what's the proper course of action?

(1) The president and majority party (via appropriate committees) in congress agree on a wartime course of action. Permission from minority party and judges is unnecessary. (That's both branches with war powers folks.)

(2) The president demands congressional revocation of FISA subject to open debate and filibuster.

Those claiming shoulda coulda woulda for option (2) need to understand there's no real difference between the two just as the AUMF is not constitutionally distinct from declaration of war. Therefore the obvious downsides to (2) make it the lesser option.

[Cecil Turner]

The program has been in place what, 3 years? There has been time to delicately adjust legislation. Debate would likely be bipartisan, and concerned with civil liberties. Would the odds of success be reduced?

How do you debate the law, and change it, without it becoming public knowledge? (Answer: you don't.) And once it becomes public knowledge, do you think Al Qaeda's communications procedures might possibly be modified a bit? (These guys may not be amongst the sharpest tools in the shed, but this is not a high standard.)

Rasmussen poll's specific question about the president's actions ducks mentioning lack of judicial oversight/warrants . . .

That argument was stupid when Rider made it, and it's still stupid. The issue is whether or not to require probable cause to believe the domestic end is an Al Qaeda agent before listening in to phone calls from Al Qaeda numbers. Rasmussen's verbiage is as fair as it can be and still ask a meaningful question. Judicial oversight--the FISA requirement to show probable cause to believe the receiver is also Al Qaeda--is impractical and effectively terminates the surveillance. Ditto for warrants. 2/3 of Americans thought it was a good idea, and I suspect listening to a bunch of lefties explaining how they're too stupid to understand why that's a bad idea isn't going to be very persuasive. But by all means . . .

[BurkettHead]

Isn't it marvelous that Tice is stepping forward right now? While Risen & the NYT prattle on & on about protecting whistleblowers, Tice can show them how to really follow the statute & take advantage of the protections that are already there.

[Bill Arnold]

Boris
(2) The president demands congressional revocation of FISA subject to open debate and filibuster.
No, that's choice (3).
(2) The president consults with intelligence committees in Congress and over the course of a year agrees on very slight language changes in the FISA act to be buried in all the rest of the text of the Patriot act. Nobody in the mainstream press gets worked up about it - a few libertarians (both right and left) try to muster up some outrage but it's hard to distinguish from Echelon.

Cecil,
That argument was stupid when Rider made it, and it's still stupid. The issue is whether or not to require probable cause to believe the domestic end is an Al Qaeda agent before listening in to phone calls from Al Qaeda numbers.
I respectfully disagree. The numbers are probably more like 50/50 if the question is properly posed. (I didn't say "stupid americans", I said "uninformed americans", but you're right it was cheap shot.) BTW, President Bush used the careful language "to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations." I take him at his word, but he doesn't define "known links" or "clear links".

And once it becomes public knowledge, do you think Al Qaeda's communications procedures might possibly be modified a bit?
The cheap response to this is "what exactly became public knowledge? That we were bypassing a secret court as opposed to not bypassing it?" The real issue IMO is that the whole program became broadly discussed worldwide. I continue to believe this could have been avoided.

[maryrose]

Tru:
Your comment " You can't blow your classified whistle at the NYT " was a hoot. Thanks for brightening my day.

[Syl]

Bill

very slight language changes in the FISA act to be buried in all the rest of the text of the Patriot act. Nobody in the mainstream press gets worked up about it

ROTF!

I continue to believe this [program broadly discussed worldwide] could have been avoided.

Yes, if (a)there was no leak or (b)the NYTimes hadn't printed it.

[Cecil Turner]

The numbers are probably more like 50/50 if the question is properly posed.

How could you possibly know that? And how would you suggest the question be posed? (Especially with the consideration that open Congressional oversight or individual warrants would not be feasible.)

The cheap response to this is "what exactly became public knowledge? That we were bypassing a secret court as opposed to not bypassing it?"

That we were listening in to communications with folks in the US without probable cause (i.e., all of them, instead of just those to suspicious US phone/e-mail addresses). That is a significant difference in scale and focus, which will likely prompt a corresponding shift in OpSec focus from our adversaries (assuming they have a measurable learning curve). I bet they do.

[Bill Arnold]

Syl, ROTF!. Well, if you prefer, you can have a 2B version where the mainstream press happens to get worked up about a three word change in FISA. It could happen.
(a)there was no leak I prefer this version, achieved by doing the surveillance letter-of-the-law legally so that people didn't feel the need to leak and/or the NYTimes decided there was no story.
There is also a
(4) - pass an Official Secrets Act.

Cecil
That we were listening in to communications with folks in the US without probable cause (i.e., all of them, instead of just those to suspicious US phone/e-mail addresses).
We were(are)? I've been assuming (this is completely serious) that the surveillance is limited to known terrorist-related networks of connectivity. Perhaps the program isn't as disclosed as we think?

[Cecil Turner]

We were(are)? I've been assuming (this is completely serious) that the surveillance is limited to known terrorist-related networks of connectivity.

On the other end. The warrant requirement is to show probable cause that the guy on the domestic end is an Al Qaeda agent. The way I understand it, the purpose of the new program is to tap all the overseas terrorists' calls to see who they're talking to over here. (As opposed to the FISA rule, which only allows them to tap the ones to known terrorists in the US, and a warrant scheme that limits practical usage due to onerous paperwork requirements.) This doesn't look like a hard call to me, nor does phrasing the question seem to be the issue.

[boris]

agrees on very slight language changes in the FISA act

No that's option (1). That's what happened, just without the back annotation.

That's all your side has ... the administration was too discreet on the back annotation. Transparent attempt at deception. Pathetic.

[Bill Arnold]

The way I understand it, the purpose of the new program is to tap all the overseas terrorists' calls to see who they're talking to over here.
That's not my understanding. Of course the traffic analysis is being done, that's a given, legal or not. The decisions about what communications to "listen" to are what don't map well to the 1978 FISA. [This is getting too close to discussing how to attack such systems.] Anyway, it's clear that reasonable people have radically understandings about what was disclosed.

[The Troll]

I stole a piece of your post the part about the 1998 bill to add to the piece I did on this thanks...

Credit was given of course...

[Cecil Turner]

The decisions about what communications to "listen" to are what don't map well to the 1978 FISA.

I disagree. FISA's pertinent provisions are quite clear. It allows warrantless monitoring to acquire foreign intelligence, provided:

[1802.a.(1)] (B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.

It allows monitoring with a warrant, provided we have probable cause to believe:

[1805.a.(3)] (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power

So here's the legal issue in a nutshell: you've got Bin Laden's phone tapped, and he calls someone in the US. Do you listen in, or not? Under FISA, you have to hang up, because: 1) there is a substantial likelihood that a "US person" will answer the phone, and; 2) you don't have probable cause to believe the person answering is an "agent of a foreign power."

Now, does that make sense to you? If so, I suggest you have joined the 26% in Rasmussen's survey who are, in my opinion, overly concerned with nuances of civil liberties at the expense of common-sensical warfighting. And I don't believe the phrasing of the question is the problem for the 64% who think a strict interpretation of FISA is silly.

[BurkettHead]

Bill Arnold said: "Anyway, it's clear that reasonable people have radically understandings about what was disclosed."

I don't think we have an idea yet what's actually going on, so we have assumptions about what's going on, not understandings. Professor Kerr seems to think (based on his reading of Risen's book) that the program involves packet-sniffing, rather than data-mining. I'm not sure that explains the Brooklyn Bridge episode, though. That seems to involve picking up "Brooklyn Bridge" in some communications. Were those phone conversations, e-mail, text, or something else? Professor Kerr referred to 7,000 communications, most of which were international, & 500 communications involving US Persons. The NYT referred to an incident in which a US Person used a foreign cell phone in the US. I have no idea whether any of that's accurate or not.

It seems to me that it's a multi-faceted, multi-part program that does, at some point, involve, inadvertently or otherwise, surveillance of US Persons that would require warrants under FISA. But I don't know how often that happens, at what point in the program & whether they obtain warrants (under FISA or otherwise) when it does happen. It also seems that most of the initial monitoring is some kind of software or algorithmic sifting, sniffing, mining or sorting. I don't know at what point humans become involved (other than tweaking the algorithms). It doesn't seem to be a herd of NSA operatives with headphones. Senator Rockefeller thought it was all new technology. For the most part, it seems like he's right (new to him, anyway).

Based on the assumptions you make, you can conjure up a program that runs completely afoul of the Fourth Amendment & FISA, or one that is nearly compliant. Based on what litle we do know, the program seems to be OK under the Fourth Amendment, yet run into problems under FISA. Yet most of Risen's sources seem concerned about the Fourth Amendment, but not concerned at all about FISA.

The pieces don't fit together yet.

(do we need more leaks?)
(would those be bad leaks? good leaks? better quality leaks? or more accurate leaks?)

[Bill Arnold]

BurketHead, believe it or not I'm very uncomfortable about seeing disclosure of the details of these programs - they seem to be at least in part directed at very bad people. I just want the civil liberties issues addressed.

Cecil,
WIRETAP STUDY
The relevant question:

Should the Bush administration be required to get a warrant from a judge before monitoring phone and internet communications between American citizens in the United States and suspected terrorists, or should
the government be allowed to monitor such communications without a warrant?

Should be required to get a warrant ... 56
Should be allowed to monitor without a warrant ... 42
Not sure .. 2

Interview dates: January 3-5, 2006
Interviews 1,001 adults, 856 registered voters
Margin of error: +3.1 for all adults, +3.4 for registered voters

I think it might be slightly skewed to Democrats.

[Kate]

Slightly? Like 12% more Democrats than Republicans. Plus the question is wrong.

Foreign terrorists should be included.

Other than that AP/IPSOS continues to build on its fine reputation as a pollster.

[clarice]

Risen apparently also includes in his book how the Clinton era CIA accidently rolled up their own Iran spies and turned over nuclear plans to Iran.

Wonder why that didn't get more coverage?

[boris]

Bill Arnold ...

Currently with a legal wiretap on the local crime boss the FBI can monitor a call to the out of state hitman, alias Lefty Icepick, without also having a warrant on Lefty. Unless you are willing to demonstrate equivalent sanctimonious concern for Lefty's constitutional right to privacy by demanding FISA type restrictions on criminal investigation ...

(1) No monitoring without warrants for all other parties

(2) 72 hour retro warrants allowed "in emergency"

(3) Probable cause for retro warrant needs to be independent of monitored content

... nobody should take you seriously on this issue.

[boris]

Kate, the poll was hopelessly blinkered. The type of call of MOST interest is between Al Qaeda and a terrorist like M.Atta in the US, WHO IS NOT A CITIZEN. Excluding that category of surveillance in their poll renders it meaningless.

[clarice]

After the last election I decided to use Zogby as a classy substitute for the word SHIT.For that same purpose IPSOS is now a synonym.

[boris]

Not that anybody should take me seriously on any subject, still popular opinion, informed or not aside, these are the basics;

(a) The NSA program is consistent with FISA or can be made so by fine tuning the accepted interpretation of FISA.

(b) The NSA program is not consistent with FISA but compliance with an accepted interpretation of FISA would keep the country just as safe.

(c) The NSA program is not consistent with FISA but was necessary to protect the country.

If (a) there's no problem.

If (c) the only debate is to select the argument for overriding FISA that provides the maximum amount of agreement.

Regarding (b) ... I dispute "just as safe". If the argument is actually that compliance would keep the country ALMOST as safe, then be considerate and start your rant with the following:

Give Me PRIVACY or Give Me DEATH!

So the rest of us can preemptively dismiss the rest of the moonbat ravings.

[clarice]

As usual, well put, Boris

[boris]

Thanks Clarise. Your post above made me smile and this one made me laugh ...

IPSOS is a French owned polling outfit linked to and supportive of the crooks presently running that country. It produces partisan results for outfits like AP who want to run editorials on their news pages.

That rings so true.

[boris]

Ooops, how did that 's' get in there ??? Sorry 'bout dat.

[Cecil Turner]

I'm very uncomfortable about seeing disclosure of the details of these programs . . . I just want the civil liberties issues addressed.

I'm fuzzy about this "comfortable" v. "uncomfortable" thing. I think the leakers should be prosecuted. If they get off, fine, but they deserve their day in court. And since the cat's out of the bag anyway, by all means Congress should look at the issue and determine if the laws need revision. However, this is one of those shared areas of responsibility (between the Executive's authority to wage successful war, and Congress's authority "To make Rules for the Government and Regulation of the land and naval Forces") . . . neither branch has a monopoly.

The relevant question:

Well, speaking of misleading questions, don't you think that one qualifies? In the hypothetical case as outlined above, with a tap on a known foreign terrorist calling an unknown person in the US, the question misses on at least three key points:

• It isn't necessarily a "US citizen," merely someone in the US;
• It isn't a "suspected" terrorist, it's a known one (moreover, "suspect" has no meaning in wartime intel intercepts);
• A warrant is generally not feasible.

Perhaps a better way of posing it might've been:

Should the government be required to get a warrant from a judge before monitoring phone and internet communications between people in the United States and overseas terrorists, even if that means most terrorist calls won't be intercepted because it's usually not feasible to get a warrant?

If the answer to that was "yes," it'd mean something. The way it's asked, it doesn't, even if they'd managed a representative sample.

[clarice]

Maybe Tom can run a "make believe you're IPSOS contest" where we fashion a poll and a mix of people polled to get the result AP wants..

[Bill Arnold]

Cecil, your poll question is good, sans the italics (which would be hard to do over the phone anyway). I'd very much like to see the result.

Boris, with regards to this issue I'm completely arguing as a civil libertarian, not as a lefty, not as a Democrat.
I believe FISA should be/should have been modified to cover the technological changes since the 1978 FISA act, and that there was opportunity to do so consistent with the law.
So I'd pick
(d) The NSA program was not consistent with FISA, and the adminstration should have worked/should work with Congress to design a law or changes to FISA to allow for a program like the NSA program.

Give Me PRIVACY or Give Me DEATH!
is rather silly. First, it should be "give me PRIVACY and give me Death!". Second
we make tradeoffs between civil liberties and safety (freedom from danger) all the time in the country.

The first example that comes to mind: Until recently, drunk drivers in the U.S. were wrist slapped, even though they jeopardized the rest of us to the tune of 10 (extremely rough estimate) thousand deaths a year. Now they're punished, but there are countries with far more severe punishments (and/or restrictions on drinking), and there are still far to many people killed by drunk drivers. Jail all drunk drivers first offense, and this would be a safer country to live in.

Use electronic tracking devices to continuously monitor the speed and general compliance with traffic law of every car on the road (and automatically issue tickets), and this would be a much safer place to live.

[kim]

And BA, you know, the technology for that is already here.
==================================

[Bill Arnold]

kim, yes. The technology curve is breathtaking and once law enforcement has powers, taking those powers away is politically near impossible.

The drunk driving example is a little weak, but smoking analogies, or worse, a gun-control analogies (2nd vs 4th amendments), tend to be bad to attempt online.
Also, drunk drivers aren't active malevolent adversaries, and terrorists are.

[cathyf]

Given just who it is who has been the most enthusiastic creators of the government's huge regulatory machinery, it is kind of ironic that they are swooning over the idea of the NSA listening in on calls. Look, if you are a medicare beneficiary, the federal government is literally conducting surveillance up your ass with no warrant. (It's called your annual colonoscopy.)

Our government collects all sorts of information on us from medical records, detailed financial information, census records, etc., etc. We have passed laws that say that government employees who misuse the data are subjuct to disciplinary actions and/or criminal prosecution, delegated authority to enforce those laws, and gotten on with our lives.

Whether it's data mining, or foreign communications surveillance, why should we trust the NSA or DIA any less than we trust the IRS?

cathy :-)

[boris]

(d) The NSA program was not consistent with FISA, and the adminstration should have worked/should work with Congress to design a law or changes to FISA to allow for a program like the NSA program.

That falls under (c)

The NSA program is not consistent with FISA but was necessary to protect the country. The only debate is to select the argument for overriding FISA that provides the maximum amount of agreement.

Since we have no working time machines yet this can only be done going forward. So your (d) is just a bash cuz it wasn't done your way in the first place.

If it was necessary to protect the country it goes into effect immediatly. Congress committees were briefed and frankly any responsibility for fixing it up belongs with them. The president had other things to do and it was congress who created the FISA turkey in the first place. Where does the notion come from that if congress creates an unworkable turkey, constutionally doubtful, the president is responsible for getting it fixed?

Really now, you claim to be non BDS so why didn't your (d) read like this ???

The NSA program was not consistent with FISA, but was necessary to protect the country and Congress should have designed a law or changes to FISA to allow for the NSA program.

[clarice]

Here's a good piece on the subject:pettifogging nonsense

[boris]

Thanks, thats a good post from JPM. I really like this line ...

So far, however, nobody has adduced any evidence of abuse. Instead, what we see in the morning papers is rampant abuse of the evidence.

One for the scrapbook ...

No evidence of abuse but major abuse of evidence !