An Ongoing Leak Investigation?

Mike Isikoff reports that the investigation into the leak of the NSA surveillance program is apparently ongoing:

Aug. 13, 2007 issue - The controversy over President Bush's warrantless surveillance program took another surprise turn last week when a team of FBI agents, armed with a classified search warrant, raided the suburban Washington home of a former Justice Department lawyer. The lawyer, Thomas M. Tamm, previously worked in Justice's Office of Intelligence Policy and Review (OIPR)—the supersecret unit that oversees surveillance of terrorist and espionage targets. The agents seized Tamm's desktop computer, two of his children's laptops and a cache of personal files. Tamm and his lawyer, Paul Kemp, declined any comment. So did the FBI. But two legal sources who asked not to be identified talking about an ongoing case told NEWSWEEK the raid was related to a Justice criminal probe into who leaked details of the warrantless eavesdropping program to the news media. The raid appears to be the first significant development in the probe since The New York Times reported in December 2005 that Bush had authorized the National Security Agency to eavesdrop on the international phone calls and e-mails of U.S. residents without court warrants.

FWIW, per the FEC database Mr. Tamm gave $300 to the DNC in Sept 2004.  That's not much - who remembers Mary McCarthy, a sacked leaker who, with her hubby, gave $9,000 to Dems? - but let's keep it in mind.

MORE:  Clarice Feldman and AJ Strata have more background on Mr. Tamm, and lots of questions.

Comments

[kubob]

There's a blog comment from a Thomas Tamm from Nov 2006, critical of the Bush Admin not calling Iraq a Civil War in sarcastic terms. Same guy? If so he's a lib with the so called "Shadow Gov't".

URL:
http://thecaucus.blogs.nytimes.com/2006/11/29/the-civil-war-at-home/

[clarice]

A freeper found this letter from him to Media Matters.
It looks like Tamm is a Democrat or at least a big critic of the White House. With his complaints about the firing of the U.S. Attorney's, it's not hard to see him leaking to the press about the wireless phone taps.

Correspondence Corner:

Name: Thomas M. Tamm
Hometown: Potomac, Maryland USA

Dear Eric: Is not the administration's position that they would not permit the U.S. Attorney to prosecute a Congressional Contempt referral an implicit admission that they allow politics to impact prosecutions? They are admitting that they would interfere with the independent judgment of a prosecutor on a specific case. I suggest that this is precisely what the firings of the U.S. Attorneys are ultimately about. Yes, they serve at the pleasure of the president, but they do not prosecute at the pleasure of the president. The White House is guilty of taking the blindfold off lady justice, not just covering her breasts. I am a former DOJ lawyer, for what that is worth.

http://mediamatters.org/altercation/200707250008
Sure sounds like he was anti-Administration.

[Cecil Turner]

So, what are the chances we can hold someone accountable for a leak that actually harmed national security? Color me skeptical, but I'd be a lot more confident if he was a Republican with a bad memory, rather than a Democrat with a sob story.

[kubob]

Appears so, now a really good question would be who else is he linked to on the left? Schumer? Wilson? McCarthy? Leahy? Maybe Spector? And how much does this explain the left's mania for going after Gonzales? They want him out of the way to scuttle this investigation before it exposes them as assisting terrorists to make political points?

[clarice]

according to a document at DOJ, he received an award in 2000 which would indicate he was there during the clinton years.

http://www.usdoj.gov/archive/ag/speeches/2000/awards.htm

[RichatUF]

Office of Intelligence Policy and Review....

from the 9/11 Commission Rpt p.95 (?)

But the prosecution of Aldrich Ames for espionage in 1994 revived con-cerns about the prosecutors' role in intelligence investigations.The Department of Justice's Office of Intelligence Policy and Review (OIPR) is responsible for reviewing and presenting all FISA applications to the FISA Court. It worried that because of the numerous prior consultations between FBI agents and prosecutors, the judge might rule that the FISA warrants had been misused. If that had happened,Ames might have escaped conviction. Richard Scruggs, the act- ing head of OIPR, complained to Attorney General Janet Reno about the lack of information-sharing controls. On his own, he began imposing information-sharing procedures for FISA material. The Office of Intelligence Policy and Review became the gatekeeper for the flow of FISA information to criminal prosecutors.

I also remember that OIPR was the stumbling block in the Moussaoui case. So FISA seemed to be working fine prior to 1994, Gorelick et al decide to tweak it, and now it has become part of the problem. I think I'm starting to understand...and this guy Tamm just happened to be in that shop

[RichatUF]

This is also OT (way OT) but I saw [by way of NR] another Newsweek Article about "Global Warming Deniers" [fwiw here]

Should have posted this in the Gore thread but found the article interesting...

Since the late 1980s, this well-coordinated, well-funded campaign by contrarian scientists, free-market think tanks and industry has created a paralyzing fog of doubt around climate change. Through advertisements, op-eds, lobbying and media attention, greenhouse doubters (they hate being called deniers) argued first that the world is not warming; measurements indicating otherwise are flawed, they said. Then they claimed that any warming is natural, not caused by human activities. Now they contend that the looming warming will be minuscule and harmless. "They patterned what they did after the tobacco industry," says former senator Tim Wirth, who spearheaded environmental issues as an under secretary of State in the Clinton administration. "Both figured, sow enough doubt, call the science uncertain and in dispute. That's had a huge impact on both the public and Congress."

The vast anti-green conspiracy...maybe the Goreacle is going to run?

[Topsecretk9]

Suburban Washington - refers to Maryland? Virginia? or is the WA state - prolly a dumb question, but just wondering.

[clarice]

Md or Va...

[SunnyDay]

No wonder they're after Gonzales. This should get interesting.

[kim]

I rarely watch TV, but at a press conference not long ago, Bush answered a reporter's question about the Justice Department with these words 'If there has been wrongdoing at the Justice Department, it will be taken care of, like you would like'. And then he smirked at the reporter.

I knew then that Gonzales was safe, and Schumer not.
=================================

[kim]

And Tamm is missing the Constitutional point that in order to fulfill his sworn duty to enforce the law, the President must have executive authority over the prosecutors. This is will of the people we're talking about, here. Who is this damn Tom Tamm?
=======================

[kim]

Rich, google 'Gerlich and Tscheuschner'.
=========================

[narciso]

One wishes the intelligence world was half as ruthlessly effective as that portrayed in
Bourne dystopian view. A troublesome reporter, gets a leak, you target him in a train station; his source gets waylaid in Tangiers; Actually I don't wish the world was this effectve; otherwise I would actually fear all this typing; DOS attacks and the like. Ironically, experience has shown those attacks, to 'crush dissent' seem to happen to center right/anti-islamist sites from LGF to Jawa, Powerline
et al. People who have the resources and disposition to challenge islammists and liberals are targeted by ambitious power-mad special prosecutors (ie; Fiztzie after
Conrad Black, & Lewis Libby) Ironically, handmaidens to the Wahhabis like Joe Wilson, get sinecures all over the place.

In this world,there would really be chill wind, not the cool breeze faced by the Dixie
Chicks, Rosie O'Donnell and Charlie Sheen.
Having briefly skimmed thru Zinn's People's History; the McGuffy Reader for the likes of Damon & Affleck, one is struck how little
inconvenience, 'truth speakers to power', face in this world. From Emerson in the Mexican war, to the Copperheads and Confe-derate agents in the Civil War, to the Wobblies, Debs & Emma Goldman in the 1st WW 1, to the Internments, tribunals, & counter
subversive trials of the 2nd world war.
Moore, Sheehan,, Robbins, et al would be making the same complaints; but they would have some grounds. In truth, the reality is that the Pamela Landy like actions (or Sandstone Conspiracy if you like) of the McCarthy & Tamm, has compromised our
intelligence gathering networks, sundered open our detention facilities; made it likely that those 'poor blighted folks' at Gitmo. return to the battlefield in Afghanistan, Amsterdam & Allenwood, PA? the
world prefigured by last season's opening
scenes in '24.

[Topsecretk9]

you would think this would be good news..

In a front page note to readers this morning, the paper [NYT's] stated that the print edition they will hold tomorrow will be decidedly more compact.

Beginning Monday, the Times "will reduce the width of its pages by an inch and a half," to a 12-inch standard, the paper declared.

which equals even crappier news reporting - because lefts face it folks, that extra column width was a useful tool in subtly weaving in the Bush is the root of all evil in everyday stories like...

Bush's great economy has created a depressing environment for Teflon producers and so high end pan sellers such as Sur la table and William Sonoma are feeling the pinch, not to mention the nightmare for Hampton socialites.

Dem fundraisers. who rarely cook are beyond frustrated. Their sub-par coated omelet pans are leaving just a bit more burn than acceptable, although CeeCee and Binky privately admitted they never really eat but it was heavy on their mind the embarrassing ramifications to high profile fundraisers and self promoting parties.

Slipper Rokerfeller was especially chagrin at the thought at the humiliating offering at her upcoming grassroots-netroots "Let's get to know each other" breakfast next month.

"I mean it's just demoralizing, brown edged benedict placed in front of Arrianna Huffington? Are you kidding me? This war is just ruing the fiber of our country, it's insane"

Now? It only gets worse ...the headlines will be "Bush ruined School Bus tires" and "Bush hates Ladybugs"

[clarice]

narciso, even I can understand that post and I agree with it.

[Topsecretk9]

I'll be the first to admit I am actually surprised there really is a NSA leak investigation going on - and - since Newswee'sk sources are 2 lawyers close. I take it they are Tamm and his lawyer, what's his name, leaking again for sympathy .

I'm thinking that was Cecil's point.

[Sara]

Clarice: Did you see this news report on the crazy pants judge?

Judge could lose job over pants suit

WASHINGTON, Aug. 2 (UPI) --

A Washington administrative law judge’s legal feud with a dry cleaner over a missing pair of pants could cost him his job.

The panel that oversees administrative law judges in the District of Columbia plans to begin the process of removing him next week, The Washington Post reports. Sources on the Commission on the Selection and Retention of ALJs told the Post that the panel agreed unanimously Wednesday to send Pearson a letter notifying him he is not being recommended for a 10-year reappointment.

The commission plans to meet Monday to draw up a final draft.

Pearson became internationally notorious when he filed a lawsuit against Custom Cleaners and its owners, a family of South Korean immigrants. He sought more than $10 million, claiming that he was entitled to triple damages because the cleaners broke its promise of “Satisfaction guaranteed.”

The lawsuit was dismissed, and a source told the Post that the commission sees it as evidence that Pearson lacks judicial temperament. [Geez, ya think?]

“A judge has a right to bring a lawsuit like any other citizen, but he doesn’t have a First Amendment right to bring a frivolous lawsuit,” the source said.

[clarice]

I did, Sara. Here's the back story--the chief of that branch originally wrote a recommendation to retain pantsman.Pantsman then started a campaign against the chief. He then changed his recommendation to dropping him from the roster.

[Sara]

Via Drudge:

Al Qaeda Cell May Be Loose in U.S., British Plot Hints

Hmmmm. Pseudonym or not, emails should be traceable to the computer that received them, Yes? No?

[Sara]

Clarice, I posted about this on my blog with the heading "Cry Me a River." I hope this guy is totally publicly humiliated after what he pulled. Of course, I'm kind of biased since my d-i-l manages a string of 3 dry cleaning stores. When I first told her about this story, she turned white and went to work the next day and ordered all the "Disclaimer" signs redone and about 5x larger, more of them, and displayed all around each store everywhere a customer would have line of sight. She also told me that she had a nightmare that it was one of her stores being sued.

[Topsecretk9]

from Sara's link:

"hawala networks"

hawala? Does anyone know or is this a syntax brit thing, or am I just dumb?

[Topsecretk9]

Money laundering...wiki

Hawala (also known as hundi) is an informal value transfer system based on performance and honor of a huge network of money brokers which are primarily located in the Middle East, Africa and Asia.

[Sara]

FBI agents searched the home of former Justice Department lawyer Thomas Tamm last week in an effort to determine who leaked details of the warrantless eavesdropping program to the news media, Newsweek magazine reported Sunday, citing two anonymous legal sources.

A bit ironic. The anonymous leaker outed by the anonymous leakers.

So, if Tamm is the end source for the NYT leaked story, what kind of legal jeopardy is he looking at?

[clarice]

Everything you wanted to know about stare decisis --heh
http://www.americanthinker.com/2007/08/stare_decisis_not_quite_what_s.html>Schumer's full of it

Good night.

[Topsecretk9]

Sara --- are you, like me, saying it sounds like Tamm leaked 2ce?

[Neo]

"Almost all leakers are lawyers. That's the bottom line." That was former New York Times executive editor Howell Raines' response to an Aspen Institute ...

This story certainly fits.

[Rocco]

Hawala: An Alternative Banking System & It's Connections To Blood Diamonds, Terrorism, & Child Soldiers

More on Blood Diamonds from Keith Harmon Snow and Rick Hines

Where Do Diamonds Come From?

Tempelsman contributed some $500,000 to Clinton for president and he is currently backing Hillary. He traveled at Clinton’s side on the 1998 presidential Africa tour where his Botswana visit was not about an Okavango Delta wildlife reserve safari. Botswana’s President Mogae attended the 1999 Attracting Capital to Africa Summit in Houston, organized by the Corporate Council on Africa (CCA), the “who’s who” of multinational corporations. Tempelsman, as CCA chair, organized the summit, where 10 African heads of state met with half of Clinton’s cabinet and 200 corporate representatives. Tempelsman and the CCA organized the U.S.-Africa Business Summit in Africa in 2001, featuring DRC President Joseph Kabila, coordinated with an Africa Growth and Opportunity Act (AGOA) meeting involving President G. W. Bush and Secretary of State Colin Powell.

Peace Is War, Ignorance Is Strength

Maurice Tempelsman and Robert Rotberg are members of the Council on Foreign Relations (CFR). No contact between them? From 1999 to 2002 the CFR sponsored a series of panels titled “Roundtable on Private Capital Flows to Sub-Saharan Africa.” The panel director was Mahesh Kotecha and the chair was Maurice Tempelsman. At the time, Tempelsman was funding the CFR’s Africa Program. Panelists included Walter Kansteiner, Robert Rotberg, Frank Wisner, and Botswana’s President Festus Mogae.

“Tempelsman's role...as a middle person for the De Beers diamond cartel may have shaped every major U.S. covert action in Africa since the early 1950s.”

The Kotecha family runs illegal networks that pillage columbium-tantalite (coltan) from Congo. Walter Kansteiner—National Security Council African Affairs director under Clinton—is today director of Moto Gold, a company involved in Congo’s blood-drenched Ituri region, and the Kansteiner family of Chicago trades in coltan. Walter Kansteiner was the U.S. president’s “personal representative” to the G-8 Africa Process and he is a founding principal of the Scow- croft Group under Brent Scowcroft, former National Security Adviser to Bush I and Gerald Ford. Kansteiner also works for the Center for Strategic and International Studies Africa Policy Advisory Panel. Panelist Frank Wisner was also on the National Security Council under Clinton. Wisner’s father was CIA director of the Office of Policy Coordination. An early covert operations bureau, Operation Mockingbird, designed to infiltrate and control the U.S. media, was one of theirs. Frank Wisner —a USAID and state department official in Vietnam—was involved with the black-operations Phoenix assassinations program. Wisner’s co- directors of the American International Group include:

* Marshall Cohen, a director of the Bush-connected Barrick Gold Corporation and a Canadian government official
* Harvard Professor Martin Stuart Feldstein
* Clinton cabinet members William Cohen and Richard Holbrooke
* Carla Hills, NAFTA negotiator and director of Chevron-Texaco and the International Crisis Group, a flak organization active in all Africa’s hotspots

[clarice]

From AJ Strata:
"I found this on a google search for Thomas Tamm, Justice Department:

Equal Justice USA
Trial Attorney, United States Department of Justice, 1972-1974. Thomas L. Crowe, Baltimore, MD … Thomas M. Tamm, Rockville, MD. Assistant State’s …
www.ejusa.org/MD_law_enforcement_letter.htm - 15k - Cached

It is not much, but I assume this fits Tamm’s liberal leanings. Equal Justice is a liberal activist group:

Equal Justice USA was launched in 1990, building on several years of Quixote Center work opposing the death penalty in our home state of Maryland. Our purpose was to build public scrutiny and protest of human rights in the U.S. legal system abolishing the death penalty being a top priority.

I gather that includes abolishing the death penalty for terrorists too. Given the fact all references to Tamm have been removed it might be they are reacting to the breaking news. Actually, the site is starting to lose some of their pages as I copy them. This seems to be a clear indication they want to cover up their connections. "

[bio mom]

Wow!! I never thought about it before but you are all right. This may explain the crazed fury against Alberto Gonzalez!! I doubt it will happen, but I would love to see Chuck Schumer go down. I really would. Not a very Christian thought, I admit. But only a venial sin, I think.

[bio mom]

Wow!! I never thought about it before but you are all right. This may explain the crazed fury against Alberto Gonzalez!! I doubt it will happen, but I would love to see Chuck Schumer go down. I really would. Not a very Christian thought, I admit. But only a venial sin, I think.

[bio mom]

Wow!! I never thought about it before but you are all right. This may explain the crazed fury against Alberto Gonzalez!! I doubt it will happen, but I would love to see Chuck Schumer go down. I really would. Not a very Christian thought, I admit. But only a venial sin, I think.

[bio mom]

Wow!! I never thought about it before but you are all right. This may explain the crazed fury against Alberto Gonzalez!! I doubt it will happen, but I would love to see Chuck Schumer go down. I really would. Not a very Christian thought, I admit. But only a venial sin, I think.

[andycanuck]

There is also a report about Tamm at NewsBusters, along with a link to an excellent fisking of the Newsweek global warming hit piece.

[anduril]

"anonymous legal sources".

To get the search warrant the FBI would have had to provide probable cause to believe that materials relevant to their investigation were present on the premises as of the time they filed their search warrant affidavits and would remain there for at least the very near future.

During the Plame trial it became apparent that their are some misconceptions about classification of information. Classification is handled by Executive Order, not be the Espionage Act. In fact, I believe that Tamm would not be facing prosecution under the Espionage Act but under a separate statute that was enacted to rectify the Tribune case situation. Here's what I've written elsewhere, to try to put this in perspective:

It's important not to improperly conflate the Espionage Act with classification. What I mean is, information may be properly classified even though its release would not cause the type of harm to the national defense that is envisioned by the Espionage Act. N.B., the Espionage Act speaks of defense, not security, and provides a lengthy list of examples. An example may illustrate the distinction.

Releasing the identities of covert CIA operatives might or might not harm the national defense, per se, but it could well harm the national security interests of the United States because it would open those operatives to recruitment by other services or force us to terminate information gathering operations that are long term in nature rather than proximately related to the national defense. Such programs are properly classified, even though they cannot be prosecuted under the Espionage Act and are subject only to administrative sanctions such as firing. If you want to understand the whole business of classification you have to go back to the relevant Executive Orders.

Now, in the case of the leak we're discussing, there is a difference. One of the results of the Chicago Tribune case was that Congress passed a law criminalizing the leaking of information regarding such "technical collection" programs--which would undoubtedly include the current NSA programs that have been alluded to in the recent Gonzo hearings. There is a specific statute, therefore, to deal with this situation of leaking such information to newspapers, so the actual Espionage Act wouldn't necessarily come into play. The big difference is that, whereas under the Espionage Act the offender must intend harm to the United States, under the statute that I'm referring to the offender needn't have intended harm to the United States--he could, as in the Tribune case, have a political axe to grind. Suppose then that NSA were collecting information pertaining to countries that have no hostile intent toward the US--such information would nevertheless be national security information and properly classified, even though it doesn't strictly pertain to national defense. And, the release of information about such national security programs would be prosecutable--not as espionage but under the specific statute that criminalizes release of information about these types of programs.

[clarice]

Tamm works at the EqualJustice USA http://strata-sphere.com/blog/index.php/archives/4268.

quote]

Equal Justice USA
Trial Attorney, United States Department of Justice, 1972-1974. Thomas L. Crowe, Baltimore, MD … Thomas M. Tamm, Rockville, MD. Assistant State’s …
www.ejusa.org/MD_law_enforcement_letter.htm - 15k - Cached[/quote]

Equal Justice USA is funded by the Quixote Center through a George Soros grant.

http://64.233.167.104/search?q=cache:CmyIeREykD4J:www.soros.org/initiatives/justice/focus_areas/gideon/grantees/quixote_2006+Soros+Quixote+Center&hl=en&ct=clnk&cd=1&gl=us>The long arm of Soros

[anduril]

Here's the law I think we're probably looking at. Notice the disjunctive "or" which I've bolded--the offender need not intend harm to the United States to or to the advantage of a foreign power. It's sufficient that his disclosure of the information was to any unauthorized person [use your imagination here, and begin with the concept "need to know" firmly in mind] or was in fact prejudicial. Note too the type of information that is covered--looks like NSA stuff to me:

Sec. 798. Disclosure of classified information

(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 -

(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.

[narciso]

Speaking of leaks, what's the view on TNT's adaptation of Littell's The Company. The
'War in Peace' of the Cold War. It's gotten mostly rave reviews; one exception in Nancy
D. Smith, who pointed out that the scenes in Stalinist Russia were shot in that fuzzy
way that seemed to blot out the repression.
With the US scenes, the film noir filters
seemed to play; giving it a touch of "Good
Night & Good Luck" Clooneyesque doom to the
proceedings. Next up, the Hungarian uprising
and the Bay of Pigs; which will be compro-mised by the American Philby; who is so close to the main players, that the revelation will humble Angleton, to the core
even he will have been right in retrospect.
It's not Robin or Speedle, by the way; it's
the other one. Littell, who was a Cold War liberal; seems to have gone all moonbat in his latter years; which shows in his latest,
the Vicious Circle, which suggests the surrender of Jerusalem to sate the Hamas players. I wonder what Ledeen's & more importantly EJ. Epstein's take is.

[anduril]

If you compare 798 to the Espionage Act (793) I think you can see how much easier 798 is to prove due to the difference in intent--793 has a pretty high requirement in that regard.

Wikipedia has a nice discussion of classified information in general with some nice links:

Classified information in the United States

[clarice]

anduril--I blogged this and there is a great deal of interest in the story. Can I twist your arm to write up your views for an article? You have it already done in essence.

[cathyf]

anduril, I replied to you over on the other thread before I saw this discussion here. Some very basic set theory -- all information either should or should not be classified, and all information either is or is not marked classified. So the complete set of all information is:

1) should be classified, is (correctly) marked classified;

2) should be classified, is (incorrectly) not marked classified;

3) should not be classified, is (incorrectly) marked classified;

4) should not be classified, is (correctly) not marked classified.

So my assertion is that all information covered under 798 or 793 should be classified (is in category 1 or 2). There is other information which also should be classified, which is not covered under 798 or 793. But there is NO information covered under 798 or 793 which shouldn't be classified.

In the case of the TSP leaks, it appears that all of the information in question is in category #1, virtually all of it fits into the category #1 subset of things covered under 798. It also may be possible to argue that some of the info falls into an even smaller subset of stuff -- the stuff which is covered by both 793 and 798. But that last argument is a lot more questionable, and the whole purpose of passing 798 was to make those hard 793 arguments unnecessary.

Not to insult lawyers ;-), but this is a classic lawyerly table-pounding move. You are dealing with information which is properly classified AND is illegal to disclose. So, we turn to the old saw: "have the facts on your side, argue the facts; have the law, argue the law; have neither, pound the table." In this case, start up a completely irrelevant discussion of how sometimes things get marked classified when they shouldn't be.

[Ranger]

I have a feeling that some senior Dems are very concerned about what might come down next summer. One of the interesting aspects of this case it how a reporter obtained the contents of a letter so sensitive that it was hand written and only two copies existed (one in the office of the VP who was the addressee, and the other in the office of Sen. Rockafeller, who was the author). I seriously doubt that information came from the office of the VP.

Mr. Tamm may have been one of the original leakers, but there were confirming sources at the FISA Court and in the Senate who could become significant political liabilities if indictments were filed or unsealed in 2008.

[Ann]

Clarice,

Rush is talking about you! Congrats!

[clarice]

Thanks. A friend just emailed me that news. (To keep my stress levels from rising too high..I have no sound on my PC and I never turn on the radio or tv before the sun is over the yardarm so I'd have no way of knowing if people like you weren't kind enough to tell me.)

[crosspatch]

Clinton stacked the DoJ. Bush, in the spirit of trying to look apolitical has left those people in place. I would also suggest that the FBI is also pretty well stacked with partisans too. While it is probably too late in the administration now, I guess he should have done like Clinton and purged the DoJ when he took office. That would, however, set the Clinton precedent in stone going forward and every President going forward would have purged the DoJ as soon as they took office.

This is basically the fruits of Clinton's purge being exposed. FBI is probably just as partisan at this point too. I really don't have a lot of confidence in either organization as law enforcement operations so much as they are political hit squads at this point in time.

[Neo]

This is a bit odd, story about "the Document".

[cboldt]

List of leak statutes

I doubt the NYT has liability under 18 USC 798, and my conclusion has nothing to do with inability to find "intent to harm."

But if it is found guilty, if forfeits all the presses and material used to publish the story. NYT probably knows about this statute, having been a party in the Pentagon Papers case, and 18 USC 798 being cited by SCOTUS.

"Communications intelligence" is defined elsewhere in the statute, and snooping policy does not represent communications intelligence.

brief citation for the proposition that disclosing a POLICY of snooping does not violate 18 USC 798, but that if a violation of 18 USC 798 is found, the penalty is forfeiture.

The leaker may have broken other statutes, but I've yet to see an argument that makes a specific cite other than the general speculation that 793 or 798 might have been violated. In other words, I've never seen something phrased as a hypothetical indictment, pointing out the facts that meet each element of the statute.

[Neo]

With the investigation making progress, the possibility remains that even if the New York Times is not indicted, its reporters—James Risen and Eric Lichtblau—might be called before the grand jury and asked to confirm under oath that Tamm, or some other suspect, was their source. That is what happened to a whole battalion of journalists in the investigation of Scooter Libby in the Valerie Plame fiasco.

If Risen and Lichtblau promised their source confidentiality, they might choose not to testify. That would potentially place them, like Judith Miller in the Libby investigation, in contempt of court and even land them in prison.

Libby takes one for the Gipper.

[cboldt]

There are a number of loose parallels between the Plame leak/Libby case, and the NSA leak case.

First, where's the crime? With Plame, we had a bare allegation "she's covert," but no proof before questioning suspects or informants.

With the NSA thing, the allegation is that saying (without providing proof or details) that the NSA is reviewing certain telephone communications constitutes an illegal disclosure of classified information.

Second, and tied in with that, the issue of whether or not the investigation is "bogus," is the range of appropriate reaction of those being questioned. E.g., assert press shield? Shade the truth is not punishable under law because no matter what, the investigation can't find a crime?

If press shield is asserted, would Tatel apply the rule of law he proposed in the Miller case, that the government has to allege actual harm, i.e., a finding of the elements of an 18 USC 793, or 798 violation, in order to compel testimony?

[kim]

Oh, yes, ranger, that lovely little billet doux in which Jay Rockefeller documents his own pusillanimity. That had to come from him and he should be in jail for releasing it.

Or hanged.
======================

[clarice]

Sec 789: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; ...
Cboldt, you don't think that covers the NYT's leak on the FISA program?

[RichatUF]

TSK9-

Hawala (also known as hundi) is an informal value transfer system based on performance and honor of a huge network of money brokers which are primarily located in the Middle East, Africa and Asia.

I have some interesting links if interested you can email me at "richatuf1 at yahoo dot com". Most of the stuff I have are gov't reports, mostly academic stuff. It touched on a project that I was working on a couple of years back when I picked up a vein of information.

[Neo]

Title 50 Section 783. Offenses

(a) Communication of classified information by Government officer
or employee
It shall be unlawful for any officer or employee of the United
States or of any department or agency thereof, or of any
corporation the stock of which is owned in whole or in major part
by the United States or any department or agency thereof, to
communicate in any manner or by any means, to any other person whom
such officer or employee knows or has reason to believe to be an
agent or representative of any foreign government, any information
of a kind which shall have been classified by the President (or by
the head of any such department, agency, or corporation with the
approval of the President) as affecting the security of the United
States, knowing or having reason to know that such information has
been so classified, unless such officer or employee shall have been
specifically authorized by the President, or by the head of the
department, agency, or corporation by which this officer or
employee is employed, to make such disclosure of such information.

Title 18 Section 798. Disclosure of classified information

(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 -
(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.

[cboldt]

I don't believe the NYT article disclosed procedures and methods; any more than a number of Court cases have findings that NSA was obtaining communications (See Jabara case, for example) amount to a disclosure of procedures and methods.

Disclosing the fact of obtaining information doesn't necessarily disclose a procedure or method of obtaining it.

I can easily distinguish between Chicago Trib case from WWII (that did disclose a hitherto unknown US ability to decode encoded Japanese military communications); and the Dec 2005 NYT article that alleged (without providing any evidence) an enlarged scope of NSA communications acquisition.

In the NYT case, the authors proved no specific example of an intercepted communications, other than "terrorists." In contrast, the Trib case gave specific facts contained in a communications -- the sailing of Japanese warships.

The NYT basically said "the NSA is spying on terrorists, and might be, without a warrant, acquiring communications between terrorists and people in the US. Again, that was KNOWN previously, see Jabara case.

But assuming arguendo that NYT is in violation, it can be prosecuted without making any charge whatsoever about the source of its information.

[Ranger]

James Risen and Eric Lichtblau—might be called before the grand jury and asked to confirm under oath that Tamm, or some other suspect, was their source.

I think it could be worse than being called before the grand jury. I have been wondering for a while if a reporter could be charged with solicitation of a crime if they go to a government official and ask them to confirm classified information. I doubt that James Risen and Eric Lichtblau simply sat by the phone and waited for confirmation to come to them.

[Cecil Turner]

With the NSA thing, the allegation is that saying (without providing proof or details) that the NSA is reviewing certain telephone communications constitutes an illegal disclosure of classified information.

If the leaker received classified information on US comint procedures, and then communicated them to the NY Times, it looks to me it's a dead-center violation of Sec 798.a.3

(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; or [emphasis added]

The "unspecific" defense doesn't seem to cut it, if the entire program was classified. However, if it wasn't marked classified, or the leaker learned of it through a conversation he had no reason to believe was classified, that'd be a very close parallel indeed.

In any event, the NY Times's exposure is certainly more limited than the leaker's. Not sure it matters, either. The logical place to stop leaks is at the point where the leaker discusses classified information with reporters . . . and IMHO that's where our enforcement efforts ought to concentrate.

[cboldt]

798.a.3 can get to the publisher too, independent of the leaker. Just emphasize different words in the statute.

The indictment has to recite facts that result in finding furnishing or publishing "communication intelligence activities" as defined in the statute.

Again, that NSA was acquiring communications of people in the US, without a warrant, was known before 2005.

[clarice]

I predicted a long time ago that the NYT's demand for a full investigation of the Plame matter would come back to bite them. It did with Miller and I think it will with this. Whether or not they are found to have violated the law (weren;t they specifically asked not to publish this because it would harm national security--or was that the bank leak?) their reporters will certainly be subpoenaed to testify.

[anduril]

cathyf, I have no problem with what you're saying, above. My concern had to do with the use of the phrase "national security" in connection with the Espionage Act whereas the Espionage Act refers only to "national defense" and makes fairly clear what that means for purposes of the statute.

I suspect that the body of classified information that is covered by neither 793 nor 798 is rather large.

Regarding the leak of NSA related information, I recall reading in newspapers about data mining activities, about use being made of non-conversation data that was being analyzed, the routing of communications through the USA that most people would assume did not get here, about the ways in which communications companies were approached -- to me this activity could very arguably be considered methods and procedures and come under the pretty expansive language of 798. Certainly, to get a warrant the FBI had to allege probable cause that some criminal violation had occurred. I'm open to other possibilities, but for starters 798 seems a pretty good place to hang one's hat.

Title 18 Section 798. Disclosure of classified information

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, ... any classified information -

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

Shall be fined under this title or imprisoned not more than ten years, or both.

[danking70]

"In any event, the NY Times's exposure is certainly more limited than the leaker's."

Was this the program that Bush specifically asked the NY Times not to publish? If so, doesn't that up the NY Times' liability?

or am I confusing that program with the SWIFT banking one?

[Cecil Turner]

798.a.3 can get to the publisher too, independent of the leaker. Just emphasize different words in the statute.

Yes, but it gets to the same problem as the underlying leak in the Libby trial: you have to prove the person leaking (in this case the publisher) knew the information was classified. Assuming the leaker didn't hand over papers stamped "SECRET/SI" (which would be almost unbelievably sloppy) they'd have no way of knowing exactly where the bounds of the classified information lay (if they knew for a fact it was classified at all). And in that case, for the publisher, the specificity defense might well work.

[boris]

Disclosing the fact of obtaining information doesn't necessarily disclose a procedure or method of obtaining it.

At a high enough level of detail it may well disclose methods.

There's some difference between saying "the police often monitor hwy 100 for speeders" and disclosing that "there's a B&W on hwy 100 2 mi east of the cty Q interchange".

The 1st one may inhibit a chronic speeder, the 2nd enables one.

[cboldt]

NYT was specifically asked to not publish a story about warrantless surveillance for the purpose of obtaining foreign intelligence information, on grounds that publishing that story would harm national security. The NYT reported that they sat on the story for a year.

I doubt the NYT was warned off that they might be in violation of 18 USC 798.a.3, but if they were warned off with that specific threat, I'm sure their lawyers investigated and concluded the threat could be rendered hollow by not publishing what amounts to methods or procedures. 18 USC 798 was cited in Pentagon Papers, a case that NYT was a party to, noted just to say that NYT isn't naive in this area.

A conviction on 18 USC 798 carries mandatory forfeiture of the means of publication. I would think NYT would be careful, given the stakes.

There may be a leaker in violation of 798.a.3, e.g., if information was passed beyond what was published, where the passed but unpublished information constitutes procedures and/or methods; or the leaker may in violation of a different statute altogether.

O/T - I really don't like the tools I have to use to get around the troll trap here, so don't expect dialog from me.

[Jane]

AS usual, i'm a bit out of the loop. Didn't the disclosure of the NSA surveillence program have to originate with the CIA? I guess the real question is, who knew what? So could Tamm have been the conduit but not the originator?

[cboldt]

NYT was told the program was classified, so a "we didn't know it was classified" defense won't work.

A defense that works is that what they published doesn't constitute disclosure of methods and procedures.

There aren't many examples that define "methods and procedures," and the cases that do exist are rather varied. The WWII Tribe case is an example where the facts in the story resulted in disclosure that the US had cracked a Jap code. EFF has been stiffed on getting cryptography textbooks under FOIA requests, as cryptography theory and application constitute methods. I would imagine knowledge of tap locations, which carriers are participating, radio interception and filtering capabilities and the like would constitute procedures and methods.

I'd have to reread the Dec. 2005 article closely, again, but I recall when I did read it (looking for a violation, because I wanted to hang the bastards), it wasn't all that informative. It just made an unsupported allegation about US legal policy (no warrants for taps that were generally acknowledged to be within our technical capability to obtain)

[Cecil Turner]

NYT was told the program was classified, so a "we didn't know it was classified" defense won't work.

The program being classified doesn't necessarily mean what the Times published about it was. If they could plausibly claim they didn't think their article revealed classified details, that'd work.

. . . to me this activity could very arguably be considered methods and procedures . . .

Having done a few FOIA requests (and excepting material from declassification because it would reveal "methods"), I can tell you the operators' definition of that is very broad. However, I have no idea how that would hold up in court, and cboldt's take might well prevail.

From a practical viewpoint, just telling the enemy you're intercepting his communications successfully is a major leak, because it can be expected to generate a special review of his comm procedures. Obviously it's worse if you add in details (like cell phone, sat phone, etc.) . . . but while the very technical stuff would be a big deal with someone like the old Soviets, or anyone with groups of scientists working on cryptology, that isn't really the issue when dealing with someone like Al Qaeda. But even with the former, just telling them you're reading their mail implies you've broken their code. And the result of even that could be disastrous (e.g., imagine if the Japanese had an inkling and decided to change their naval code in May '42).

[anduril]

The fact that they seized computers is interesting. It suggests that they had probable cause to believe that there was evidence of a crime on those computers. Emails? Documents? Where did the probable cause come from? Interesting.

[Extraneus]

A conviction on 18 USC 798 carries mandatory forfeiture of the means of publication. I would think NYT would be careful, given the stakes.

I know this wasn't intentionally ironic, but some might consider the NYT's means of publication to be the least of the potential stakes at issue.

[Extraneus]

Cecil: From a practical viewpoint, just telling the enemy you're intercepting his communications successfully is a major leak, because it can be expected to generate a special review of his comm procedures. Obviously it's worse if you add in details (like cell phone, sat phone, etc.) . . . but while the very technical stuff would be a big deal with someone like the old Soviets, or anyone with groups of scientists working on cryptology, that isn't really the issue when dealing with someone like Al Qaeda.

Exactly. And even without the pleadings from the Bush Administration, this is so obvious that it had to have been part of the equation when the NYT decided to publish, meaning -- at least to me -- that they fully intended to accept the consequences to national security and to themselves.

Here's hoping the consequences they intended to accept to themselves will be swift and not too cruel or unusual.

[clarice]

Well, we should comb thru what they printed. I've a recollection that they indicated all calls coming thru the US even if they originated abroad and were going abroad..I'm vague on some other aspects of the report.

Jane, this is an NSA program and the suspects have always been people on the Hill and in DoJ.
The CIA leak we know about was the "secret prisons" story which may have been disinfo deliberately planted as no one has found them ..with details about the planes used to transport suspected prisoners from one place to another.

[SlimGuy]

Aduril said

The fact that they seized computers is interesting. It suggests that they had probable cause to believe that there was evidence of a crime on those computers. Emails? Documents? Where did the probable cause come from? Interesting.

Over on the left wing sites Kos , DU and TPM there has been a recent anonymous poster throwing out a lot of very specific details that would almost match up to a profile of being sourced out Tamm.

That person gave much detailed postings and has been nicknamed by them as "Deep Modem"

Even posters over there are now suggesting it may be Tamm who is the poster.

[Harry MacD]

Cecil & cboldt:

The statutory prohibition is on disclosing any classified information re: comint appears on a plain reading to be far broader than a prohibition on disclosing methods and procedures.

1. TSP is a comint activity. 2. The existence of the TSP was classified info. 3. That info was disclosed. 4. Therefore, classified information re: comint activity was disclosed and the statute was violated. Q.E.D., eh?

[clarice]

Sounds to me like a flippable dope. Or one who left a mile wide trail to everyone he was working with.

[Jane]

Clarice,

Thanks for the clarification.

[anduril]

SlimGuy, very interesting: intentional unauthorized disclosure of classified info via blogging, or participating in an online forum discussion? Wouldn't be surprising.

[cboldt]

It strikes me as odd to argue on the one hand that the snooping activity is within well-known inherent power of the executive to gather foreign intelligence, or within statutory limits of FISA extended by operation of the AUMF - and on the other hand argue that disclosing the general existence of that snooping activity represents disclosure of classified information.

A plain reading of the statute has to read the entire statute. 798 includes prohibitions on disclosing or publishing other than section 798.a.3's "classified communication intelligence activities," (which few people bother to read further to find being defined in the statute as "classified methods and procedures," and fewer people still have sought court cases that facilitate analysis of the meaning of THAT term of art) but section 798.a.3 is the closest match to what NYT published.

One can look at the Congressional authorizing bills for defense and intelligence operations and find the existence of a number of programs having substantial classified content. But knowing a program exists doesn't result in understanding how it operates or the extent of its capability.

[SlimGuy]

To get an idea what I am talking about goto this post over at TPM

Read the tread comments and look for a poster without a screen name.

They are long and detailed posts and fit with someone being in Tamm's position to have knowledge of. 

 

[SlimGuy]

In fact Deep Modem had such detailed disclosure that the Kos Kids set up a whole "action team" to work on validation of the clues provided by the poster.

Here is the post when the kos kids set up their team.

[Neo]

That "Deep Modem" stuff reads like it came for Ted Kaczynski.

[Mark]

This is getting pretty interesting. Will this guy get frogmarched out and made to explain himself?

[kim]

Neo, is he paranoid, or fanning the flames of paranoia?
===================================

[SlimGuy]

The basic premise by the Kos Kids is that Deep Modem has provided enough hints to tie together all the stuff by Gonzales and Rove etc about a diverse set of topics including

Renditions
Wire Tapping
RNC emails bypassing
Potential hints at security programs yet unknown in the wild

Deep Modem provides a lot of data to give a starting workpoint the the Kos Kids are gearing up.

The level of data provided by the source is wide ranging and in depth at the same time.

This likely will not be just a small ripple here, it could get huge.

[cboldt]

He's doing good sleuthing. The family of state AG cases against telco's on phone-call data mining are a real thorn in the administration's backside, hence the urge to obtain statutory relief in order to dispose of those cases. I was just reading some brief on the case in NJ (looking for definition of "methods and procedures" as stated in the FISA statute), and there are a few others. Then there is the family of cases, now consolidated, on the wiretapping aspect - private cases, not brought by state AG's.

While I think there is plenty of objective evidence, and even more "read between the lines" evidence of massive "off book" data collection (and, par for government bureaucracies, mismanagement of said useful information) involving telcos selling information to the government, I think viewing the RNC/NSA/contractor connections as something "more" than obtaining raw data for analysis and action is paranoia.

E.g., this is paranoia ...

"rendition, notification, and prisoner abuse. These are war crimes; and that evidence destruction relates to _war crimes prosecution obstruction_. This isn't about RNC e-mails, but about _war crimes evidence_.

"The FISA violations aren't about the law, they're about _transferring_ data for illegal objectives, including the support of illegal war crimes, prisoner abuse, and other breaches of Geneva. AG Gonzalez doesn't care about FISA violations because his _real_ concern are the war crimes which the CIA has confirmed to the EU."

[clarice]

I doubt the poster is Tamm--sounds like just another kid in mama's basement.

[Cecil Turner]

. . . and on the other hand argue that disclosing the general existence of that snooping activity represents disclosure of classified information.

Seems to me that we still don't know where the bounds of classified information were for this particular program . . . and the NYT's disclosure might not have crossed the line. If they didn't, a conviction is obviously impossible, regardless of damage to national defense. If they did, they can still claim they didn't know they did. The leaker is in a considerably tighter spot, assuming they can prove he leaked, because he's liable for anything he told the Times, regardless of whether they published that detail, and for protecting any properly classified information.

which few people bother to read further to find being defined in the statute as "classified methods and procedures,"

I think you're gonna have to read real hard to find that particular phrase. On the other hand, Clarice posted the definition above which specified "all procedures and methods" and there are posts above on the point . . . so I think it's safe to say several of us got it. As to whether the NY Times story provided "methods," it seems to me by any reasonable usage of the word this qualifies:

What the agency calls a "special collection program" began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism. The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said.

In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said.

But perhaps there's a particular definition pertaining to the actual intercept mechanics that would exclude it . . .

[SlimGuy]

Clarice

I respectfully disagree.

From all I have read from Deep Modem's posting this person fits somewhere in the chain between the intel community, the DOJ or staffers on committees that would have access.

They may even be from a contractor outsourcing some of the spook work, but this clearly is not a kid in his basement cooking up a cool story.

There is too much tech in the posts and DOJ type info to be lightly brushed off.

The one place that would likely have all those points coming together is the office Tamm worked in since they screened the warrants going up to the FISA court.

Sure it may be something other, but it would be the sweet spot someone would love to exploit.

[cboldt]

-- Clarice posted the definition above which specified "all procedures and methods" and there are posts above on the point --

Including the one where I posted a link to the definition, under "brief citation for the proposition that disclosing a POLICY of snooping does not violate 18 USC 798" It was that post that clarice was responding to, and AFAIK, she got the statutory definition of "communication intelligence" from where I posted it a year and half ago.

At any rate, I remain quite sure that few people have dug past the statutory language to look for its application in cases, and I am confident of that based on the paucity of case citations I've seen.

[boris]

odd to argue on the one hand that the snooping activity is within well-known inherent power of the executive ... and on the other hand argue that disclosing the general existence of that snooping activity represents disclosure

Too many qualifiers to address directly.

Information specific enough that enables the enemy to adjust and avoid detection should qualify for "methods and procedures".

As in my example, there is a big difference between general knowledge and specific knowledge even if the exact technology is not disclosed. IOW the position of the police car enables speeder avoidance regardless of whether the officer is using radar or laser or stopwatch.

[boris]

CREW files DOJ complaint against Boehner for leaking FISA court ruling

Allahpundit

In a nutshell, Boehner spilled the beans last week on Neil Cavuto’s show about a FISA court ruling earlier this year that prohibited the government from tapping calls routed through the United States, even if they were between two foreign persons.

[Rick Ballard]

Poisoning the well on Gonzales and anticipatory tu quoque squared on Boehner.

Sounds like there's a big fat Dem goose headed for the broiler.

Rockefeller?

Durbin?

Gosh, this could drag on right through the elections next year. Amazing.

[Cecil Turner]

Including the one where I posted a link to the definition . . .

I think it was fairly obvious you'd read it, or you wouldn't be complaining others hadn't. My point was that you obviously weren't the only one that had.

I am confident of that based on the paucity of case citations I've seen.

I'm not sure it's even relevant. The statute doesn't say a violation requires leaking "procedures and methods" . . . only "any classified information - concerning the [all procedures and methods . . . communications] activities of the United States or any foreign government."

It also, in 798.a.4, makes it a violation to divulge information "obtained by the processes" of comint. So it's obviously not just forbidding passing on technical info, and a plain reading allows conviction on leaking any related pertinent classified information.

Seems to me the key to this one, just as in the Libby case, is whether the information was classified, and whether it can be proved that the leaker knew it and communicated it. (Unless we're going to hunt down the nearest Administration official and grill him for hours on when he first heard a bunch of vaguely related unimportant trivia for an obstruction charge. . .)

[Topsecretk9]

OK - doesn't this Crew compliant kinda seal the deal on the need to file an FEC/SEC/IRS complaint on CREW for misusing their bi-partisan non-profit status?

[Topsecretk9]

Rick

Sounds like there's a big fat Dem goose headed for the broiler.

this was my first thought too, and I also thought it to be a weak hand.

[cboldt]

798.a.4 is a reference to the contents of some intercepted communications (from the communications of any foreign government), and is not construed broadly as prohibiting "leaking any related pertinent classified information."

There is more than one key to finding a violation. I agree that "classified" is one. But it should be obvious that every element to a crime is a "key," and one element is expressed in the phrase "concerning the communication intelligence activities ..."

My points were 1) that the phrase implies more than disclosing the existence of a classified program, and 2) whatever that "more" is, few people even get to the statutory defintion (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), and even fewer seek out lawsuits to study the application of a fact pattern to the statutory definition.

[Harry MacD]

cboldt:

"Communication intelligence" is defined as "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 prohibited disclosure is not of "communication intelligence" or "procedures and methods" per se but of "any classified information ... concerning the communication intelligence activities" of the US.

Even if the NYT did not disclose precedures and methods, they did disclose classified info re: comint activities - the existence and contours of the program. Telling the enemy definitively that a certain category of his communications is being snooped on most definitely qualifies as "prejudicial to the safety or interest of the United States."

The prohibition is broader than the definition.

In NYT v. US, Justice White in fn 7 cited to H. R. Rep. No. 1895, 81st Cong., 2d Sess., 1 (1950), which has language which cuts both ways on this question (quote is from opinion quoting the report - I can't get the House Report):

"this bill … makes it a crime to reveal methods used by this Nation in breaking the secret codes of a foreign nation. It also prohibits under certain penalties the divulging of any information which may have come into this Government's hands as a result of such a code-breaking." H. R. Rep. No. 1895, 81st Cong., 2d Sess., 1 (1950). The narrow reach of the statute was explained as covering "only a small category of classified matter, a category which is both vital and vulnerable to an almost unique degree." Id., at 2. Existing legislation was deemed inadequate."
…
"The present bill is designed to protect against knowing and willful publication or any other revelation of all important information affecting the United States communication intelligence operations and all direct information about all United States codes and ciphers." Ibid.

It is true I don't know what other cases might say about this point. Enlighten me.

Regards,

[PeterUK]

"but while the very technical stuff would be a big deal with someone like the old Soviets, or anyone with groups of scientists working on cryptology, that isn't really the issue when dealing with someone like Al Qaeda."

It might be worth remembering the number of Doctors,engineers and other graduates in al Qaeda,many the product of Western universities.The Internet Jihad would indicate that there are not a few who are technically savvy,there are likely to be mathamaticians and logicians in their ranks.
Whilst there are plenty of family idiots and gullible fools,AQ is an educated middle class movement,they have the knowhow but not the industrial base to back it up.

[SlimGuy]

PUK

I agree, they have many who are not at the cannon fodder level.

Look at all the Jihad websites out there and a lot have a high degree of complexity.

Complex video editing and also down loadable hacker programs to harass infidels and so many other things let you know there are a lot of smart people hooked up with this movement. They ain't all dummies.

[boris]

there are not a few who are technically savvy

So true. That is what the other side dismisses when they minimize the dangers.

[RichatUF]

Rick-

Sounds like there's a big fat Dem goose headed for the broiler

How long before they start turning on one another?

Slimguy-

Interesting find, but I'm a bit leery of clicking over to the site. Will try to explore it later this evening.

[Cecil Turner]

798.a.4 is a reference to the contents of some intercepted communications . . .

Exactly my point. It's not related to the technical aspects of the intercept. That argues that the "procedures and methods" phrase may also not relate to techical issues involving intercepts. If so, the general description in the Times (of the way the NSA followed the initial information following captures) may well qualify.

My points were 1) that the phrase implies more than disclosing the existence of a classified program, and 2) whatever that "more" is, few people even get to the statutory defintion . . .

I agree on number 1. On number 2, I don't place as much emphasis on it, because I don't think it dispositive. In particular, I disagree with your contention:

A defense that works is that what they published doesn't constitute disclosure of methods and procedures.

It seems to me publishing related classified information could well be a violation. It also seems to me the main issue remains whether the information was classified and they knew it (because there's no doubt they published, and it appears to be related to communications intelligence, as defined in the statute).

. . . they have the knowhow but not the industrial base to back it up.

That's what I meant. I'd guess they were using some commercial products (such as PGP), but lack the ability to generate their own encryption devices or codes. As such, the hypertechnical stuff wouldn't do them as much good, because they have no ability to alter the actual code.