Endangering America To Sell A Book

Friday the New York Times revealed The New York Times revealed, despite strong objections from the administration, that President Bush "secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying...."

The Times noted, in the second paragraph that only international communications were monitored:

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The Times also reported the administration considers the intelligence gathering necessary to protect the United States, that safeguards were in place to protect privacy and civil liberties, and that the Times had delayed publishing the story for a year:

The Bush administration views the operation as necessary so that the agency can move quickly to monitor communications that may disclose threats to the United States, the officials said. Defenders of the program say it has been a critical tool in helping disrupt terrorist plots and prevent attacks inside the United States.

Administration officials are confident that existing safeguards are sufficient to protect the privacy and civil liberties of Americans, the officials say. In some cases, they said, the Justice Department eventually seeks warrants if it wants to expand the eavesdropping to include communications confined within the United States. The officials said the administration had briefed Congressional leaders about the program and notified the judge in charge of the Foreign Intelligence Surveillance Court, the secret Washington court that deals with national security issues.

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

The Washington Post takes the Times to task because the Times' article offered no explanation as to what had changed to cause the paper publish the story now. Even more significantly, there is a possible, undisclosed conflict of interest on the part of the Times and James Risen, the lead reporter on the Times' article:

The paper offered no explanation to its readers about what had changed in the past year to warrant publication. It also did not disclose that the information is included in a forthcoming book, "State of War: The Secret History of the CIA and the Bush Administration," written by James Risen, the lead reporter on yesterday's story. The book will be published in mid-January, according to its publisher, Simon & Schuster.

The Post notes that in a statement issued Friday, Times Executive Editor Bill Keller did not mention the book, but did offer an explanation for publishing the story now:

In the ensuing months, Keller wrote, two things changed the paper's thinking. The paper developed a fuller picture of misgivings about the program by some in the government. And the paper satisfied itself through more reporting that it could write the story without exposing "any intelligence-gathering methods or capabilities that are not already on the public record."

Tom Rosenstiel, executive director of the Project for Excellence in Journalism, said it was conceivable the Times waited to publish its NSA story as the Senate took up renewal of the Patriot Act. "It's not unheard of to wait for a news peg," he said. "It's not unusual to discover the existence of something and not know the context of it until later."

Which brings us to Senator John Cornyn who accuses the New York Times of endangering American security to sell a book:

"At least two senators that I heard with my own ears cited this as a reason why they decided to vote to not allow a bipartisan majority to reauthorize the Patriot Act," said Republican Sen. John Cornyn (news, bio, voting record) of Texas. "Well, as it turns out the author of this article turned in a book three months ago and the paper, The New York Times, failed to reveal that the urgent story was tied to a book release and its sale by its author."

[. . .]

Times reporter James Risen, who wrote the story, has a book "State of WAR: The Secret History of the CIA and the Bush Administration," coming out in the next few weeks, Cornyn said.

"I think it's a crying shame ... that we find that America's safety is endangered by the potential expiration of the Patriot Act in part because a newspaper has seen fit to release on the night before the vote on the floor on the reauthorization of the Patriot Act as part of a marketing campaign for selling a book," Cornyn said.

According to the Associated Press, several senators cited the NSA revelation as a reason to uphold a filibuster on the renewal of the expiring portions of the USA Patriot Act. Supporters of renewing the law failed to get 60 votes needed to break the filibuster.

In his weekly radio address yesterday, President Bush strongly defended both the Patriot Act the intelligence gathering program and was critical of the Times' disclosure:

This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies. Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country.

As the 9/11 Commission pointed out, it was clear that terrorists inside the United States were communicating with terrorists abroad before the September the 11th attacks, and the commission criticized our nation's inability to uncover links between terrorists here at home and terrorists abroad. Two of the terrorist hijackers who flew a jet into the Pentagon, Nawaf al Hamzi and Khalid al Mihdhar, communicated while they were in the United States to other members of al Qaeda who were overseas. But we didn't know they were here, until it was too late.

The authorization I gave the National Security Agency after September the 11th helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities. The activities I have authorized make it more likely that killers like these 9/11 hijackers will be identified and located in time. And the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.

The Associated Press described President Bush's defense of the intelligence gathering program as unapologetic and reports the President often appeared angry in the eight-minute address.

The President should be angry. The New York Times' publication of this classified intelligence program doesn't pass the smell test. The Times published the story on the day the Senate was to vote on reauthorizing the Patriot Act, after withholding publication for a year. The paper's failure to disclose or even address the huge apparent conflict of interest- the fact that the lead writer of the article has a book about to be published on the topic makes all the worse. It is also ironic, as pointed out by Ed Morrissey at Captains' Quarters, that less than a month after the main stream media provided headline coverage to the 9/11 Commission's condemnation of the President and Congress for not doing enough to protect Americans from attack, the President is now lambasted for doing too much.

The argument that the times was right to disclose the classified intelligence gathering program because the program was illegal also doesn't hold water. The program was and is thoroughly reviewed by the Justice Department and NSA's top legal officials and Congressional leaders have been briefed about the program "more than a dozen times." The Foreign Intelligence Security Act permits the government to monitor foreign communications, even if they are with U.S. citizens. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power.

I don't find the intelligence gathering program very bothersome. We are at war, even though too many pretend we are not. Additionally, anyone who assumes e-mail or cell phone conversations are private needs a reality check.

What does bother me is the public disclosure of a classified program. If we can spend who knows how much and more than two years to investigate who said what to whom and when concerning the Plame name dropping, we can damned well spend the necessary resources to determine who told the Times.

Comments

[Ferguson]

You claim that, "A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power." According to Section 1802 B of FISA, however, the President may only authorize electronic surveillance without a court order if the Attorney General, "certifies in writing under oath that . . . there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."

Section 1802 of FISA identifies the conditions under which the President may authorize electronic surveillance without a court order, and it seems to me to exclude the surveillance of American citizens. What is an alternate reading?

For reference: http://caselaw.lp.findlaw.com/casecode/uscodes/50/chapters/36/subchapters/i/sections/section_1802.html

[The Owner's Manual]

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