The New York Times reports federal agents have interviewed officials at several of the country's law enforcement and national security agencies in a rapidly expanding criminal investigation into the circumstances surrounding a New York Times article published in December that disclosed the existence of a highly classified domestic eavesdropping program.
People who have been interviewed and others in the government who have been briefed on the interviews said the investigation seemed to lay the groundwork for a grand jury inquiry that could lead to criminal charges.
[. . .]
A Federal Bureau of Investigation team under the direction of the bureau's counterintelligence division at agency headquarters has questioned employees at the F.B.I., the National Security Agency, the Justice Department, the Central Intelligence Agency and the office of the Director of National Intelligence, the officials said. Prosecutors have also taken steps to activate a grand jury.
The interviews have focused initially on identifying government officials who have had contact with Times reporters, particularly those in the newspaper's Washington bureau. The interviews appeared to be initially intended to determine who in the government spoke with Times reporters about intelligence and counterterrorism matters.
In addition, investigators are trying to determine who in the government was authorized to know about the eavesdropping program. Several officials described the investigation as aggressive and fast-moving. The officials who described the interviews did so on condition of anonymity, citing the confidentiality of an ongoing criminal inquiry.
As I have posted before, the formerly secret electronic intercepts of contents of communications where there is a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda, and where one party to the communication is outside the United States, doesn't bother me.
What does bother me is the disclosure of the classified program by government employees.
Federal law, 18 U.S.C. § 798. Disclosure of classified information, prohibits the disclosure of certain categories of information, specifically including classified information regarding communications intelligence:
(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;
[. . .]
Shall be fined under this title or imprisoned not more than ten years, or both.
Definitions in the following subsection (b) makes clear the applicability of the act to the leakers and the leaked information:
The term "communication intelligence" means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;
The term "unauthorized person" means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.
I'm glad that the investigation into who leaked the story is moving forward.
I remain extremely disappointed that the Times has still not seen fit to address its more than apparent conflict of interest in The Times' sudden decision to reveal the highly classified program of intercepting communications with al-Qaeda.
I am also puzzled that the Times' continues to hope that it has some legal right to conceal its sources, even in a criminal investigation:
Some media lawyers believe that The Times has powerful legal arguments in defense of its reporting and in protecting its sources.
Theodore J. Boutrous Jr., who has represented publications like The Wall Street Journal and Time magazine, said: "There is a very strong argument that a federal common-law reporters' privilege exists and that privilege would protect confidential sources in this case. There is an extremely strong public interest in this information, and the public has the right to understand this controversial and possibly unconstitutional public policy."
One would think the Times would have learned the futility of such an argument when Judith Miller, at the time a reporter for the Times, who spent 85 days in jail before agreeing to comply with a subpoena to testify about her conversations with I. Lewis Libby Jr.
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