Something to Hide

On Sunday, Sen. Charles Schumer, D-N.Y., called for a Senate Committee investigation into the National Security Agency's secret wiretapping program. But instead of peering into the secrets behind the potentially illegal -- and potentially impeachable -- executive office spying, Republican officials made the Sunday talk show rounds excoriating the whistleblowers as the real threat to our security.

When Fox News Sunday host Chris Wallace asked Sen. Mitch McConnell, R-Ky., whether there was any chance that the Senate would put new limits on the president's powers, McConnell replied:

Well, we'll certainly take a look at that, but thank goodness the Justice Department is investigating to find out who has been endangering our national security by leaking this information so that our enemies now have a greater sense of what our techniques are in going after terrorists.
Even as the discussion has shifted from the spying itself to whomever revealed the spying, the New York Times' public editor Byron Calame got stonewalled in his search for the reasons behind the Times' yearlong delay in publishing the story. In his latest column, he writes, "For the first time since I became public editor, the executive editor and the publisher have declined to respond to my requests for information about news-related decision-making."

Calame submitted a list of 28 questions to New York Times executive editor Bill Keller and publisher Arthur Sulzberger, and says that the silence from the top offices was deafening. All Calame could get from Keller was this: "There is really no way to have a full discussion of the back story without talking about when and how we knew what we knew, and we can't do that."

The Times' obfuscation on the issue -- as well as the new Republican emphasis on hunting down the whistleblowers -- hinges on the assumption that new and vital information was leaked about our country's strategies in the "war on terror." According to White House spokesman Trent Duffy, "The leaking of classified information is a serious issue. The fact is that Al Qaeda's playbook is not printed on Page 1 -- and when America's is, it has serious ramifications."

But if you google Foreign Intelligence Surveillance Act (FISA), you can read all about how warrantless wiretaps have been legally conducted since 1978. FISA allows for immediate warrantless electronic surveillance as long as a warrant is sought within 72 hours. Anyone who wanted to know that the administration was capable of this, could. And anyone who didn't arguably doesn't pose much of a threat to the U.S.

And the FISA courts have historically been anything but stringent with executive-branch wiretap requests. According to a UPI report, of the nearly 19,000 search warrants requested by presidents since 1978, only 181 have been modified, and all but two of those changes occured during George W. Bush's administration. It seems that the normally lenient FISA court had some substantial doubts about this president's requests.

Tellingly, a few days after the Times published the secret wiretap story, one of the 11 judges on the FISA court resigned. According to James Robertson's colleagues, he was worried that information obtained through the secret wiretaps was then used to obtain warrants through the FISA court.

And yet, the recent hubbub is not over an investigation into the president's excruciatingly flawed legal reasoning in conducting the wiretaps. Rather, a judicial probe is being launched to find out who the whistleblowers were in the leak. The probe will not be led by an independent special prosecutor (as in the Valerie Plame case) but by Justice Department officials who will be reporting to Attorney General Alberto Gonzales.

Those conducting the investigation will likely face quite a bit of political pressure, not only because Gonzales has proven time and again that he is willing to endorse any legal argument in order to extend the president's executive power. He is one of the people who originally pushed for the secret wire taps when other members of the Bush administration questioned the policy. The Times' Eric Lichtblau reported that when "James B. Comey, then deputy attorney general, refused to sign on to the recertification of the [NSA] program in March 2004 Alberto R. Gonzales "made" an emergency hospital visit to John Ashcroft to try to persuade him to give his authorization, as required by White House procedures for the program Mr. Ashcroft also appeared reluctant to sign on to the continued use of the program."

It is evident that the wiretap program was opposed from within the administration. Indeed, Lichtblau and James Risen, who together broke the original story, based the piece on interviews with U.S. officials who claimed they were concerned that the NSA program was proving an unchecked abuse of executive power.

But the administration's logic neatly does away with this allegation. To the question of whether executive powers have been breached, the president's lawyers repeatedly turn the tables by asserting that questioning executive power in wartime -- power granted by Congress after the 9/11 attacks -- is itself a violation of executive power.

Disturbingly, it's a similar circular logic that Times executive editor Bill Keller used when defending the yearlong delay in publishing the wiretap story. Apparently, the paper only published the story when "it could report on the secret program without damaging 'any intelligence-gathering methods or capabilities that are not already on public record.'" But the press is an integral component of creating public record. And, again, conducting warrantless wiretaps through FISA begs the question of what new information was actually leaked.

Keller also noted that the paper decided that the civil liberties issues "loomed larger within the government than previously understood." But these civil-liberties issues loomed large enough that, a year ago, co-author of the original wiretap piece James Risen was pushing to go ahead with publishing the story. And when he was unsuccessful, he took leave to write the book "State of War: The Secret History of the CIA and the Bush Administration." The book is due out this Thursday, Jan. 5, and Times public editor Calame discovered that Keller has been in touch with Risen's publisher. Calame notes, "It seems to me the paper was quite aware that it faced the possibility of being scooped by its own reporter's book in about four weeks." Which leads him to wonder, "to what extent did the book cause top editors to shrug off concerns that had kept them from publishing the eavesdropping article for months?"

A matter of weeks ago, the question on the table was the president's possible impeachable offense. We are now discussing a criminal investigation into who leaked information that arguably provides nothing more to the public than a clear picture of how much contempt the Bush administration has for the Constitution.

In a time of war, information plays a critical role in public opinion. Subsequently, public opinion limits what presidential moves will and will not be tolerated. Unfortunately, the little information the public received may have been too little, and delivered too late.

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