The Justice Department has opened another investigation into leaks
of classified information, this time to determine who divulged the
existence of President Bush’s secret domestic spying program.
The
inquiry focuses on disclosures to The New York Times about warrantless
surveillance conducted by the National Security Agency since the Sept.
11 terrorist attacks, officials said.
The newspaper recently
revealed the existence of the program in a front-page story that also
acknowledged that the news had been withheld from publication for a
year, partly at the request of the administration and partly because
the newspaper wanted more time to confirm various aspects of the
program.
White House spokesman Trent Duffy said Justice undertook the action on its own, and Bush was informed of it Friday.
“The
leaking of classified information is a serious issue. The fact is that
al-Qaida’s playbook is not printed on Page One and when America’s is,
it has serious ramifications,” Duffy told reporters in Crawford, Texas,
where Bush was spending the holidays.
Catherine Mathis, a spokeswoman for the Times, declined to comment.
Disclosure
of the secret spying program two weeks ago unleashed a firestorm of
criticism of the administration. Some critics accused the president of
breaking the law by authorizing intercepts of conversations _ without
prior court approval or oversight _ of people inside the United States
and abroad who had suspected ties to al-Qaida or its affiliates.
Bush,
who publicly acknowledged the program’s existence and described how it
operates, has argued that the initiative is legal in a time of war.
The
inquiry launched Friday is only the most recent effort by the Bush
administration to determine who is disclosing information to
journalists.
Two years ago, a special counsel was named to
investigate who inside the White House gave reporters the identity of
CIA operative Valerie Plame, an effort that led to perjury and
obstruction of justice charges against Vice President Dick Cheney’s top
aide, Lewis I. “Scooter” Libby.
More recently, the Justice
Department has begun examining whether classified information was
illegally disclosed to The Washington Post about a network of secret
CIA prisons in Eastern Europe and elsewhere.
The NSA leak probe was launched after the Justice Department received a request from the spy agency.
It
is unclear whether Attorney General Alberto Gonzales will recuse
himself from the inquiry. He was White House counsel when Bush signed
the executive order authorizing the NSA, which is normally confined to
overseas operations, to spy on conversations taking place on American
soil.
For the past two weeks, Gonzales also has been one of the
administration’s point men in arguing that the president has the
constitutional authority to conduct the spying.
“It’s pretty
stunning that, rather than focus on whether the president broke his
oath of office and broke federal law, they are going after the
whistleblowers,” said Anthony D. Romero, executive director of the
American Civil Liberties Union.
Romero said a special prosecutor
from outside the Justice Department needs to be appointed. “This
confirms many of the fears about Gonzales’ appointment _ that he would
not be sufficiently independent from the president and that he would
play the role of a crony,” he said.
Duke University law professor Scott Silliman agreed that the Justice Department is taking the wrong approach.
“Somebody
in the government has enough concern about this program that they are
talking to reporters,” Silliman said. “I don’t think that is something
the Justice Department should try to prosecute.”
Douglas Kmiec, a
Pepperdine University law professor, said the Justice probe is the next
logical step because the NSA is alleging a violation of a law that
prohibits disclosure of classified information.
“The Department
of Justice has the general obligation to investigate suspected
violations of the law,” Kmiec said. “It would be extraordinary for the
department not to take up this matter.”
The NSA probe likely will
result in a repeat of last summer’s events in Washington, where
reporters were subpoenaed to testify about who in the administration
told them about Plame’s work at the CIA. New York Times reporter Judith
Miller spent 85 days in jail for refusing to reveal her sources.
Lucy
Dalglish, executive director of the Reporters Committee for Freedom of
the Press, said the Plame investigation was about “political
gamesmanship.” But, she said, the NSA leak probe is frightening.
“In
this case, there is no question that the public needed to know what the
New York Times reported,” she said. “It’s much more of a classic
whistleblower situation. The public needs to know when the government
is engaged in things that may well be unconstitutional.”
The
surveillance program bypassed a nearly 30-year-old secret court
established to oversee highly sensitive investigations involving
espionage and terrorism.
Administration officials insisted that
Bush has the power to conduct warrantless surveillance under the
Constitution’s war powers provision. They argued that Congress also
gave Bush the power when it authorized the use of military force
against terrorists in a resolution adopted within days of the Sept. 11
attacks.
