ACLU: Bush Broke the Law and Lied to the American People

WASHINGTON, Dec. 30 - The Justice Department said on Friday that it had opened a criminal investigation into the disclosure of classified information about a secret National Security Agency program under which President Bush authorized eavesdropping on people in the United States without court warrants.

The investigation began in recent days after a formal referral from the security agency regarding the leak, federal officials said, speaking on the condition of anonymity because of the secrecy of the investigation.

The program, whose existence was revealed in an article in The New York Times on Dec. 16, has provoked sharp criticism from civil liberties groups, some members of Congress and some former intelligence officials who believe that it circumvents the law governing national security eavesdropping.

President Bush and Attorney General Alberto R. Gonzales have vigorously defended the program as a legal, critical defense against terrorism that has helped prevent attacks in this country. They say Mr. Bush’s executive order authorizing the program is constitutional as part of his powers as commander in chief and under the resolution passed by Congress days after the attacks of Sept. 11, 2001. That resolution authorized the use of force against terrorists.

The White House said on Friday that it had played no role in the Justice Department’s decision. But in Crawford, Tex., where Mr. Bush has been all week, a spokesman was sent to talk to reporters with a prepared statement about the decision.

"The leaking of classified information is a serious issue," said the spokesman, Trent Duffy.

"The fact is that Al Qaeda’s playbook is not printed on Page 1, and when America’s is, it has serious ramifications. You don’t need to be Sun Tzu to understand that," he said, referring to the Chinese warrior who wrote "The Art of War."

The president last week denounced in strong language the leaking of information about the agency’s program, saying: "My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we’re discussing this program is helping the enemy."

Privacy advocates on Friday said the leak investigation should be set aside, at least for now, in favor of an investigation of the warrantless eavesdropping itself.

"President Bush broke the law and lied to the American people when he unilaterally authorized secret wiretaps of U.S. citizens," said Anthony D. Romero, executive director of the American Civil Liberties Union. "But rather than focus on this constitutional crisis, Attorney General Gonzales is cracking down on critics of his friend and boss. Our nation is strengthened, not weakened, by those whistle-blowers who are courageous enough to speak out on violations of the law."

Marc Rotenberg, the executive director of the Electronic Privacy Information Center in Washington, said his group believed "the priority at this point for the Department of Justice should be the appointment of an independent prosecutor to determine whether federal wiretap laws were violated" by the security agency program, not the leak inquiry.

The administration has been sensitive about leaks of closely held information, classified or not, and the Justice Department is also investigating the recent disclosure by The Washington Post that the Central Intelligence Agency operated secret prisons for terrorist suspects in Eastern Europe.

But the most prominent leak investigation during President Bush’s five years in office has been the one conducted by Patrick J. Fitzgerald, an independent prosecutor, into the disclosure in 2003 of the secret C.I.A. employment of Valerie Wilson, a covert agency officer. That inquiry resulted in the indictment in October for perjury and obstruction of justice of I. Lewis Libby Jr., then chief of staff to Vice President Dick Cheney.

The Fitzgerald investigation also produced subpoenas for several journalists who were asked to testify about their sources. Judith Miller, then a New York Times reporter, served 85 days in jail for initially refusing to discuss her sources.

There are several laws that can be invoked against a government employee who knowingly reveals classified information. One statute applies specifically to the N.S.A., a mammoth code-breaking and eavesdropping agency based at Fort Meade, Md., prohibiting the disclosure of information about "communications intelligence activities" that is "in any manner prejudicial to the safety or interest of the United States."

Tom Devine, legal director of the Government Accountability Project, a nonprofit law firm that defends whistle-blowers, said his group would not object to a limited investigation of the leak of classified information. "But if they do a blanket witch hunt, which I fear," he said, "it would trample all over good government laws" intended to protect government workers who expose wrongdoing.

"The whole reason we have whistle-blower laws is so that government workers can act as the public’s eyes and ears to expose illegality or abuse of power," Mr. Devine said.

The administration first learned that The New York Times had obtained information about the secret eavesdropping program more than a year ago and expressed concern to editors that its disclosure could jeopardize terrorism investigations. The newspaper withheld the article at the time, and the government did not open a leak investigation at that time, presumably because such an inquiry might itself disclose the program.

The newspaper did additional reporting and eventually decided to publish the article despite the continuing objections of President Bush and other top officials.

While President Bush has focused his ire on whoever leaked the information, Vice President Cheney, in remarks to reporters on Dec. 20, was critical of The Times as well. Reiterating that the administration had asked the newspaper not to publish the article, Mr. Cheney said: "Eventually they ran it. I think that’s unfortunate. I think it damages national security."

A Justice Department official, asked whether the investigation would examine the newspaper’s publication of the information in addition to any government employees who might have leaked it, said he could not comment on any aspect of the investigation.

Bill Keller, the newspaper’s executive editor, declined to comment on the leak investigation.

Earlier this week, a top F.B.I. official sent a letter to agents working in counterterrorism and intelligence to warn them that despite the public acknowledgment of the spy agency’s program by the president and other high officials, it remained classified and should not be discussed.

John Miller, a spokesman for the bureau, said the letter was sent by Gary M. Bald, executive assistant director for counterterrorism and counterintelligence, after agents received inquiries from local officials and others and sought guidance on how to respond.

http://www.nytimes.com/2005/12/31/p...