Saturday, December 31, 2005

Investigating the Leak Rather Than the Crime

When the news broke yesterday that the Department of Justice had been formally requested by the National Security Agency to investigate the source of the leaked information that the NSA was engaged in warrantless domestic spying, I wasn't surprised. The Resident had promised as much in a speech shortly after the NY Times article on the spying was printed.

The first reports were fairly skeletal.

The U.S. Justice Department has launched an investigation to see who disclosed details about a secret domestic eavesdropping operation, department officials said Friday.

"We are opening an investigation into the unauthorized disclosure of classified materials related to the NSA," one official said, referring to the National Security Agency.

...Justice Department officials would give no details of who requested the probe or how it would be conducted.

I decided to wait until I saw just how the mainstream media would handle the news, and how much further information would appear. Most major outlets (NY Times, Washington Post, LA Times) gave the story prominence and rehashed the story leading up to the story. The real story, that the President of the United States had approved, perhaps even ordered the warrantless "eavesdropping" received scant mention, that he in fact had violated statutory law and the Constitution, both impeachable offenses, was almost entirely avoided. The effect? Attention to a real crime was diverted to discovering the name(s) of the dastardly leaker.

Then, this morning, a commentator at Eschaton pointed me to a blogger who had really done his homework on the issue. Glenn Greenwald's post made it clear just what was at stake here. I urge you to read his entire post because besides being extremely detailed on the legal and historical aspect of the issue it's very informative.

Perhaps the most salient portion of Mr. Greenwald's post is the executive order issued in 1995 regarding the classification (secret-making) process itself:

[The]classification process specifically prohibits classifying information in order to conceal governmental wrongdoing:

(a) In no case shall information be classified in order to:

(1) conceal violations of law, inefficiency, or administrative error;

(2) prevent embarrassment to a person, organization, or agency;
[Emphasis added]

The whole point of whistle blower statutes is to enable patriotic public servants to reveal when and how the government violates the law of the land, even if the violation is committed by the Chief Executive. Seen in light of this Executive Order, the pending investigation can only be seen as a means of intimidating and punishing the people who called bullshit on the assault on the civil liberties guaranteed by the Consitution.

What will be interesting to see is how the NY Times will handle this investigation. They went to the mat for Judith Miller and then had to admit they were wrong to do so. Unfortunately, they never made clear why they were wrong. Miller's source was violating the law by doing the leak. That's not whistle blowing. Here, the source or sources were leaking information about a crime committed by our government. This is where the NY Times should dig in and dig in hard. Hopefully they will not wimp out because of the Miller debacle.

In any event, well done, Mr. Greenwald. And, thanks, Tracy, for the tip.


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