Inquiry Into Wiretapping Article
Widens
NY Times
By DAVID JOHNSTON
February 12, 2006
WASHINGTON, Feb. 11 — 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, according to government
officials.
The investigation, which appears to cover the case from 2004, when the
newspaper began reporting the story, is being closely coordinated with criminal
prosecutors at the Justice Department, the officials said. 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.
The inquiry is progressing as a debate about the eavesdropping rages in
Congress and elsewhere. President Bush has condemned the leak as a "shameful
act." Others, like Porter J. Goss, the C.I.A. director, have expressed the hope
that reporters will be summoned before a grand jury and asked to reveal the
identities of those who provided them classified information.
Mr. Goss, speaking at a Senate intelligence committee hearing on Feb. 2,
said: "It is my aim and it is my hope that we will witness a grand jury
investigation with reporters present being asked to reveal who is leaking this
information. I believe the safety of this nation and the people of this country
deserve nothing less."
The case is viewed as potentially far reaching because it places on a
collision course constitutional principles that each side regards as paramount.
For the government, the investigation represents an effort to punish those
responsible for a serious security breach and enforce legal sanctions against
leaks of classified information at a time of heightened terrorist threats. For
news organizations, the inquiry threatens the confidentiality of sources and
the ability to report on controversial national security issues free of
government interference.
Bill Keller, executive editor of The Times, said no one at the paper had
been contacted in connection with the investigation, and he defended the
paper's reporting.
"Before running the story we gave long and sober consideration to the
administration's contention that disclosing the program would damage the
country's counterterrorism efforts," Mr. Keller said. "We were not convinced
then, and have not been convinced since, that our reporting compromised
national security.
"What our reporting has done is set off an intense national debate about the
proper balance between security and liberty — a debate that many
government officials of both parties, and in all three branches of government,
seem to regard as in the national interest."
Civil liberties groups and Democratic lawmakers as well as some Republicans
have called for an inquiry into the eavesdropping program as an improper and
possibly illegal intrusion on the privacy rights of innocent Americans. These
critics have noted that the program appears to have circumvented the Foreign
Intelligence Surveillance Act, which requires court approval for eavesdropping
on American citizens.
Former Vice President Al Gore has called for a special prosecutor to
investigate the government's use of the program, and at least one Democrat,
Representative John Conyers Jr. of Michigan, has said the eavesdropping effort
may amount to an impeachable offense.
At the same time, conservatives have attacked the disclosure of classified
information as an illegal act, demanding a vigorous investigative effort to
find and prosecute whoever disclosed classified information. An upcoming
article in Commentary magazine suggests that the newspaper may be prosecuted
for violations of the Espionage Act and says, "What The New York Times has done
is nothing less than to compromise the centerpiece of our defensive efforts in
the war on terrorism."
The Justice Department took the unusual step of announcing the opening of
the investigation on Dec. 30, and since then, government officials said,
investigators and prosecutors have worked quickly to assemble an investigative
team and obtain a preliminary grasp of whether the leaking of the information
violated the law. Among the statutes being reviewed by the investigators are
espionage laws that prohibit the disclosure, dissemination or publication of
national security information.
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.
The administration's chief legal defender of the program is Attorney General
Alberto R. Gonzales, who is also the senior official responsible for the leak
investigation. At a Senate Judiciary Committee hearing on Feb. 6, Mr. Gonzales
said: "I'm not going to get into specific laws that are being looked at. But,
obviously, our prosecutors are going to look to see all the laws that have been
violated. And if the evidence is there, they're going to prosecute those
violations."
Mr. Bush and other senior officials have said that the electronic
surveillance operation was authorized by what they call the president's wartime
powers and a Congressional resolution authorizing the use of force against Al
Qaeda passed in the days after the September 2001 terror attacks.
The government's increasing unwillingness to honor confidentiality pledges
between journalists and their sources in national security cases has been
evident in another case, involving the disclosure in 2003 of the identity of an
undercover C.I.A. officer, Valerie Wilson. The special counsel in the case,
Patrick J. Fitzgerald, demanded that several journalists disclose their
conversations with their sources.
Judith Miller, at the time a reporter for The Times, went to jail for 85
days before agreeing to comply with a subpoena to testify about her
conversations with I. Lewis Libby Jr., who was chief of staff to Vice President
Dick Cheney. Mr. Libby has been indicted on charges of making false statements
and obstruction of justice and has pleaded not guilty.
"An outgrowth of the Fitzgerald investigation is that the gloves are off in
leak cases," said George J. Terwilliger III, former deputy attorney general in
the administration of the first President Bush. "New rules apply."
How aggressively prosecutors pursue the new case involving the N.S.A. may
depend on their assessment of the damage caused by the disclosure, Mr.
Terwilliger said. "If the program is as sensitive and critical as it has been
described, and leaking its existence could put the lives of innocent American
people in jeopardy," he said, "that surely would have an effect on the exercise
of prosecutorial discretion."
Recently, federal authorities have used espionage statutes to move beyond
prosecutions of government officials who disclose classified information to
indict private citizens who receive it. In the case of a former Pentagon
analyst, Lawrence A. Franklin, who pleaded guilty to disclosing defense
secrets, federal authorities have charged Steven J. Rosen and Keith Weissman,
formerly representatives of the American Israel Public Affairs Committee, a
pro-Israel lobbying group.
The two men have been indicted on charges of turning over information
obtained from Mr. Franklin to a foreign government, which has been identified
as Israel, and to journalists. At Mr. Franklin's sentencing hearing in
Alexandria, Va., Judge T. S. Ellis III of Federal District Court said he
believed that private citizens and government employees must obey laws against
illegally disseminating classified information.
"Persons who have unauthorized possession, who come into unauthorized
possession of classified information, must abide by the law," Judge Ellis said.
"That applies to academics, lawyers, journalists, professors, whatever."
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."
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