WASHINGTON — 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 on Dec. 30.
"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, would not comment.
Disclosure of the secret spying program two weeks ago brought 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 Dec. 30 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.
But Sen. Charles Schumer, D-N.Y., appearing on "Fox News Sunday," said the
Justice Department investigation should explore the motivation of the person who
leaked the information.
"Was this somebody who had an ill purpose, trying to hurt the United States?"
Schumer asked. "Or might it have been someone in the department who felt that
this was wrong, legally wrong, that the law was being violated?"
Duke University law professor Scott Silliman said the Justice Department was
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
was 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 was 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 Foreign Intelligence Surveillance Act court
established to oversee highly sensitive investigations involving espionage and
terrorism — after the FISA court began second-guessing Bush administration requests
for surveillance warrants, according to press reports.
Administration officials insist 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. And they say Congress had been briefed on the program.
Bush is standing firmly behind his domestic spying program, saying his
decision to let the intelligence community listen in on phone calls Americans
have with suspected terrorists is lawful and does not result in widespread
domestic eavesdropping.
"The NSA program is one that listens to a few numbers," the president told
reporters after visiting wounded troops and their families at Brooke Army
Medical Center in San Antonio, Texas.
"In other words, the enemy is calling somebody and we want to know who
they're calling and why," Bush said.