It's clear that the New York Times is in big trouble with the announcement that the Department of Justice has launched an investigation into the leaks behind its NSA surveillance story. The investigation is long overdue.

The paper had been warned by the President that national security would be seriously jeopardized if this program were made public, but it nevertheless chose to print it anyway. And it timed the disclosure just as Congress was debating the extension of the Patriot Act, a law which, along with the NSA program, undoubtedly is responsible for the remarkable absence of attacks on US soil since 2001.
 
There has been much debate on the legality of the program. All significant legal opinions in areas of new technology and unprecedented situations are debated. But keep in mind that the President sought legal opinions through normal channels, subjected the program to internal reviews and appropriately advised the Senate and House Intelligence Committee Majority and Minority members of it. Although Senator Rockefeller may have written a private note to himself expressing concerns, none of the members of Congress raised any serious objection to it or took a single step to stop it.

They undoubtedly understood at the time that the President acted out of real concern for the national welfare and in an area not adequately covered by existing law or procedure. And the Rasmussen poll shows that almost two—thirds of Americans agree with the President that the program was necessary, and the normal law enforcement model using warrants constitutes an archaic and impossible hurdle.

This is war, not law enforcement after all.

Professor Charles Fried clearly sets out why the technology being used makes the laws relating to traditional wiretapping and warrants obsolete.  

I am convinced of the urgent necessity of such a surveillance program. I suppose but do not know —— the revelations have been understandably and deliberately vague —— that included in what is done is a constant computerized scan of all international electronic communications. (The picture of a G—Man in the basement of an apartment house tapping into a circuit board is certainly inapposite.)

Programmed into this computerized scan are likely to be automatic prompts that are triggered by messages containing certain keywords, go to certain addresses, occur in certain patterns or after specific events. Supposedly those messages that trigger these prompts are targeted for further scrutiny.

In the context of the post—9/11 threat, which includes sleeper cells and sleeper operatives in the United States, no other form of surveillance is likely to be feasible and effective. But this kind of surveillance may not fit into the forms for court orders because their function is to identify targets, not to conduct surveillance of targets already identified. Even retroactive authorization may be too cumbersome and in any event would not reach the initial broad scan that narrows the universe for further scrutiny.

Moreover, it is likely that at the first, broadest stages of the scan no human being is involved —— only computers. Finally, it is also possible that the disclosure of any details about the search and scan strategies and the algorithms used to sift through them would immediately allow countermeasures by our enemies to evade or defeat them.

If such impersonal surveillance on the orders of the president for genuine national security purposes without court or other explicit authorization does violate some constitutional norm, then we are faced with a genuine dilemma and not an occasion for finger—pointing and political posturing.

But if we had paid attention and didn't share the media's amnesia, we already knew that. In 2002 both the New York Times and Newsweek reported that cumbersome legalities related to the Foreign Intelligence Surveillance Act of 1978 prevented crucial dots from being connected, which could have stopped the 9/11 plot. Federal Judge Royce Lamberth's criticisms and investigation of the FBI official charged under FISA with preparing FISA warrant requests had essentially shut down the process in the critical pre 9/11 period. This, in fact, was the reason why the agency had not sought a warrant to view the contents of Moussaoui's computer, a search which as we now know might have prevented 9/11. Indeed, the Joint Senate and House Intelligence Committee report detailed just that.

The FBI's failure to obtain a warrant to search Zacharias Moussaoui's computer spawned its own whistleblower (and Time Magazine co—Person of the Year), Minneapolis FBI agent Coleen Rowley. Rowley became the darling of the media and the left for essentially accusing the President of failing to ignore the very legalities which are now trumpeted as being outrageously violated by him. Once again, the left and its media allies demonstrate their 'damned if you do, damned if you don't' stance toward George W. Bush. It is hypocrisy of a high order.

But the New York Times' hypocritical arrogance in printing the NSA story was matched by its doomed effort in the Plame case to argue there was a First Amendment right to refuse to respond to the subpoena issued by the Special Prosecutor. A Special Prosecutor whose appointment it had demanded to investigate the non—outing of a non—covert agent, a matter with absolutely no national security implications; a matter which was, in fact, not criminal at all.

They lost that case as we know. And they will lose on that very precedent any effort to refuse to reveal their sources in this matter of the NSA secrets. I expect their sources, who face criminal prosecution,  will not waive any promise of confidentiality, and the New York Times reporters will talk or go to jail. Because executive editor Bill Keller and publisher Arthur 'Pinch' Sulzberger may well have been involved in the story and know the identity of the sources, and have refused to answer questions from their own ombudsmen, public editor Byron Calame, they too could be subpoenaed and compelled to testify or else endure jail time. 

Were the matter less serious, I'd be laughing at the sheer fecklessness of the paper.

Nevetheless, the paper does have its defenders who are already in demand as talking heads. And I am laughing at their efforts.
 
Their first line of defense is at least as absurd as the paper's strategic missteps. As I understand their main contentions they are (a) these were not leakers, but "whistleblowers", and (b) the case shows again the need for a federal law protecting journalists' privilege.
 
Both these argument are preposterous.

5 U.S.C. 1213 sets up the procedures by which federal whistleblowers are to proceed.

Complaints are to be filed with the Office of Special Counsel. If they are found to be of merit and they involve "foreign intelligence or counterintelligence information" and disclosure of information described in the complaint is 'prohibited by law or by Executive order, the Special Counsel shall transmit such information to the National Security Advisor, the Permanent Select Committee on Intelligence of the House of Representatives, and the Select Committee on Intelligence of the Senate.'

These are the very people, as it happens, that the President did fully inform of the program.
 
There is simply no provision in the Act for calling New York Times reporters in lieu of the Office of Special Counsel.

That doesn't mean we will be spared this ridiculous claim. But it does mean that it is an idiotic argument. If it weren't, every intelligence officer could, by that means, decide our national security policy and its legality. Better they should spend their time doing their actual jobs, at which they haven't actually been meriting much praise of late.
 
Only slightly more risible is the claim that this case establishes yet again the need for a federal law granting journalists testimonial privileges. And yet that argument is being forwarded with a straight face: 

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, expressed outrage at the Justice Department investigation into who leaked classified information to The New York Times about the Bush administration's controversial domestic spying program, saying it is even more serious than the Valerie Plame probe.

"This is much more of a classic whistleblower than the Plame case was and that is why the stakes are much higher," Dalglish said. "The public needed to know about it and that is a classic reason why reporters need to protect their sources and it is even more reason why there is a need to have a federal shield law."

Dalglish believes that the seriousness of this case could drive regular citizens to speak out against such investigations and push more for a federal source protection bill to be passed by Congress. "Hopefully the public will begin to understand," she said.

I have no idea in what precinct of Planet Zongo the Reporters Committee for Freedom of the Press is located, but Ms. Dalglish, this is the worst possible case for protecting sources. Those sources, dear lady, just violated federal laws designed to protect national security in the middle of a war started on our own soil. And the reporters who abetted that disgusting act are not worthy of our sympathy.

I can think of no reason why they sat on the story for a year, except commercial and partisan considerations. The Left is claiming the Times should have published the story in time to sway the election against Bush. But public editor Calame notes conflicting statements from the Times about the story's readiness for publication a year ago. No doubt criminal legal counsel employed by the Times is already worrying about getting the story straight.

I seriously doubt the Reporters Committee or the Times will get much support — except from the very people who argued that no matter how well—known it was that Plame worked for the Central Intelligence Agency, anyone who repeated that fact violated the Agee Act; and that the matter was so important a Special Prosecutor had to be appointed and the matter fully and thoroughly investigated until the leakers were named.
 
Clarice Feldman is an attorney in Washihngton, DC.