Leaks, Loons, & Liars

The New York Times' leak of the NSA foreign intelligence eavesdropping program is a little like the mushroom cloud from a nuclear warhead that detonated prematurely - as in inside its silo. It has become a public relations maelstrom that is wreaking havoc on its users while leaving unscathed, and even benefitting, its intended target.

For Democrats - the "users" in the above analogy - the disappointment and frustration and rage at how badly this treasonous gambit has backfired on them has sent most Donks over the edge - or perhaps I should say those few who hadn't gone cuckoo-for-Cocoa-Puffs already:

In a sign of growing partisan division over domestic eavesdropping, the Republican chairman of the House Intelligence Committee on Thursday defended the Bush Administration's limited briefings for Congress on the secret program and accused the committee's top Democrat of changing her position on the issue. ...

The Intelligence Committee chairman, Representative Peter Hoekstra of Michigan, was responding to a statement Wednesday by Representative Jane Harman, Democrat of California, that the law requires that the full House and Senate Intelligence Committees be informed of the N.S.A. program. By briefing only the Republican and Democratic leaders of both houses and of the committees, the Administration violated the law, Ms. Harman wrote in a letter to the President.

In a letter to Ms. Harman, Mr. Hoekstra said the briefings were in compliance with the National Security Act of 1947, which says the committees should be informed of intelligence activities, though "with due regard for" the need to protect secrets.

"The committee has been informed, in good faith by the President of the United States," through briefings he and Ms. Harman attended, Mr. Hoekstra wrote.

He said he was "surprised and somewhat bewildered" by Ms. Harman's letter because she had not previously complained about the briefings. Mr. Hoekstra told Ms. Harman that he found her letter to the president "completely incongruent" with her previous position. "In the past," he said, "you have been fully supportive of this program and the practice by which we have overseen it."

You can see the press bias in the first sentence. There is no "domestic eavedropping"; the NSA program taps overseas calls to numbers in other countries and within the U.S. And there isn't a "growing partisan divide," either. The Dems are simply stupefied that this story hasn't resulted in angry mobs, complete with pitchforks and hissing torches, marching on the White House to grab Bush and Cheney and Rumsfeld and whomever else and drag them away to be hanged from lampposts on the Capitol mall, and they're not willing to let go of the meme. It's like they think this is their last, best shot at bringing down the Bush Administration and it HAS to work, even if they have to re-write history itself.

As a result they're losing their minds. Even the heretofore (allegedly) sane ones like Representative Harman.

The ones that were already 'round the bend are just doing what comes naturally:

Also Thursday, 27 House Democrats sent a letter to President Bush asking for information about the National Security Agency eavesdropping program, including whether communications from or to members of Congress and journalists were intercepted. ...

The security agency's program, disclosed last month in the New York Times, involves eavesdropping without court warrants on the telephone calls and e-mail messages of people in the United States who officials say have been linked to terrorism suspects overseas. ...

Representative John Conyers Jr. of Michigan, the ranking Democrat on the House Judiciary Committee, released the 27 Democrats' letter. It asks for copies of all legal opinions on the spying program; the numbers of Americans singled out; and the names of agencies getting the information the agency collected.

God, that's terrifying. John Conyers being the ranking Dem on House Judiciary, I mean. Can you imagine this paranoid lunatic chairing that committee? Just the thought gives me hives in places I'd rather not scratch.

As to his letter, the expression "in for a penny, in for a pound" comes to mind. The White House - with ample justification, as we've seen - was skittish about even the full Intelligence Committees being briefed on the NSA program; now John Conyers wants his own lock, stock, & barrel copy and twenty-six more for his closest friends. Although, to be fair, I wouldn't mind knowing which journalists, congresspeople, and senators have been in communication with al Qaeda. That would be a handy piece of information to have.

As is this somewhat older example of a vindictive administration spying on an opposing member of Congress:

In a February 2000 interview with CBS's 60 Minutes, NSA operator Margaret Newsham revealed that the agency's listening post in Great Britain was involved in monitoring the phone calls of at least one top Republican on Capitol Hill.

Questioned by 60 Minutes interviewer Steve Kroft, Newsham recalled how she learned of the illegal surveillance:

"I walked into the office building and a friend said, 'Come over here and listen to - to this thing.' And he had headphones on, so I took the headphones and I listened to it, and I looked at him and said, 'That's an American.' . . .

Ms. Newsham remembered, "It was definitely an American voice, and it was a voice that was distinct. And I said, 'Well, who is that?'

"And he said it was Senator Strom Thurmond."...

Asked if it was commonplace for the NSA to monitor the phone calls of top U.S. politicians, Frost told CBS: "Of course it goes on. Been going on for years. Of course it goes on. That's the way it works."

Yet only now, regarding the NSA counter-terrorist program, of a Republican administration, that has nothing whatsoever to do with "domestic spying," does Congressman Conyers belatedly evince concern over the walls of Capitol Hill "having ears."

The problem is not ears, but mouths. Great, big, open ones, now including at least two sitting FISA judges:

On Thursday morning, the Washington Post published an article (“Surveillance Court Is Seeking Answers — Judges Were Unaware of Eavesdropping”) that is jaw-dropping in the matter-of-factness with which reports on an outrageous impropriety by at least two FISA court judges.

The backdrop is that of the eleven judges who sit on the special court created by the 1978 Foreign Intelligence Surveillance Act, only one, Chief Judge Colleen Kollar-Kotelly, was briefed by Administration officials about the NSA’s warrantless eavesdropping program prior to its exposure last month by the New York Times. At least some of the other judges are upset about this. Consequently, the Administration has evidently agreed to brief the full court next Monday.

The paragraph that will be stunning to litigators and honorable federal judges (who, fortunately, constitute the vast majority of the bench) is the following:

Some judges who spoke on the condition of anonymity yesterday said they want to know whether warrants they signed were tainted by the NSA program. Depending on the answers, the judges said they could demand some proof that wiretap applications were not improperly obtained. Defense attorneys could have a valid argument to suppress evidence against their clients, some judges said, if information about them was gained through warrantless eavesdropping that was not revealed to the defense.

Andrew McCarthy, a former federal prosecutor specializing in counter-terrorism cases, knows whereof he speaks when he, not to put too fine a point on it, blows his stack:

These are the judges of the FISA court. Of the hundreds of federal judges in the United States, there are, as already noted, less than a dozen specially chosen for these weighty responsibilities. They are selected largely because they are thought to be of unquestionable rectitude, particularly when it comes to things like leaking to the press.

To find federal FISA court judges leaking to the Washington Post about an upcoming closed meeting with Administration officials about the highest classified matters of national security in the middle of a war is simply shocking.

Even more mind-blowing, though, is to find them discussing what they see as the merits of the issue. Without having heard any facts or taken any submissions on the governing law — and in the cowardice of anonymity — here they are speculating for the media about what positions they might take depending on how the Administration answers their questions. Here they are preliminarily weighing in on the validity of defense claims in cases where FISA evidence was introduced. This is an inexplicable judicial misconduct.

If a judge pulled a stunt like this in a run-of-the-mill criminal case, it would be grounds for his removal. To have FISA court judges doing it is astounding. The Administration would be well within its rights to decline to provide the briefing the FISA court has asked for.

At a frakking minimum. Those judges should be removed not only from the FISA court but kicked off the federal bench altogether.

I do differ with McCarthy on one thing: there is nothing "inexplicable" about this judicial misconduct. These judges are partisan Democrats, and for partisan Democrats, whatever their official role, one principle trumps all other considerations: party comes before country. Their not engaging in this unethical and seditious anonymous speculation is what would have been inexplicable.

Meanwhile, now that there is a real national security leak investigation underway, the Grey Lady's assuming the role of Mata Hari may actually earn some of its employees extended stays in the Greybar Hotel:

The New York Times reporters who broke the Bush "Spygate" story, as well as the paper's top executives who approved its publication, face the very real prospect of criminal indictment by the Bush Justice Department - a lawyer involved in the 1971 Pentagon Papers battle is warning.

With a full-blown Justice Department investigation now underway, Harvey Silvergate tells the Boston Phoenix: "A variety of federal statutes, from the Espionage Act on down, give Bush ample means to prosecute the Times reporters who got the scoop, James Risen and Eric Lichtblau."

Silvergate asserts that such a prosecution would be "revenge" rather than justice, as though the the entire bogus "Plamegate" kerfuffle wasn't a Bushophobic witchhunt, and as though the Administration wouldn't have a case - which they clearly do:

Assuming that the terms of the statute (18 U.S.C. § 798) apply to the leaks involved in the NSA story, has the Times itself violated the statute and committed a crime? The answer is clearly affirmative. The statute makes knowing and willful publication" of the proscribed information a crime. Moreover, under the basic federal aiding and abetting statute - 18 U.S.C. § 2 - in willfully helping the leakers publish their disclosures, the Times is as culpable as they are and punishable as a principal.

And the Times can't hide behind the First Amendment, either:

In New York Times Co. v. United States, 403 U.S. 713 (1971)("the Pentagon Papers case"), the Supreme Court held that it was presumptively unconstitutional for the government to restrain the publication of classified information. In separate opinions concurring with the order allowing the Times to continue publication of its Pentagon Papers stories, however, a majority of the justices clearly contemplated that the Times could be held responsible for any violation of the law involved in publishing the stories....while prior restraint is essentially prohibited, post-publication criminal responsibility is not.

David Yerushalmi, counsel to the Institute for Advanced Strategic and Political Studies, concurs with Brother Trunk in the American Spectator and adds the moral cherry atop the legal sundae:

The Times would have the U.S. Constitution be understood to mean that unelected judges have the authority to overrule the acts of the elected Commander-in-Chief, that Congress has the authority to criminalize the exercise of the President's constitutional responsibilities, and the Press has the responsibility and the authority to disclose any top secrets it deems harmful to the cause of freedom. This position on its face contradicts the expressed language of the Constitution and the Espionage Act.

The Times should be held to the same standard as all other citizens.

Which is another way of saying that the collective efforts of the American Left to cripple national security for partisan political reasons has become a criminal conspiracy in addition to a psychopathic obsession. And while I have to agree with Brother Hinderaker's contention that the Bushies won't touch going after the "newspaper of birdcage bottoms," I think they would be well-advised to do so. Not only would they garner far more public support than they think, but it would draw a desperately needed line of precedent in the sand that the pursuit of partisan politics does not entitle one to immunity from the rule of law.

I believe that was the basic lesson of Watergate. It's one that lefties are long overdue to have administered to them first-hand.

Hopefully the feds will convert the subsequent prison cells into rubber rooms. To say that their occupants will be bouncing off the walls will be bald understatement.

[H/T: CQ]