US investigates leak of spy program

Prosecutors focus on disclosure to New York Times

By Dan Eggen, Washington Post | December 31, 2005

WASHINGTON -- The Justice Department has opened a criminal investigation into recent disclosures about a controversial domestic eavesdropping program that was secretly authorized by President Bush after the terrorist attacks of Sept. 11, 2001, officials said yesterday.

Justice Department prosecutors will focus on whether classified information about the program was unlawfully disclosed to The New York Times, which reported two weeks ago that Bush had authorized the National Security Agency to monitor the international telephone calls and e-mails of people in the United States without court-approved warrants, officials said.

The Justice Department's decision to disclose the opening of a criminal investigation is rare, particularly given the highly classified nature of the probe. The deputy White House press secretary, Trent Duffy, told reporters in Crawford, Texas, yesterday that the Justice Department ''undertook this action on its own" and that Bush only learned about it from senior staff earlier in the day.

But Duffy reiterated earlier statements by Bush, who had sharply condemned the disclosure of the program and argued that it seriously damaged national security.

''The fact is that Al Qaeda's playbook is not printed on Page 1 and when America's is, it has serious ramifications," Duffy said, reading from prepared remarks. ''You don't need to be Sun Tzu to understand that," he added, referring to the Chinese general who wrote ''The Art of War."

Leak investigations generally begin with a referral to the Justice Department by the agency in question -- in this case the NSA -- which prompts a preliminary inquiry by prosecutors to determine whether a crime has been committed. The opening of a criminal investigation signals that prosecutors believe that laws barring disclosure of classified information by government officials were broken, and will bring with it a full-blown probe involving FBI agents and Justice Department investigators.

The case is the latest in a series of clashes between the media and the Bush administration, which has aggressively enforced restrictions on classified information and has frequently complained about media disclosures related to terrorism or the war in Iraq.

Earlier this year, a grand jury investigation by special prosecutor Patrick Fitzgerald into the disclosure of CIA agent Valerie Plame Wilson's identity resulted in the jailing of former New York Times reporter Judith Miller for refusing to testify and in criminal charges against former vice presidential adviser I. Lewis ''Scooter" Libby. That probe is ongoing.

In another recent case, the CIA General Counsel's office in November notified the Justice Department that classified information had been disclosed in a report by The Washington Post on the existence of secret ''black site" prisons in Eastern Europe and elsewhere. Justice Department officials declined to comment yesterday on whether that referral has also led to a full criminal probe.

News of the domestic spying program by the NSA, which is normally restricted to eavesdropping overseas, set off a firestorm of criticism from legislators and civil liberties advocates and contributed to the administration's failure to persuade Congress to pass a renewed version of the USA Patriot Act antiterrorism law. The Republican head of the Senate Judiciary Committee has vowed to hold hearings on the NSA program, while some other Republicans have demanded a congressional probe into the leaking behind the report.

The spying program also angered judges on a special court that administers the Foreign Intelligence Surveillance Act, which governs clandestine surveillance within the United States and which requires warrants for secret searches and wiretaps. One panel member, James Robertson, resigned from the secret court in protest, according to sources familiar with his decision.

Soon after the story broke on Dec. 16, Bush and other administration officials took the unusual step of publicly acknowledging the program's existence, describing details of its operation and arguing that the initiative was both legal and necessary in a time of war. Attorney General Alberto R. Gonzales said the program ''is probably the most highly classified program that exists in the United States government."

The Times has said it held the story for a year after the administration argued its disclosure would harm national security. The published story relied on ''nearly a dozen current and former officials," the newspaper said. Times spokeswoman Catherine Mathis declined to comment on the Justice Department probe yesterday.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, a journalism advocacy group, said the leak probe underscores the need for a federal ''shield law" to protect reporters' sources. She and other observers also said the NSA case seems to be less controversial, from a journalistic point of view, than the Plame Wilson case, which involves journalists trying to protect sources allegedly engaged in political attacks.

''It doesn't seem to me that this leak investigation will take on the importance" of the Plame Wilson case, said Carl Tobias, a law professor at the University of Richmond. ''The bigger story here is still the one about domestic spying and whether the president intends, as he said, to continue doing it."

The American Civil Liberties Union, which has argued that a special prosecutor should be appointed to determine whether Bush violated federal wiretapping laws, called the leak probe an unwarranted attack on whistleblowers.

''Attorney General Gonzales is cracking down on critics of his friend and boss," said Anthony Romero, executive director of the ACLU.

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