December 22, 2005
The Valerie Plame Precedent
By Jack
Kelly
Finally,
some good may come from the Valerie Plame kerfuffle -- if President
Bush and Attorney General Alberto Gonzalez have the stones to
do what's right.
A grave crime
was exposed Dec. 16th when New York Times reporters James
Risen and Eric Lichtblau published a story revealing President
Bush authorized the National Security Agency to listen in on conversations
between al Qaida suspects abroad and people in the United States
without first obtaining a warrant.
"We're
seeing clearly now that (President) Bush thought 9/11 gave him
license to act like a dictator," wrote Newsweek's
Jonathan Alter. But the scandal was not the program Risen and
Lichtblau wrote about. The scandal is that they wrote about it.
The intercept
program has uncovered al Qaida plots, and public exposure cripples
it, Air Force Gen. Michael Hayden said at a news conference Monday.
Now deputy director of National Intelligence, Hayden was head
of the NSA went the intercept program was started.
Among the
plots uncovered was one by Iyman Faris, a naturalized U.S. citizen
living in Ohio, to blow up the Brooklyn bridge, sources say. Faris
discussed the plan on the phone with Khalid Shaikh Mohammed, then
al Qaida's operations officer.
Alter and
others in the news media assert the intercept program is illegal,
and unprecedented. It is neither.
"The
Department of Justice believes, and the case law supports, that
the president has the inherent authority to conduct warrantless
physical searches for foreign intelligence purposes," said
Jamie Gorelick, deputy attorney general under President Clinton,
in testimony to the Senate Intelligence Committee on July 14th,
1994.
"It's
important to understand that the rules and methodology for criminal
searches are inconsistent with the collection of foreign intelligence
and would unduly frustrate the president in carrying out his foreign
intelligence responsibilities," she said.
Risen and
Lichtblau chose not to mention this story, which appeared in the
New York Times on Nov. 7th, 1982:
"A
federal appeals court has ruled that the National Security Agency
may lawfully intercept messages between United States citizens
and people overseas, even if there is no cause to believe the
Americans are foreign agents."
Even the
feckless Jimmy Carter issued on May 23rd, 1979, an executive order
authorizing the attorney general "to approve electronic surveillance
to acquire foreign intelligence information without a court order."
Carter cited
as the authority for issuing his order the Foreign Intelligence
Surveillance Act Congress had passed the year before, and which
Alter and other hyperventilating hypocrites claim Bush has violated.
Why would
Carter think that? Perhaps he read -- as evidently Alter hasn't
-- section 1802 of the FISA law, which says: "the President,
through the Attorney General, may authorize electronic surveillance
without a court order... to acquire foreign intelligence information..."
In a 2002
case, the special court that hears appeals in FISA cases said
the president "did have inherent authority to conduct warrantless
searches to obtain foreign intelligence information."
The news
media didn't think warrantless electronic surveillance was a threat
to our liberty when Democratic presidents authorized it. National
Review's Byron York, who dug up the Gorelick testimony mentioned
above, noted the Washington Post reported on it on Page
A-19.
It is despicable,
but not illegal, for the news media to publish vital national
secrets leaked to them. But the leakers have committed a felony.
Those who
have demanded severe punishment for whoever it was who told reporters
Valerie Plame worked at the CIA have been remarkably forgiving
about who leaked the existence of the NSA intercept program, which
-- like the earlier leak of secret CIA prisons for al Qaida bigwigs
and unlike the Plame kerfuffle -- has done serious harm to our
national security.
But fortunately,
by clapping New York Times reporter Judith Miller in
irons until she talked, overzealous special prosecutor Patrick
Fitzgerald has set a valuable precedent.
Attorney
General Gonzalez should subpoena Mr. Risen and Mr. Lichtblau,
and have them cited for contempt of court if they do not disclose
their source or sources. Maybe they could share Judy Miller's
old cell.
Jack
Kelly is national security columnist for the Pittsburgh Post-Gazette
and the Blade of Toledo, Ohio.
