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Some people say the domestic spying was illegal. Some say it was legal. If it was illegal, then the leaker is a whistleblower. It if was legal, then the leaker gets tossed in jail.

So, won't the legal proceedings surrounding the leak hinge on whether President Bush broke the law or not? By prosecuting these leaks, isn't DOJ indirectly putting the president on trial?

that Justice has no doubt that it was legal, otherwise they wouldn't be investigating the leak.

.....you would think Justice could see that there wasn't illegality with the Plame case and they carried through that investigation.

BTW, I haven't heard the 4th point of contact crack in a good long time.

this with the same diligence they have pursued the non-outing of the non-covert agent Plame.

Of course AGAG and his department think the domestic spying was legal. But there will be trial that will hinge on whether a jury thinks it was or not. Obviously, if DOJ loses the case, they're not going to throw Bush in jail, but the strategy does seem risky from a political standpoint.

There is no reason to bring this to trial. First, I'd inflict enormous financial pain on the leakers by forcing to hire lawyers then I'd terminate their security clearances, an administrative action that is virtually impossible to appeal, and then terminate their employment because of their lack of security clearance.

If there is no clear cut proof but suspicion, you move the suspected leakers into deadend jobs and end their chances for advancement.

Why would anyone go to trial over this and have to put up with disclosure, depositions, etc?

First you said you wanted a perp walk. Now you just want the leakers in dead-end jobs? Seems like a big difference to me.

why leak anonymously? Stand up and tell the world about how the Bush admin is breaking the law, be a hero and receive the much deserved whistleblower glory and book royalties.

Yes, by the third paragraph, its the Bush administration that has suffered under many controversial leaks, and one even led to criminal charges against a administration official!  

Don't you imagine that this will be tough for some reporters, who really do like juicy drama, yet have to keep it toned down, as the fire grows?  My perfect firestorm would pit paper against paper, or maybe a Newsweek expose of the NYT, all in the hopes  of a socialist liberal journalist civil war.  You know, like the one they are still hoping for in Iraq.

Arrest them. Book them. And drop the criminal charges in favor of administrative charges.

Nothing prevents that.

...I've been saying the samething over at Outside the Beltway.

I'd like to hear some expert legal analysis. In my ignorance I do however question your assumption. The leaked information was classified and so leaking it is criminal. If the leaker had doubts about the program, the leaker should first pursue other official avenues rather than going public. Unless all the other branches of government contacted were found to be corrupt, how could the leaker justify going public with top secret info? All the debate shows legality is a close call at best, so I don't see how the court gives the leaker a pass pending the leaker's legal challenge to the program. Much less do I see how the jury would accept this kind of argument.

...as we get to watch them eat their own, and hypocritically denounce leak investigations for their chilling effect.

Et tu, Joe Wilson.

is what some want, not money or fame.  Look at the motivations of the glorious and highly trumpeted DEEP THROAT.  Power, equally corruptive as money and fame.

If you think what is going on is illegal, stand up and be counted, don't hide behind the "anonymous source" tag.

I think you're a little bit too enthusiastic, with your comments about how the Justice Department views the legality of what GWB/NSA was doing.

As just one example: AGAG would quoted as saying that initially Justice discussed the idea of amending the FISA law with "certain Members of Congress" (sure wish we knew who they consulted) and the Administration decided AGAINST moving ahead with an amendment to the law.

It's not hard to believe that if the Bush White House asked some in Congress about amending the law in order to move ahead of the NSA program, that there are people at high levels of the Justice Department who did not believe that current law authorized GWB to move ahead with this program.

I'm not taking a position one way or the other, myself.  I'm just trying to make the point that it appears to me that some high-level Justice Department officials wanted to amend the law in order to move ahead with this program, and that for some currently unknown reason, the White House decided AGAINST that strategy.

A reasonable person could look at these events and draw the conclusion that the legality of the NSA program is NOT a given.

A Reasonable Person

on the consideration of amending FISA was that they decided against it because they couldn't do it without effectively disclosing the program.

Maybe that's just a talking point, but it sounds reasonable. If they thought they had the ability anyway from the "use necessary force authorization" (also a reasonable conclusion, IMO), why risk blowing the program just to amend for clarity purposes.

We, that is to say that Nation, may well be moving down the road to a SCOTUS decision on what authority the POTUS did get, and did not get, from the post September 11th resolution.

To my mind, that clarity may be a very good thing.  I'm not 100% certain, but a part of me welcomes that process.

BTW, sure hope that everyone here at RedState is fully prepared for the possibility of a Democratic President (Hillary Clinton?) aggressively utilizing the Chief Executive's authority.

Me?  I'm somewhat troubled by the larger direction about where the US is headed, in part because there won't be GOP Presidents forever, so when the Democrats elect a new POTUS, I fear that this almost unlimited authority that GWB has been claiming for years will come around to bite the Ameican people in ways that we simply cannot imagine right now.

There's a good reason that the Chinese cliche is "be careful about what you ask for..."

A Reasonable Person

Let me add my two cents:

(1) From what I understand, there are no federal whistleblower statutes which will protect the leaker from criminal prosecution.  Whistleblower statutes protect government employees from retaliatory firing, but they aren't a defense to criminal acts.  So it shouldn't matter whether or not the NSA wiretapping is "legal" or not.  Divulging classified information is a crime, period.  That's true whether you are the leaker here, or, say, Karl Rove.

(2)  Remember Plamegate?  Conservatives were quick to say (as a defense, I guess) that "everyone knew" Plame was a covert CIA agent, so it wasn't truly classified.  Recall that when the NY Times reported on NSA program, it did so only after someone else publicly exposed the program.  (In fact, the NYT sat on the story for a year or so, right?)  So why is the focus on the leak to the NY Times?

And let's be frank.  At least the "liberal" Times didn't spill the classified information (unlike Novak).  Not until the cat was out of the bag.

Anyway, speaking for myself, I am happy to let the chips fall where they may, but I would prefer that all culpable parties -- whether they be leakers or illegal wiretappers or Presidents -- get their just deserts if that's what the law demands.

There are many things that separate liberals and conservatives, but I think we can all agree that nobody -- no President and no low-level intelligence employee -- is above the law.

All we have to do is figure out what the law is.

http://releases.usnewswire.com/GetRelease.asp?id=58545

REPORTER: I wondered why, you had said that, you were told it was difficult, if not impossible to get Congress to reauthorize the FISA, the warrant for eavesdropping. How is it that you and the administration can enforce the resolution, granted the authorization that is impossible to get in another...

(Inaudible)

ATTORNEY GENERAL: I'm here to talk about the Patriot Act. But I will answer the one question, because I read the quote. Someone showed me the quote in The Washington Post. What I said, or what I surely intended to say, if I didn't say is that we consulted with leaders in the congress about the feasibility of legislation to allow this type of surveillance. We were advised that it would be virtually impossible to obtain legislation of this type without compromising the program. And I want to emphasize the addition of, without compromising the program. That was the concern. (Inaudible)

They elected not to ask for an amendment because the amendment process would end up disclosing significant information about the program.

someone has to get standing before it goes to court. Right now there are some lawyers trying to say their clients were convicted based on these intercepts and get into court that way.

I think the Supremes would say this is a political not a legal decision as the evidence isn't being used in court.

Stand up and tell the world about how the Bush admin is breaking the law, be a hero and receive the much deserved whistleblower glory and book royalties.

Except that's not been the experience of most whistleblowers, and I think you know that.  They get shunned (if not fired) from their job, become involuntary celebrities, get threatening emails and letters, often face expensive legal battles (certainly this one will, don't you think?), and have a hard time getting new employment.

But I'm not prepared to assume, as many of you are, that the leaker is a "whistleblower" in the sense that he/she was trying to right an injustice.  It may have been some guy simply passing information to a old friend -- "showing off" perhaps for an old war buddy (who happens to be a reporter) or something.

I really love the AG. They should get him out more. This should shoot down Specter's inane idea to have hearings on spying for God's sakes. These issues in war have always been discussed behind closed doors back when both parties were sane and loved America more than party power when we are at war.

But I love the way Gonzales crystalized the matter.

Scr*w that, I wanna see Rockefeller or some other high ranking elected Dem hiding from the cameras.  Culture of Corruption, my butt.  Anti-Amercianism trumps that any day.

And whether or not this electronic surveillance was illegal or not, leaking was not the proper way to go.  If a CIA operative had misgivings over it there is a chain of command.  It may not have given them the satisfactory results s/he envisioned, but that is the way in any organization.

For all you libs who believe Colleen Rowley was such a great hero whistleblowing the lack of connecting the dots, you should be appalled that now the dots are busted apart again due to this leak.

But I'm not holding my breath. I posted elsewhere today that we are in uncharted water with this situation where we are in military conflict (War to some) that is not going to end with a Treaty of Versaille/Battleship Missouri outcome.

This situation, IMO, is going to be representitive of the types of conflicts we are involved in going forward, so do need some consensus on the new set of rules we will use. I give the Bush admin credit for trying to navigate this new situation as effectively and reasonably as possible, and I see few others offering anything constructive.

I respect your concern with "unlimited authority" but this is not a new problem- with Lincoln/habeas corpus and Rooselvelt/Japanese internments as the widely cited examples of wartime civil liberties issues in our past. But we survived those situations, and are not living in "1984" today. I don't know how this current situation is going to turn out, but so far the NSA stuff is not nearly on the same level as the other examples I cited.

A final tangentially related thought- wouldn't it be ironic if there was a challenge on the AUMF as you suggest, and  as a result SCOTUS wound up throwing out FISA. I wouldn't bet against it.

we need more lefties who can do more than sling talking points.

See you next year.

This is what I think would happen to someone who blew the whistle on illegal activity by the Bush Admin.

Add Pinch Sulzberger and/or Dana Priest with Jay Rockerfeller being frogmarched to prison, and I will agree fully.

wouldn't like to be Time's person of the year.  At least I wouldn't.

Becoming Time's "Person Of The Year"?  What's that supposed to show me?

Perhaps you should read the accompanying article.  Like I said, whistleblowers don't exactly have an easy go of it.

And I am always pleasently shocked when the law and my common sense track.

The only political risk is the fact that this will ensure that the story remains a hot news item, meaning every night MSM pundits will be "troubled" by this.

However, the recent Rasmussen poll showing 64% of Americans approve of the government's action in this case makes this seem pretty safe at the moment.  Combine this with Bush's own approval rebounding, and this all seems like very little political risk.  It's time for the people who claimed their support of Plamegate was purely out of principle to have their true colors revealed.

Shaggy dog,  good point and congrats.

I'm a little confused by your comment "At least the "liberal" Times didn't spill the classified information (unlike Novak).  Not until the cat was out of the bag."

From the Washington Post: "Justice prosecutors will examine whether classified information was unlawfully disclosed to the New York Times, which reported two weeks ago that the National Security Agency had been conducting electronic surveillance on U.S. citizens and residents without court-approved warrants."

Am I missing something here?  This information was first revealed to America at large by the Times, just as Novak was the first press story regarding Plame, to my knowledge.

does not matter.  The people who leaked this info should be locked in Leavenworth forever.  The reporters and editors of the media in question should be closely investigated for criminal charges as well.

Two points on my conclusion.  First, the "whistleblowers" had several options open to them other than WaPo and the NYT.  They could have gone to DoJ.  They could have gone to the Senate or House Intel Committee.  They didn't.  There's no record that they even tried.  It's pretty obvious that the leakers knew the Congress was briefed on the programs in question.  It's also pretty obvious that they are in a position to know that these programs have been on-going, or at least on the books, for several Administrations.  Knowing all that, they exercised the option that they had to know would do the most damage to our intel capability while hopefully damaging the Administration by going to the MSM.

Second, the material released was very highly classified.  No one with access to that type of material has the authority to decide that it's no longer classified.  If these people can be found and are not prosecuted, you can forget the classification process.  Everything becomes subject to the individual judgement of the people involved.

IMO, if a case can be made for treason, the leakers should be tried as traitors and executed.  If the case for treason cannot be made, they should sentenced to the longest possible prison term and subject to the highest possible fines to the point of bankrupting their families.

I don't think anyone's arguing that we want our CIA to be leaking information on secret programs, but shouldn't we be a little more concerned that our government is running torture facilities in other countries?

Loyalty to the government, the party, etc are admirable traits - but the fact that the US is involved in torture hurts us in many ways. Most prominently it endangers our troops in the field. The Geneva convention was written to safeguard all POW. Say what you will about Iraq insurgents, but it is still a War. If we torture, we lose the right to be surprised when they predictably reciprocate.

If the leak was about Iraq strategy, a suspected terrorist, etc then brand the leaker a traitor, tar and feather them and feed em to the sharks. But when it's a concerned citizen acting for the safety of both our moral authority and our troops then I don't think this witch hunt is the right course of action.

Even the president has now accepted the amendment against torture.

I don't think anyone's arguing that we want our CIA to be leaking information on secret programs...

You think wrong.  Plenty of people are arguing for precisely that, and many of them are elected Democrat members of Congress.

... but shouldn't we be a little more concerned that our government is running torture facilities in other countries?

Conjecture much?

As to the rest, I've lost my taste for tripe of and it's far too early in the New Year to try to obtain it once again.

BTW: Happy New Year, RedState.

ELINT is the acronym for "ELectronic INTelligence."  It's a subcomponent of the SIGINT (Signals Intelligence) discipline.   Basically, when you collect ELINT, you're collecting against radars.

From what I've seen, the NSA "domestic spying" kerfluffle is about NSA collecting COMINT (Communications Intelligence).  That's not ELINT.

I'm pointing this out because (1) I can't miss a chance to comment when geek-centric intelligence issues (which are near/dear to my heart) are discussed on Redstate; (2) I've seen ELINT associated in print with the NSA kerfluffle a few times, and wanted to set the record straight and (3) I wanted to spare any Redstaters the embarassment of being "set straight" by Kos or some other lib commentator.

Glad to see that Redstate is back up on the air.

WAS HIGHLY CLASSIFIED don't you understand?  And while we're at it, there are several perfectly legal avenues to pursue if you have access to classified information and you think the Administration is breaking the law.  Your options include DoJ and Congressional oversight committees.

With respect to your comment If we torture, we lose the right to be surprised when they predictably reciprocate..., that probably won't last out the entire year as the most stupid comment of the year, but it'll be in the top ten.  Check recent history.  The groups with which we are at war use REAL torture as a method to get on the front page of the NYT with hope of scaring the heck out of people just like you.  They do not need any reason provided by us.  The only people who use the "waterboarding is torture" meme is our media, the Democratic Party, the Europeans and John McCain, America's most dangerous Senator.

If the program was legal the leaker disclosed national security secrets and should be prosecuted.

If the program was illegal the leaker disclosed national security secrets and should be prosecuted.

Frankly I'm not interested in the so-called whistleblower argument. A traitor is a traitor.

Hey, why is it that of all the people here posting their opinions on a legal matter, the only person who appears to have one grounded in an actual legal background is from the party the site isn't directed towards? Does that strike you as ironic?

Some of us lawyers don't do free legal analysis on weekends.

Just a thought.

No need to throw around insults. We're both americans, and we have plenty of enemies without attacking each other.

With regards to your comment about terrorists already using torture, does that make it acceptable that we do? Are we taking our moral cues from terrorists? All I'm saying is that we need to stay on the moral high ground. "He started it" hasn't worked since I was a little kid.

If the leaker truly did bypass viable means of oversight then that's a problem, but my worry still stands. We need to address both why people are leaking information, and why we are engaged in, at best, questionable activities. Democrats scream about the latter, republicans about the former - can't reasonable people see that both issues are worth honestly discussing? I really don't think this should be a partisan issue...

You're right, the fun and games have gone on too long.

Nothing in the information currently available leads me, and many, many others, to a conclusion that there is anything illegal, immoral or fattening going on with the NSA activity.

The leaks are clear and undiputed and are illegal by any measure.

There is a considerable difference.

And we don't torture.  Anyone who cites either Abu Ghrabe or waterboarding hasn't the slightest concept of torture.

We don't take moral clues from our enemies.  And that's why the ridiculous, politically motivated "argument" that our military (or CIA for that matter) engages in torture is so maddening.  The primary perps of this argument - Harry Reid, Dick Durbin, John McCain - should be hounded from the public scenne.  They are a disgrace.

With reference to "why" people are leaking, the answer is easy.  Since the information is "highly classified" (so highly classified that paragon of American spirit Jay Rockefeller couldn't even discuss it with his counsel), the leakers are political opportunists or they are getting paid.  In either case, I would like to see DoJ make a case for treason.  At the very least, they should be rooted out, tried and convicted and sentenced to the longest possible prison terms and the highest possible fines.  I would certainly hope the fines will require their families to liquidate every asset they have, down to their retirement accounts, houses, cars, kids college funds, every last nickle.  They can live in a homeless shelter with a judgement against any and all future income for all I care.  And I hope Bill Keller and his counterpart at the WaPo, along with the "journalists" who broke the stories have cells right along side the traitorist sob's.  (That's a son of benedictarnold...)

Classified leaks have to be stopped.  Now.  And with respect to the partisianship of the issue, take that up with the leadership of the Democratic Party.  They are complicit in the leaks.  If anything, they are worse than the leakers.  And by the way, the only "reasonable" Democrat on this issue is Lieberman.

Cutting civilians heads off and dragging their bodies through the street I'll worry about taking moral cues from the enemy.