President Bush in today's radio address, emphasis and annotations [in brackets] mine.
In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.[1] Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.[2]
This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies. Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.[3] Revealing classified information is illegal, alerts our enemies, and endangers our country.
As the 9/11 Commission pointed out, it was clear that terrorists inside the United States were communicating with terrorists abroad before the September the 11th attacks, and the commission criticized our nation's inability to uncover links between terrorists here at home and terrorists abroad.[4] Two of the terrorist hijackers who flew a jet into the Pentagon, Nawaf al Hamzi and Khalid al Mihdhar, communicated while they were in the United States to other members of al Qaeda who were overseas. But we didn't know they were here, until it was too late.
The authorization I gave the National Security Agency after September the 11th helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities.[5] The activities I have authorized make it more likely that killers like these 9/11 hijackers will be identified and located in time. And the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.
The activities I authorized are reviewed approximately every 45 days.[6] Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland.[7] During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation's top legal officials, including the Attorney General and the Counsel to the President. I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.
The NSA's activities under this authorization are thoroughly reviewed by the Justice Department and NSA's top legal officials, including NSA's general counsel and inspector general.[8] Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it.[9] Intelligence officials involved in this activity also receive extensive training to ensure they perform their duties consistent with the letter and intent of the authorization.[10]
This authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power under our laws and Constitution to protect them and their civil liberties. And that is exactly what I will continue to do, so long as I'm the President of the United States.
Now, this is a very direct statement. If I had to guess, I'd guess that Bush is angry — livid, chair-throwing angry — about this revelation, especially since the Times said in so many words that they withheld publication for a year because publication could harm national security. This raises the interesting question, what changed? If it would harm national security on 1 December, what made it publishable on 16 December?
It would appear that the Times is admitting that they released this information, knowing it would damage national security.
18 USC 793 (emphasis mine):
(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense,
(1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or
(2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.
That's the Espionage Act. Ten years. Expect a criminal investigation, and it's not going to require a referral from NSA — although I understand NSA has already made one.
Notes: Bush is saying —
- This is important. These are not communications internal to the US.
- It's based on other intelligence, establishing that the person involved is connected to a terrorist network. I'm not a lawyer (and that caveat should be read in all of this) but it appears to me that 50 USC 1801 (b)(2)(C) defines anyone who is believed to be part of a terrorist network is an "agent of a foreign power" under the act, and not a "US person".
- He's explicitly saying this revealed "sources and methods"...
- ... and that the sources and methods are the ones that the 9/11 Commission criticized the intelligence community for not having.
- It was legal and within Bush's power.
- This was done and reviewed periodically every 45 days.50 USC 1802 says:
(a)
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year.... - This defines them as "terrorists" under 50 USC 1801(c).
- It was reviewed by the government's lawyers.
- Congress was notified as required under 50 USC 1808.
- "Minimization" procedures required under 50 USC 1801(h) were in place and performed.
I don't think any claim that this was "illegal" will stand up to scrutiny.
Discussion: For some time, one of the topics of interest on this blog has been the question of what is happening with these leaks. It looks to me like this is a sign that the Bush administration has (finally?) decided to act. I think this is the opening shot of a "pushback" that may well involve criminal prosecution of both reporters and members of the intelligence community, and very possibly a Tom-Clancy-esque revelation of leaks from within the Senate.
It's going to be very very interesting indeed.
Updates:
- Jeff Goldstein has an excellent post up.
- Make that two excellent posts.
- 2005-Dec-17 12:43:27 — corrected a typo (1801 vice 1800) and a link atrocity from Blogger.
- Silent Running points out Executive order 12333 as well.
- Mark Levin has some interesting points.
- RightWingNutHouse (Gods, I wish they'd picked another name for the blog):
First, for the President to use the term “improperly provided” regarding a leak involving the National Security Agency is a monumental understatement. The NSA has extraordinarily strict rules about things like leaks. In short, if you’re an employee and you get caught leaking, you go to jail for a very long time.
Very much my experience with the NSA, by the way. - Tom McGuire asks some interesting questions too.
- Captain Ed weighs in, and points out that ...
- The Washinngton Post wonders about the timing too.
- Just continuing to beat this moribund ungulate, Baldilocks has some good words too.
Later update, 2005-Dec-18 15:08:46: In Stop the Bleating says:
Drop the specious arguments that the warrantless eavesdropping ordered by Bush somehow complies with FISA or some other federal statute. It doesn't. If it did, the White House would have issued a detailed explanation first thing Friday morning and would be repeating it loudly, ad nauseum.
But actually if you look at Bush's radio address, I think that's exactly what he did. I'm trying to track down legislative history, but §1801(a) defines people engaged in international terrorism as a "foreign power" and "agents of a foreign power". §1802 points to 1801(a)(1-3) in defining the exception, but I'm willing to bet that when that section was written, (1-3) were all there was of (a) ... and that a court would find that the intent of §1802 was to include all "agents of a foreign power" under §1801(a).
"USA v bin Laden" defined foreign terrorists as "agents of a foreign power" referring merely to (a)(1-2), so there's precedent to think that §1802 applies anyway.
As I show above, I think the radio address was exactly an argument that §1802 applies.
(This update, by the way, is a slight modification of a comment I left there.)
Okay, as I said I was planning to, I've closed comments on this now. Further comments can be applied to the post above.
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