The Twilight Zone, part 3

Don’t miss John’s invaluable analysis of the legal issues raised by the NSA program: “On the legality of the NSA electronic intercept program.” In my view, the legality of the NSA program described by the president and the New York Times is overdetermined for the reasons spelled out in the Department of Justice letter released yesterday. Parts of the letter are conclusory; John’s lengthy analysis provides the legal support for those parts of the letter.

Lending support to the part of the Department of Justice’s analyis that is based on the Congressional Authorization for the Use of Military Force is the outline of the issues by University of Chicago Law School Professor Cass Sunstein: “Presidential wiretapping: Disaggregating the issues.” Our friend Hugh Hewitt interviewed Professor Sunstein on Hugh’s show last night for a highly informative 30 minutes of radio. Radioblogger has posted the transcript of the interview here.

For a good column summarizing some of the key points, see yesterday’s column by Oregonian associate editor David Reinhard: “Warrantless surveillance.” I think it’s the New York Times that has entered that zone “between the pit of man’s fears and the summit of his knowledge” known as “The Twilight Zone.”

Permit me to repeat one key point. The Times story is based on leaks of classified information by “nearly a dozen” current and former government officials. Whatever ambiguity may exist regarding the legality of the NSA program — I don’t think there’s much, and whatever there is derives from our lack of knowledge of all relevant facts — does not exist regarding the leaks. Federal law (18 U.S.C. § 798) prohibits the disclosure of several narrowly defined categories of information, specifically including classified information regarding communications intelligence:

a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

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(3) concerning the communication intelligence activities of the United States or any foreign government…

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Shall be fined under this title or imprisoned not more than ten years, or both.

The following subsection (b) makes clear the applicability of the act to the informants and information related to the Times story:

The term “communication intelligence” means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;

The term “unauthorized person” means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.

It is clear that the Times story itself involved an epidemic of lawbreaking among current and former government officials. The sources for the Times story should be entering the zone known as The Big House.

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