Wednesday, January 11, 2006

Whistle-blower or lawbreaker?

Commentary by David Reinhard


David Reinhard

Self-respecting lefties couldn't come right out and say the Justice Department shouldn't open a probe into the disclosure of classified information on the National Security Agency's surveillance program. That would look hypocritical and partisan after spending years baying for the prosecution of anyone who may, or may not, have intentionally leaked the identity of a CIA employee who may, or may not, have been a "covered" agent under the Intelligence Identities Protection Act. That would look absurd, because there are actual laws against knowingly disclosing information about the nation's classified "communications intelligence activities."

So last fall's tough-on-leakers crowd had to come up with something last week, when federal officials announced they were looking into -- what did we call it in the Valerie Plame case? -- the "outing" of NSA's top-secret program to The New York Times.

President Bush should spend more time justifying the NSA program than investigating who spilled the beans. OK, maybe we have to have a leak investigation -- whateverrrrrr -- but let's get our priorities straight. We all know the NSA program is illegal and/or unconstitutional and The New York Times' sources are wise, courageous and patriotic "whistle-blowers." And the NSA program is indefensible.

There are a few problems with the left's instant reaction to the Justice Department's leak investigation. The first is that the Bush administration has spent far more effort defending the NSA program than fretting about leakers.

In the days after the Times story, Bush went out on three occasions to defend the NSA program. After devoting his Saturday radio address to the issue, the president held a news conference Monday and discussed the program at length. Yes, he called the disclosure "shameful" and noted that the Justice Department probably would launch an investigation, but that was it on the leak.

That same day, Attorney General Alberto Gonzales and Gen. Michael Hayden held their own White House briefing on the program. A few days later, the Justice Department set out the legal and constitutional case in a letter to Congress. It was thick with court cases and legal precedents.

"[C]onsistent with U.S. law and the Constitution, I authorized the interception of international communications of people with known links to al-Qaida and related terrorist organizations . . .," Bush said at his press conference. "I've reauthorized this program more than 30 times since the September 11th attacks, and I intend to do so for so long as our nation . . . faces the continuing threat of an enemy that wants to kill American citizens."

This is not the response of an administration running from the NSA issue. On the contrary, the White House has offered a stout defense of the program from the start. But apparently the republic's Bush bashers missed all this -- and the experts who back up the administration on the program's legality.

"The claims are actually fairly modest, and not unconventional," Cass Sunstein, a University of Chicago law professor and liberal, said of Bush's claims on Hugh Hewitt's radio show.

Of course, never acknowledging this allows critics to claim Bush acted outside the law and Constitution. And if they convince themselves of this, they can cast the leakers as patriots and whistle-blowers. Yet, if the NSA program is not patently illegal, then they're rank lawbreakers who've exposed a critical classified program designed to protect our national security to further what's basically a policy dispute.

Bush critics are entitled to their opinions about the program and leak investigation. But they're not entitled to their own facts. Not only have the president and his people made the legal and practical case for the NSA's limited surveillance of international communications between al-Qaida types in wartime, but the effort also seems to be paying off. A Dec. 28 Rasmussen Report poll found that 64 percent of Americans believe NSA should intercept telephone conversations between terrorism suspects overseas and people here (just 23 percent disagree).

Now, let's hope the Justice Department is as successful at prosecuting these lawbreakers -- not whistle-blowers -- who took it on themselves to violate the laws and "out" one of our most highly classified programs in the middle of a war.

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