Still more on the NSA and Warrantless Searches

Via Powerline. There is a copy of the latest Department of Justice letter to the heads of the House and Senate intelligence committees posted at National Review.

I am not a lawyer, but I do watch Law and Order on TV, and the review of the case law outlined in the letter looks pretty conclusive to me. Of course we all know that some judge somewhere will say that all the precedent was wrong and issue an injunction.

(For those of you who don't know Stare Decisis only requires deference to precedent if you agree with it. It's in the Federal Judge Handbook right after the part that states that the purpose of Judges is it to interject themselves in places they shouldn't be. Seriously I am one of those that believes the law and respect for the law are what keep a civilization functioning, and the way courts are used today decreases that respect. A large amount of the blame belongs to judges because instead of maintaining their position as impartial arbiters they become politically involved. It sucks. I apply that criticism across the spectrum.)

While I hate the idea of having to spy on an American, it appears that this program was legal. It is unfortunate that the New York Times decided once again that they just had to try and embarrass the U.S. and the current administration. This is dirty laundry that never should have been aired. On this point it is interesting that the DoJ found it necessary to remind the committee members that unauthorized disclosure of classified information is against the law.

As an initial matter, I emphasize a few points. The President stated that these activities are " crucial to our national security." The President further explained that "the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country." These critical national security activities remain classified. All United States laws and policies governing the protection and nondisclosure of national security information. Including the information relating to the activities described by the President, remain in full force and effect. The unauthorized disclosure of classified information violates federal criminal law. The Government may provide further classified briefings to the Congress on these activities in an appropriate manner. Any such briefings will be conducted in a manner that will not endanger national security.

Maybe this boiler plate, but to me it reads like a "Keep your frickin mouths shut" warning. It also makes me wonder if the rumors that the DoJ is going to investigate the leak are true. I would like nothing better than to see the entire New York Times assemblage involved with this story packed off to a Federal "F**k em up the ass" maximum security prison along with all their informants. Scott at Powerline has also picked up on this and publishes the appropriate law:

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—

***

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

***

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.

I think we can legitimately prosecute the Times based on the bolded portion above. Scott seems to be restricting himself to the sources. It is probable most people would say that the Times is exempted under the 1st Amendment; I disagree, show me where there is a constitutional right to be free from responsibility and the consequences arising from your actions.

Anyway my $.02

CIA Watch
Current Affairs
Politics
New York Times