Waas: DOJ Sought Guilty Pleas From Times' Sources Over NSA Story Leak

By Jeralyn, Section War on Terror
Posted on Fri Oct 19, 2007 at 12:32:48 PM EST
Tags: NSA surveillance, warrantless wiretapping (all tags)

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Murray Waas continues to break new ground in reporting on Justice Department investigations.

Today he reports that DOJ wanted guilty pleas from two New York Times sources over the December, 2005 article disclosing the NSA warrantless wiretapping program.

The sources refused and Murray says government investigators in the case concede the evidence against them was weak. Now comes the next step: DOJ will subpoena the Times reporters to get to the sources.

Unable to obtain guilty pleas, the federal prosecutor in charge of the leak case has now informally recommended that the Justice Department move forward to compel testimony from the Times. He has argued that it will be difficult to bring criminal charges without such testimony.

As a result, one of the first major decisions likely to be made by Attorney General-designate Michael Mukasey, if confirmed by the Senate, will be whether to subpoena reporters for the Times to testify.

My bet: He'll authorize the subpoenas. That's what top cops do.

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Waas: DOJ Sought Guilty Pleas From Times' Sources Over NSA Story Leak | 21 comments (21 topical)

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I believe you are misreading the story. (none / 0) (#1)
by Deconstructionist on Fri Oct 19, 2007 at 12:40:45 PM EST

The two individuals from whom DOJ wanted pleas are not the reporters but the reporters' sources. The DOJ could not compel self-incriminating trstimony. that's what the 5th is for.

Now, Wass is saying DOJ want to subpoena the reporters to provide testimony incriminating the sources not themselves.

You are correct and I fixed it (none / 0) (#3)
by Jeralyn on Fri Oct 19, 2007 at 12:58:58 PM EST

to now read the sources, not the reporters, were asked to plead guilty.

I thought the Administration wanted to investigate and punish the reporters for publishing the story, not just the leak. I just don't remember, so I'll go back and look.

Thanks for the correction.


They do want to investigate and punish (none / 0) (#8)
by scribe on Fri Oct 19, 2007 at 01:29:03 PM EST

the reporters, but just not today.


: Does Bush still recognize the 5th (none / 0) (#15)
by Molly Bloom on Fri Oct 19, 2007 at 07:45:58 PM EST

when not asserted by his staff?

What's the charge? (none / 0) (#2)
by cboldt on Fri Oct 19, 2007 at 12:55:35 PM EST

In my past views of the law, I concluded that the Rosen's December 2005 article did not constitute a violation of the Espionage Act (18 USC 793 et seq). I'd sure like to read the affidavit that supports compelling this testimony.

This is a bit of a "reverse Libby," where Libby defenders asserted that there should be no compelling of testimony until the investigator shows, and if there is a motion to quash, a Court rules, all the other elements of the crime exist. The identity of the guilty party is to be the last link sought during the investigation.

In the Libby case, the argument was "you have to prove she was covert under the definition of IIPA, before Libby can be found guilty of any material misleading." Some argued that the possibility of a crime was a necessary and routine prerequisite before questioning any witnesses or targets.

In this case, then, the prerequisite would be a finding that the disclosing of a certain snooping policy (i.e., a policy of snooping without a warrant) amounts to the disclosure of "procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients" (see 18 USC 798).

I wonder too, whether or not the government-side leakers have been fired.

The "sources" being investigated ARE (none / 0) (#4)
by Deconstructionist on Fri Oct 19, 2007 at 01:08:58 PM EST

government side. That's whom DOJ under Gonzales was targeting. The backstory suggests that Gonzales was going after the sources (perhaps DOJ subordinates perhaps intelligence community depending on whom you read) in order to alter the perception from out of control AG abusing the Constitution to vigilant Ag pursuing government officials guilty of violating the laws against disclosure of classified national security information. Obviously guilty pleas would be relevant there but since the government official in question refused to plead when asked Gonzales was unable to use any successful prosecutions in an effort to save his neck.


Eh? (none / 0) (#5)
by Gabriel Malor on Fri Oct 19, 2007 at 01:11:25 PM EST

Boy, without you to explain this we'd be outta luck.


It is further muddled (none / 0) (#6)
by Deconstructionist on Fri Oct 19, 2007 at 01:15:23 PM EST

by assertions from some-- including Waas-- that DOJ officials being targeted were "coincidentally" potential witnesses against Gonzales relevant to allegations he approved unconstitutional and/or statute violating surveillance for political reasons.

ah and that explains (1.00 / 0) (#16)
by jimakaPPJ on Sat Oct 20, 2007 at 08:32:03 AM EST

The boruhaha and claims against Gonzales.

A bit of CYA.

Either way, the leakers hurt the country badly, as the NYT did by publishing the story.


Can you actually be that dumb?? (1.00 / 0) (#18)
by jimakaPPJ on Sat Oct 20, 2007 at 05:57:08 PM EST

The issue isn't what the terrorists think, but the road blocks and problems that have followed.


tehe (1.00 / 0) (#21)
by jimakaPPJ on Sun Oct 21, 2007 at 10:35:22 AM EST

This is the best explanation I have found.


: Drats a bad link (1.00 / 0) (#22)
by jimakaPPJ on Sun Oct 21, 2007 at 10:37:32 AM EST

Try again and it now works.

Understood ... (none / 0) (#7)
by cboldt on Fri Oct 19, 2007 at 01:23:15 PM EST

I understood from the start that the guilty pleas were sought from the leakers, not the publishers or reporters. I added "government-side" to my post just to make my statement unambiguous, faced with a shifting topside summary.

Also understood that the backstory is that the prosecution was politically motivated, in order to change the story. My point was that the investigation may also be based on a thin reed. The "evidence is scant" comment may well mean that a different element of the crime, not "who leaked" but "what leaked," is coming up short of a criminal violation. And if that is so, well, the backstory reinforces the meme of abuse of process, for snooping, and for punishing those who exposed a policy that runs afoul of public expectation of privacy, where the public expectation is driven by statute and case law.

Returning to the Libby paradigm, there is always the administrative remedy. Have the accused been fired?


I don't know (none / 0) (#9)
by Deconstructionist on Fri Oct 19, 2007 at 01:33:09 PM EST

the identity of the sources being investigated, so i don't know there job status. As I said, depending on whom you read there is not even agreement on by which agency[ies] these people were or are/were employed.

I'm not sure how that is particularly relevant,though to the ultimate issue raised, which I believe was the propriety of issuing GJ subpoenas to reporters to out their sources or otherwise face possible incarceration for contempt.

My answer is it depends. I can't say i have enough information about this to have more than the general fallback position only as a last resort in the investigation of a serious crime.

The leaker's employment status ... (none / 0) (#10)
by cboldt on Fri Oct 19, 2007 at 02:03:08 PM EST

The leaker's employment status (whether or not they were fired or reassigned to non-sensitive posts) is just another indicator of how clear the violation is, or whether the "who leaked" question is up in the air. I would think, if there was a request for a guilty plea, that the "who leaked" question is answered.

Since it appears that the government knows who the leakers are, or at least it has a strong suspicion, it has the power to act, short of pressing a criminal charge. It would be irresponsible to leave a suspected leaker in a position of trust.

If the DOJ is pressing for guilty pleas without having the predicates for an offense (this is different from not having enough whodunnit evidence), then it's asked people to cop to something that isn't even illegal. That's an abuse. A clear abuse, in my book.

I wonder if Mr. Thomas Tamm is involved in the story that Waas is reporting. See Looking For a Leaker - Newsweek, Aug. 13, 2007

Come to think of it ... (none / 0) (#11)
by cboldt on Fri Oct 19, 2007 at 02:15:23 PM EST

Come to think of it, it takes a certain amount of chutzpah in any event, to request a guilty plea BEFORE obtain enough evidence to associate the perp with the illegal conduct.

The government CAN'T be looking to the press for confirmation of the fact of who leaked, but instead, only to obtain reinforcement as to the identity of the leaker, and maybe, to obtain evidence that what was published was considerably less informative (i.e., not material that amounts to a violation of the Espionage Act) than what was leaked (might have leaked "procedures and methods ..." or something else, such as the contents of an intercepted communications, the identity of suspected terrorists, etc. -- but the government doesn't KNOW that something like this was leaked, unless a recipient testifies thusly).

It's not answered for me (none / 0) (#12)
by Deconstructionist on Fri Oct 19, 2007 at 02:33:33 PM EST

because no one has told me either personally or in a news article whom the people are who were asked to plead. There is plenty of speculation, but as we have seen many times that isn't always reliable.

In any event, the targets being fired, reassigned or even taken to Guuatanamo and flogged is not dispositive of the question of whether the DOJ shopuld seek to compel the reporters to out their sources.

: Why the subpoena? (none / 0) (#14)
by cboldt on Fri Oct 19, 2007 at 03:55:10 PM EST

-- In any event, the targets being fired, reassigned or even taken to Guuatanamo and flogged is not dispositive of the question of whether the DOJ shopuld seek to compel the reporters to out their sources. --
Agreed. But the threat of reporter subpoena means the government is seeking additional or different evidence.
As far as the government's position is concerned, we have a clue that the sources are already outed. The government asked specific individuals to cop guilty pleas. Those individuals are the sources. If the evidence is weak in this area, then the subpoena aims to reinforce or buttress the evidence as to the identity of the government-side leaker(s). I suppose it's necessary to also obtain evidence establishing a path between the leaker and the publisher, even though telephone logs or other evidence may show a circumstantial connection.
OTOH, what if the evidence of wrongdoing is scant, not for want of knowing who the leaker is or establishing a connection to the NYT, but because what was published doesn't constitute a crime? That is, the government wants to fish to find out if the already outed leaker(s) shared something more than what was published, on the hopes that what more was shared (but not published) will constitute a crime.
I'm generally not in favor of press shield. There's already too much privilege flying around, when it comes to investigation. I think Hatfill has a right to learn who in the government was telling stories about him, for example.
For the NSA leak case, I think the Libby investigation is a useful parallel. What should an investigator have to establish, before compelling a reporter to testify? In Libby's case, Fitzgerald was darn sure that Libby had lied to the FBI and the GJ ... and that was enough to overcome the hurdle in DOJ regulations.
If it hasn't been clear from my previous, I think the NSA leak investigation is a witch hunt. I don't see a violation, even if the leaker and connection to NYT is crystal clear. Caveat is that if the leaker gave information that IS covered by the Espionage Act. The existence of the TSP as a policy matter doesn't amount to a violation (IMO).
If there clearly isn't a violation, then the government shouldn't even be wasting time on an investigation, let alone going through the subpoena of reporters.

In the long run, does it matter? (none / 0) (#13)
by txpublicdefender on Fri Oct 19, 2007 at 03:12:21 PM EST

whether the subpoenas are authorized? Of course, it matters to the reporters and anyone else at the NYT who knows who the sources are and who may be subpoenaed. They are looking at going to jail for contempt. But, I have no doubt that the reporters will not divulge their sources. No one will ever go to these reporters or anyone at the Times again, blowing the whistle on lawbreaking going on under the cover of security classification, if they talk. Even if their sources sign "voluntary" releases allowing them to talk, they are not going to talk. They can't. Of course, seeing the reporters sitting in jail, protecting their confidentiality, might move the leakers to step forward and agree to tell all to the grand jury, thus removing the need for the journalists to testify. So, I guess it could matter in the long run.

I'm not so sure, though, that Mukasey would approve the subpoenas. Congress is considering the shield law RIGHT now. A decision to subpoena and jail the reporters who blew the whistle on the warrantless wiretapping right now, as Congress is considering the shield law, would make it much more likely that Congress would approve the shield law, I think. Mukasey has said that he opposes a shield law and thinks the issue can be handled best by a strong, consistently enforced policy in DOJ. He can demonstrate to Congress that he is right about that by not approving these subpoenas.

leakers (none / 0) (#20)
by diogenes on Sat Oct 20, 2007 at 08:57:10 PM EST

Hey-if the leaks were legal and for the good of the country then maybe the leakers should come forward, identify themselves, and explain what they did and why.

: Gee, you think so? (1.00 / 0) (#23)
by jimakaPPJ on Sun Oct 21, 2007 at 10:38:27 AM EST

;-)