Orin Kerr, at the Volokh Conspiracy, responds to the left’s most dishonest blogger‘s rantings over criticisms of Judge Anna Diggs Taylor’s NSA opinion by the Washington Post (and others), observing:

the Administration is giving the program only a very partial defense in its public documents, so there is a lot more that we don’t know. (For example, I teach and write in the area of the Fourth Amendment, and my view is that I don’t know enough of the facts to know if the program violates the Fourth Amendment.

Professor Kerr has identified the most interesting feature of the NSA flap. The December 16, 2005 New York Times leaked NSA story accused the Bush administration of “monitoring,” a term subsequently rhetorically upgraded to “spying,” and ultimately to “eavesdropping,” on international phone calls and email messages “within the United States” without warrants.

The Bush Administration’s accusers knew that they were taking a very serious step by divulging the existence of one or more top secret National Security programs, and they not surprisingly chose merely to apply partisan and inflammatory characterizations without ever specifically describing what it was that they were pointing to with feigned outrage.

Since all this is secret, no one outside certain intelligence agencies and the upper reaches of the US Government really knows who is doing what, when, or to whom. It is really as if all it required was for Messrs. Risen and Lichtblau to write a story saying “the Bush Administration is secretly violating the law,” some unidentified persons said “by doing bad things,” and the left faithfully falls into zombified lockstep, and begins shouting cries of pain and outrage in chorus.

A key problem is no one has ever been identified anyone who has ever experienced a known wrong, or a perceived consequence of any kind, from whatever it is that NSA might, or might not, be doing.

Can the Constitution really be violated, or the law be broken, by persons unknown secretly peforming unknown acts devoid of discernible effect?

The left obviously thinks that George W. Bush is just intrinsically unconstitutional, and that he breaks the law just by being in office, and their grasp of so much of the MSM allows them to create an echo-chamber alternative reality in which the liberal articles of faith -which everybody knows- seem very real, however tenuous their relationship to mere diurnal reality.

Oh, sure.

The ACLU, a little jurisdiction shopping, and a Jimmy Carter-appointed ultra-liberal ideologue judge with a record of partisan political judicial conduct, a cooperative MSM, and voila! you have headlines shouting U.S. Judge Finds Wiretapping Plan Violates the Law.

In reality, Anna Diggs Taylor’s ruling will simply go on to the Circuit Court of Appeals and on to the Supreme Court, where the arguments will be evaluated by more serious and responsible judges.

———————
MaggieCarta on Free Republic provides the song of the hour.

My Law School Told Me You Better Shop Around.
(Tune: My Momma Told Me You Better Shop Around)

Just because you’ve briefed a big case now
There’s still some things that you must understand now
Before you step into court with demands now
Make your choice nonrandom as you can now
My law school taught me:
You better shop around

There’s some knowledge I want to bestow now
Know which way that the wind’s gonna blow now
Judgments come and judgments are gonna go now
The more you look, you’ll find one apropos, now
My law school taught me:
You better shop around

You must use your all best jargon, son
Don’t stay stuck with the very first one
Hard working judges come a dime a dozen
Try to find you one with a verdict you’re lovin’
Presume you got no standing to sue, now
Find one who’s in bed with ACLU now
My law school taught me:
You better shop around

The New York Times reports that the process of bringing pouting spooks to justice for disclosing vital National Security programs to journalists in an effort to gain partisan political advantage is finally underway.

A federal grand jury has begun investigating the leak of classified information about intelligence programs to the press and has subpoenaed a former National Security Agency employee who claims to have witnessed illegal activity while working at the agency.

The former employee, Russell D. Tice, 44, of Linthicum, Md., said two F.B.I. agents approached on Wednesday and handed him the subpoena, which requires him to testify next Wednesday before a grand jury in Alexandria, Va.

The subpoena, which Mr. Tice made public on Friday, says the investigation covers “possible violation of federal criminal laws involving the unauthorized disclosure of classified information.” It specifically mentions the Espionage Act.

Tice was still spouting combative complaints about “persecution of whistle-blowers.” We’ll see if Tice keeps up that sort of talk after he’s read the charges on his indictment, and is aware of just what kind of sentences he is facing.

Background on Tice here.

(Subscription-barrier) Roll Call reports:

The FBI is close to finishing a series of interviews with the top Congressional leaders and other key Members in both chambers as part of its wide-ranging criminal probe of alleged leaks of the previously classified domestic surveillance program.

Raw Story adds

(FBI) agents and Justice Department officials are investigating whether any of the 15 current and former Members briefed earlier this decade about the National Security Agency spying program were a source for a New York Times report about the issue last December.

There are also indications from at least one Senator, Ted Stevens (R-Alaska), that the FBI is asking Members about comments of theirs that appeared in other publications regarding the NSA program.

The interviews, which came about after extensive negotiations this spring between the Justice Department and the counsels for the House and Senate, are taking place in Members’ Congressional offices, usually with two FBI agents and one Justice Department lawyer in attendance. Members are also permitted to have a House or Senate counsel on hand if they wished.

Michael Barone, in the WSJ, reflects on the consequences of the habitual misuse of power of the press to delegitimize elected administrations.

It is hard in retrospect to understand why the left put so much psychic energy into the notion that Mr. Rove would be indicted. He certainly was an important target. No one in American history has been as powerful an aide to a president, both on politics and on public policy, as Karl Rove. Only Robert Kennedy in his brother’s administration and Hamilton Jordan in Jimmy Carter’s come close, and neither was as involved in electoral politics as Mr. Rove has been.

Still, it was clear early on that the likelihood that Mr. Rove violated the Intelligence Identities Protection Act was near zero. Under the law, the agent whose name was disclosed would have had to have served overseas within the preceding five years (Valerie Plame, according to her husband’s book, had been stationed in the U.S. since 1997), and Mr. Rove would have had to know that she was undercover (not very likely). The left enjoyed raising an issue on which, for once, it could charge that a Republican administration had undermined national security. But that rang hollow when the left gleefully seized on the New York Times’ disclosure of NSA surveillance of phone calls from suspected al Qaeda operatives abroad to persons in the U.S.

In all this a key role was played by the press. Cries went up early for the appointment of a special prosecutor: Patrick Fitzgerald would be another Archibald Cox or Leon Jaworski. Eager to bring down another Republican administration, the editorialists of the New York Times evidently failed to realize that the case could not be pursued without asking reporters to reveal the names of sources who had been promised confidentiality. America’s newsrooms are populated largely by liberals who regard the Vietnam and Watergate stories as the great achievements of their profession. The peak of their ambition is to achieve the fame and wealth of great reporters like David Halberstam and Bob Woodward. But this time it was not Republican administration officials who went to prison. It was Judith Miller, then of the New York Times itself.

Interestingly, Bob Woodward himself contradicted Mr. Fitzgerald’s statement, made the day that he announced the one indictment he has obtained, of former vice presidential chief of staff Scooter Libby, that Mr. Libby was the first to disclose Ms. Plame’s name to a reporter. The press reaction was to turn on Mr. Woodward, who has been covering this administration as a new story rather than as a reprise of Vietnam and Watergate.

Historians may regard it as a curious thing that the left and the press have been so determined to fit current events into templates based on events that occurred 30 to 40 years ago. The people who effectively framed the issues raised by Vietnam and Watergate did something like the opposite; they insisted that Vietnam was not a reprise of World War II or Korea and that Watergate was something different from the operations J. Edgar Hoover conducted for Franklin Roosevelt or John Kennedy. Journalists in the 1940s, ’50s and early ’60s tended to believe they had a duty to buttress Americans’ faith in their leaders and their government. Journalists since Vietnam and Watergate have tended to believe that they have a duty to undermine such faith, especially when the wrong party is in office.

That belief has its perils for journalism, as the Fitzgerald investigation has shown. The peril that the press may find itself in the hot seat, but even more the peril that it will get the story wrong. The visible slavering over the prospect of a Rove indictment is just another item in the list of reasons why the credibility of the “mainstream media” has been plunging. There’s also a peril for the political left. Vietnam and Watergate were arguably triumphs for honest reporting. But they were also defeats for America–and for millions of freedom-loving people in the world. They ushered in an era when the political opposition and much of the press have sought not just to defeat administrations but to delegitimize them. The pursuit of Karl Rove by the left and the press has been just the latest episode in the attempted criminalization of political differences. Is there any hope that it might turn out to be the last?

The Anti-Bush Intel Community captured today’s news lead with its latest leak in USA Today. Despite all the traction the story is getting in the Blogosphere, we are clearly really just dealing with a repackaging and reissue (“old wine in new bottes”) of the same old NSA communications data-mining story originally leaked to Eric Lichtblau and James Risen in the New York Times last December.

Today’s leak goes:

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren’t suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews…

“It’s the largest database ever assembled in the world,” said one person, who, like the others who agreed to talk about the NSA’s activities, declined to be identified by name or affiliation. The agency’s goal is “to create a database of every call ever made” within the nation’s borders, this person added.

Leslie Cauley, author of the USA Today article, adds (curiously overlooking the fact that she and her employers are also breaking the law, and her name is right there at the top of the article):

The sources would talk only under a guarantee of anonymity because the NSA program is secret.

———————————————-
So, as you may well imagine, the left is, this morning, again indulging in another of its little psychodramas involving George W. Bush poring over each leftist blogger’s phone bill to see how any times he/she spoke to Aunt Tillie last month.

The Mahablog, which styles itself (tin trumpet call) as “Home blog of the American Resistance,” grabs today’s headlined leak, and runs with it, demanding indignantly:Let’s See the “Libertarian” Righties Defend This One.

Why, sure, always glad to oblige a moonbat.

The United States is at war. Foreign enemies are actively engaged in efforts to carry out attacks on civilian population centers in the United States. Enemy agents are undoubtedly resident in the United States and operating off US soil. Can the president of the United States, in such circumstances, authorize the intelligence services of the United States to intercept and open mail addressed to, or sent by, US residents, including citizens? Of course, he can. As Justice Robert Jackson remarked, “The US Constitution is not a suicide pact.”

The caterwauling of the left over the NSA’s communications data-mining activity is nothing more than narcissistic fantasy. Are there any adults on the left? You people all read like adolescent teenagers. The world revolves around little you.

In reality, no one is actually listening to your phone calls, or reading your phone bills. Some very very large computers are crunching through databases which include your phone records, my phone records, and another few hundred million phone records mechanically and indifferently, searching for various kinds of incriminating clues. If you haven’t been placing a lot of calls to suspicious numbers in Waziristan, if your favorite phone buddy is not on a list of terrorists, there is absolutely nothing to be concerned about.

Speaking frankly, guys, if they haven’t arrested Dana Priest, Lichtblau and Risen, Leslie Cauley, and most of their informants yet, there isn’t a lot of chance that anybody is coming looking for you.

On April 26th, the Wall Street Journal observed in an editorial titled Our Rotten IntelligenCIA:

The press is… inventing a preposterous double standard that is supposed to help us all distinguish between bad leaks (the Plame name) and virtuous leaks (whatever Ms. McCarthy might have done). Washington Post executive editor Leonard Downie has put himself on record as saying Ms. McCarthy should not “come to harm” for helping citizens hold their government accountable. Of the Plame affair, by contrast, the Post’s editorial page said her exposure may have been an “egregious abuse of the public trust.”

It would appear that the only relevant difference here is whose political ox is being gored, and whether a liberal or conservative journalist was the beneficiary of the leak. That the press sought to hound Robert Novak out of polite society for the Plame disclosure and then rewards Ms. Priest and Mr. Risen with Pulitzers proves the worst that any critic has ever said about media bias.

The deepest damage from these leak frenzies may yet be to the press itself, both in credibility and its ability to do its job. It was the press that unleashed anti-leak search missions aimed at the White House that have seen Judith Miller jailed and may find Ms. Priest and Mr. Risen facing subpoenas. And it was the press that promoted the probe under the rarely used Espionage Act of “neocon” Defense Department employee Lawrence Franklin, only to find that the same law may now be used against its own “whistleblower” sources. Just recently has the press begun to notice that the use of the same Espionage Act to prosecute two pro-Israel lobbyists for repeating classified information isn’t much different from prosecuting someone for what the press does every day — except for a far larger audience.

We’ve been clear all along that we don’t like leak prosecutions, especially when they involve harassing reporters who are just trying to do their job. But then that’s part of the reason we didn’t join Joe Wilson and the New York Times in demanding Karl Rove’s head over the Plame disclosure. As for some of our media colleagues, when they stop being honest chroniclers of events and start getting into bed with bureaucrats looking to take down elected political leaders, they shouldn’t be surprised if those leaders treat them like the partisans they have become.

—————————————
Stung by the Journal’s criticism, New York Times Executive Editor Bill Keller responded in a Letter to the Editor today, denying any partisan bias, by noting that the Times even covers major scandals involving democrats “(Ask Bill Clinton. Ask Congressman Mollohan)” (!):

In the case of the eavesdropping story, President Bush and other figures in his administration were given abundant opportunities to explain why they felt our information should not be published. We considered the evidence presented to us, agonized over it, delayed publication because of it. In the end, their case did not stand up to the evidence our reporters amassed, and we judged that the responsible course was to publish what we knew and let readers assess it themselves. You are welcome to question that judgment, but you have presented no basis for challenging it, let alone for attributing it to bad faith or animus toward the president.

In the final paragraph of your broadside, you include the following disclaimer: “We’ve been clear all along that we don’t like leak prosecutions, especially when they involve harassing reporters who are just trying to do their job.” That’s nice to hear, and squares with what the framers of the Constitution had in mind when they set out to protect a vibrant, inquisitive press. It’s just hard to square with the rest of your editorial.

—————————————
If the Times editorial policy is so non-partisan, responsible, and generally sans reproche as all that, I’d be curious to know why Mr. Keller found it necessary to stonewall, and refuse to answer, the timid and polite inquiries by his own pet lapdog “ombudsman” Byrom Calame, who noted that remarkable silence at the beginning of this year.

Who does the Times think it’s kidding?

From Walter Duranty’s award-winning concealment of the horrors of Stalinist collectivization, to Herbert Matthews’ press agentry for Fidel Castro, to the studiously overlooked coverage of the Khmer Rouge massacres in Cambodia, the Times has compiled, for nearly a century, a record of leftwing partisan mendacity that rivals Pravda’s.

Jed Babbin wonders whether, seen in the light of the anti-Bush Intelligence Operations, today’s CIA has not come to resemble the Praetorians of Ancient Rome:

Rome’s Praetorian Guards began as a small elite imperial guard that grew into a force unto themselves. Independent of the army and the Senate they were the emperor’s own, and utterly loyal to him. Until they were not. Over three centuries, as their wealth and power increased, the scope of their loyalty shrank so that they were not even loyal among themselves. Their end came when they scrupled at nothing. They murdered emperors and anointed imperial successors and were finally disbanded for disloyalty.

Hot Air has assembled a very handy primer of background information.

If she’s innocent, it seems a curious coincidence that she’s got such a high-powered democrat party defense attorney defending her.

H/T to Michelle Malkin.

Washington Post reports that Mrs. McCarthy’s not guilty, and you can’t prosecute her successfully either, if she is.

A lawyer representing fired CIA officer Mary O. McCarthy said yesterday that his client did not leak any classified information and did not disclose to Washington Post reporter Dana Priest the existence of secret CIA-run prisons in Eastern Europe for suspected terrorists.

The statement by Ty Cobb, a lawyer in the Washington office of Hogan & Hartson who said he was speaking for McCarthy, came on the same day that a senior intelligence official said the agency is not asserting that McCarthy was a key source of Priest’s award-winning articles last year disclosing the agency’s secret prisons.

McCarthy was fired because the CIA concluded that she had undisclosed contacts with journalists, including Priest, in violation of a security agreement. That does not mean she revealed the existence of the prisons to Priest, Cobb said.

Cobb said that McCarthy, who worked in the CIA inspector general’s office, “did not have access to the information she is accused of leaking,” namely the classified information about any secret detention centers in Europe. Having unreported media contacts is not unheard of at the CIA but is a violation of the agency’s rules…

..Though McCarthy acknowledged having contact with reporters, a senior intelligence official confirmed yesterday that she is not believed to have played a central role in The Post’s reporting on the secret prisons. The official spoke on the condition of anonymity, citing personnel matters…

..Where Cobb’s account and the CIA’s account differed yesterday is on whether McCarthy discussed any classified information with journalists. Intelligence sources said that the inspector general’s office was generally aware of a secret prison program but that McCarthy did not have access to specifics, such as prison locations…

..Thomas S. Blanton, director of the National Security Archive, a nongovernmental research institute at George Washington University, said he does not think the Post article includes the kind of operational details that a prosecutor would need to build a case.

“It’s the fact of the thing that they’re trying to keep secret, not to protect sources and methods, but to hide something controversial,” he said. “That seems like a hard prosecution to me.”

Kate Martin, executive director of the Center for National Security Studies, said that “even if the espionage statutes were read to apply to leaks of information, we would say the First Amendment prohibits criminalizing leaks of information which reveal wrongful or illegal activities by the government.”

And the New York Times unlimbers its Ouija Board and channels a warning from a Pouting Spook.

A criminal trial would be devastating for Langley,” said one former C.I.A. officer, referring to the agency’s Virginia headquarters. He spoke about a possible prosecution on condition of anonymity because he was not authorized to speak publicly about the case.

Well, they’ve double-dared Porter Goss and the Administration to try to do anything about the Press leaks and the Anti-Bush Intel Operation. It’s going to be interesting to see what happens next.

Robin has compiled a link collection, which may be helpful for those trying to connect the dots.

MacRanger, I think, calls it right. The exposure of Mary O. McCarthy is just the beginning. The MSM is wasting all the ink it’s spilling this morning trying to establish a whistleblower defense. Ms. McCarthy is probably not going to jail. She has most likely already made a deal. It’s her associates in the Pouting Spooks Conspiracy who will be going up the river, with her testifyng against them.

..Mary’s discovery definitely came as a part of a tip, most likely on the promise of immunity, which I find most intriguing and amusing. Imagine a mole on the inside who is now spilling the beans on those leakers – such as Mary – who have been leaking stories over the last three years. Its going to be fun to watch the rats devour one another to save their own hides.

As we all know – or should know – since before and especially during the 2004 election cycle leaks were coming out at a fast and furious pace. It was if the State Department and the CIA had suddenly become a 24 hour news service, leaking information specifically designed to undermine the Bush administration, the war effort, and ulitmately was intended to defeat the President’s reelection effort.

We now know that McCarthy was a hire of Sandy Burglar, a Clintonista, and a heavy contributor to failed Presidential candidate John Kerry. In addition she worked out of the IG’s office of the CIA who would have directly worked on the referral to the JD of the Valerie Plame Game. As the Agency is a small sorority, I immediately wonder just how close she was and is to Valerie Plame.

As I noted from the beginning of the Plame Game, the story was never about Joe Wilson’s boondoggle to Niger per-se, but about an elaborate coup by a group of rogue ops to undermine the President of the United States in war time. This is much more than just the leak of CIA prisons – a story which in itself is false, but about the oldest type of war waged and which the CIA is expert at. That being toppling Governments by misinformation propaganda designed to sow discord among the people. Thus the Plame Game was and continues to be a ruse – a paper tiger- a fact that Fitzgerald and his bungling prosecution continually reminds us of.