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.

Ruling against a defense motion to dismiss in the case of US v. Steven J. Rosen, Keith Weissman, District Court Judge Thomas Selby Ellis, III held that, under the federal Espionage Act private citizens can be prosecuted for unauthorized receipt and disclosure of classified information.

Although the question whether the government’s interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government [i.e. not holding security clearances] is a more difficult question, and although the authority addressing this issue is sparse, both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.

The government must… prove that the person alleged to have violated these provisions knew the [restricted] nature of the information, knew that the person with whom they were communicating was not entitled to the information, and knew that such communication was illegal, but proceeded nonetheless.

Finally, with respect only to intangible information [as opposed to documents], the government must prove that the defendant had a reason to believe that the disclosure of the information could harm the United States or aid a foreign nation…

So construed, the statute is narrowly and sensibly tailored to serve the government’s legitimate interest in protecting the national security, and its effect on First Amendment freedoms is neither real nor substantial as judged in relation to this legitimate sweep.

It is to be expected that this ruling will be tested at the Appeals Court and Supreme Court levels, but Judge Ellis’ reasoning is sound, and there is distinct cause for a nervous evening on the part of several reporters working for the Washington Post and the Los Angeles and New York Times newspapers.

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Steven Aftergood reports at Secrecy News.

AP reports:

Federal prosecutors investigating a leak about a terrorism funding probe can see the phone records of two New York Times reporters, a federal appeals court ruled Tuesday.

A panel of the 2nd U.S. Circuit Court of Appeals overturned on a 2-1 vote a lower court’s ruling that the records were off limits unless prosecutors could show they had exhausted all other means of finding out who spoke to the newspaper…

The case involved stories written in 2001 by Times reporters Judith Miller and Philip Shenon that revealed the government’s plans to freeze the assets of two Islamic charities, the Holy Land Foundation and the Global Relief Foundation.

Prosecutors claimed the reporters’ phone calls to the charities seeking comment had tipped the organizations off about the government investigation.

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.

Former Ambassador Wilson and wife never got what they wanted for Fitzmas, so what can they do but sue?

I never knew that there was a Constitutional right to immunity from rebuttal, but Joe Wilson says his was violated.

At American Thinker, essential commentator on the Pouting Spooks Anti-Bush Operation, Clarice Feldman, offers her latest observations on Robert Novak’s account of his role in the Plamegame scandal, published yesterday in Human Events.

Novak writes:

For nearly the entire time of his investigation, Fitzgerald knew—independent of me—the identity of the sources I used in my column of July 14, 2003. A federal investigation was triggered when I reported that former Ambassador Joseph Wilson’s wife, Valerie Plame Wilson, was employed by the CIA and helped initiate his 2002 mission to Niger. That Fitzgerald did not indict any of these sources may indicate his conclusion that none of them violated the Intelligence Identities Protection Act.

Causing Feldman to ask:

If Fitzgerald knew by January 12, 2004 who the leaker was and that it wasn’t Libby or Rove, why did he later call them to testify before the grand jury? Was it simply to determine whether he could trap them into making perjurious statements, something the law does not permit?

She believes, along with many others, that Novak’s unnamed source “is almost certainly Richard Armitage, Colin Powell’s Deputy Secretary of State. The same man who almost certainly was Bob Woodward’s source as well.”

Feldman makes an important connection:

If Fitzgerald has known since January 12, 2004 of the name of the leaker, why is he still protecting him, and why is he treating the leaker’s (that is, Armitage’s) source, who is almost certainly Marc Grossman, former Under Secretary of State for political affairs, the man reportedly the source for the first accusations against Libby and Rove, as an impartial witness to the events? In the discovery process it turned out that Grossman was a longtime friend of Wilson’s, dating to their college days at the University of California—Santa Barbara. Is it likely that the famous prosecutor missed this fact?

and then asks another question:

Finally (and I hope to report more fully on this soon) what role, exactly, did former Deputy Attorney General Comey, who set up this extra-statutory (and I think unconstitutional) appointment of his friend Patrick Fitzgerald, play in steering Fitzgerald toward the mistaken notion that Libby was lying, not Wilson or the CIA?

Our own Comey Connection report here.

New York Times Leakmeister Eric Lichtblau, writing with Scott Shane, on Saturday, exposed a secret and undisclosed May 18th letter from House Intelligence Committee Chairman Peter Hoekstra to President Bush. The Times treats the story as the revelation of another Administration secret Counterterrorism program.

In a sharply worded letter to President Bush in May, an important Congressional ally charged that the administration might have violated the law by failing to inform Congress of some secret intelligence programs and risked losing Republican support on national security matters.

The letter from Representative Peter Hoekstra of Michigan, the Republican chairman of the House Intelligence Committee, did not specify the intelligence activities that he believed had been hidden from Congress.

I’m not sure that the Times’ interpretation of the story is correct.

Tom Maguire, the right Blogosphere’s specialist in these matters, reviews the guesses as to the object of Chairman Hoekstra’s wrath from various MSM and blogosphere sources, which suggest:

1) the SWIFT program.

2) the missing Iraqi WMDs.

3) some “more explosive secret” previously alluded to by NSA-leaker, and renowned stalker, Russell Tice.

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I have a wildly speculative alternative theory. It just might be that the Times has completely missed the point.

Mr. Hoekstra was also interviewed on Fox News (Allahpundit has the video). In that interview, Chairman Hoekstra referred to his committee having a passion about three things:

1. Getting the right people in the right leadership positions in the Intelligence Community.

2. Implementing the establishment of the office of Director of National Intelligence.

3. Complete and aggressive oversight of all the programs pursued by the Intelligence Community.

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Number one is clearly referring to the appointment of Stephen R. Kappes (Previously mentioned here)

In the Times-revealed May 18th letter to President Bush, Hoekstra objects vehemently, and at length, to Kappes’s appointment, writing:

the choice for Deputy Director, Steve Kappes, is more troubling on both a substantive and personal level…

Regrettably, the appointment of Mr. Kappes sends a clear signal that the days of collaborative reform between the White House and this committee may be over… Individuals both within and outside the Administration have let me and others know of their strong opposition to this choice for Deputy Director. Yet, in my conversations with General Haydon it is clear that the decision on Mr. Kappes is final…

I understand that Mr. Kappes is a capable, well-qualified and well-liked former Directorate of Operations (DO) case officer. I am heartened by the professional qualities he would bring to the job, but am concerned by what could be the political problems that he could bring back to the Agency. I am convinced that politicization was underway well before Porter Goss became the Director. In fact, I have been long concerned that a strong and well-positioned group within the Agency intentionally undermined the Administration and its policies. This argument is supported by the Ambassador Wilson/Valerie Plame events, as well as by the string of unauthorised disclosures from an organization that prides itself with being able to keep secrets. I have come to the belief that, despite his service to the DO, Mr. Kappes may have been part of this group. I must take note when my Democratic colleagues – those who vehemently denounced and publicly attacked the strong choice of Porter Goss as Director – now publicly support Mr. Kappes’s return.

Further, the details surrounding Mr. Kappes’s departure from the CIA give me great pause. Mr. Kappes was not fired, but, as I understand it, summarily resigned his position shortly after Director Goss responded to his demonstrated contempt for Congress and the Intelligence Committees’ oversight responsibilities. The fact is, Mr. Kappes and his deputy, Mr. Sulick, were developing a communications offensive to bypass the Intelligence Committees and the CIA’s own Office of Congressional Affairs. One can only speculate on the motives but it clearly indicates a willingness to promote a personal agenda.

The subject of the House Intelligence Committee’s wrath seems not to be the Administration, but rather the Administration’s adversaries.

I’m going to climb way out on a limb with a speculation of my own. I think, perhaps, the “secret program” Chairman Hoekstra is indignant about, which he says is in violation of the law, may not be an Administration program at all. He may actually have been referring to the briefing of the Congressional oversight committees about a very secret Intelligence Community program, viz., the Anti-Bush Administration Intel Operation, described by a reluctant Administration at Congressional request.

Suppose Pete Hoekstra is fed up with the Administration’s failure to expose and prosecute the cabal of Pouting and Leaking Spooks behind the Plamegame, the NSA flap, the renditions story, and all the rest, and is now trying to hold the President’s feet to the fire in order to force him to act. Investigation, exposure, and prosecution of the leakers and conspirators could be initiated by Congress itself, instead of the Justice Department.

I could be completely wrong, of course.

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The (Australian) Advertiser seems to read this story the same way I do.

The American Spectator has learned from Treasury and Justice Department officials more scarifying details about the US Government’s attempts to persuade both the New York Times and the Los Angeles Times to refrain from publishing the SWIFT story.

According to Treasury and Justice Department officials familiar with the briefings their senior leadership undertook with editors and reporters from the New York Times and Los Angeles Times, the media outlets were told that their reports on the SWIFT financial tracking system presented risks for three ongoing terrorism financing investigations. Despite this information, both papers chose to move forward with their stories.

“We didn’t give them specifics, just general information about regions where the investigations were ongoing, terrorist organizations that we believed were being assisted. These were off the record meetings set up to dissuade them from reporting on SWIFT, and we thought the pressing nature of the investigations might sway them, but they didn’t,” says a Treasury official.

In fact, according to a Justice Department official, one of the reporters involved with the story was caught attempting to gain more details about one of the investigations through different sources. “We believe it was to include it in their story,” says the official….
“We thought that once the reporters and editors understood that one, these were not warrantless searches, and two, that this was a successful program that had netted real bad guys, and three, that it was a program that was helping us with current, ongoing cases, they would agree to hold off or just not do a story,” says the U.S. Treasury official. “But it became clear that nothing we said was going sway them. Whomever they were talking to, whoever was leaking the stuff, had them sold on this story.”

To that end, the Justice Department has quietly and unofficially begun looking into possible sources for the leak. “We don’t think it’s someone currently employed by the government or involved in law enforcement or the intelligence community,” says another Justice source. “That stuff about ‘current and former’ sources just doesn’t wash. No one currently working on terrorism investigations that use SWIFT data would want to leak this or see it leaked by others. We think we’re looking at fairly high-ranking, former officials who want to make life difficult for us and what we do for whatever reasons.”

The fact that this last especially outrageous violation of national security appears likely to motivate the Justice Department to get serious about catching the Pouting Spooks responsible, and bringing them to justice, sheds a single ray on sunshine on the appalling situation. The truth of the matter is, all they need to do is get one cowardly squealer to talk, and they can probably bag the whole lot. In that company, too, cowardly squealers are probably a dime a dozen.

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?

No Fitzmas, no handcuffs, no frogmarch, no Karl Rove’s head on a platter for them.

Special Prosecutor Fitzgerald sent a letter to Karl Rove’s attorney, reports the New York Times, throwing in the towel, and stating officially that he does not intend to pursue any criminal charges against Mr. Rove.

Some of us don’t find that very surprising, considering the astonishing levels of conceptual acrobatics and prosecutorial overreach it required for Fitzgerald to bring an indictment against I. Lewis Libby. The charges against Scooter Libby will eventually be laughed out of court, and Fitzgerald will have to slink off to Salem, Massachusetts to see if he can find further employment in the next witch hunt.

PJM has the best link collection.

I thought the best leftist comedy material was here, including Joe Wilson attorney’s statement:

While it appears that Mr. Rove will not be called to answer in criminal court for his participation in the wrongful disclosure of Valerie Wilson’s classified employment status at the CIA in retaliation against Joe Wilson for questioning the rationale for war in Iraq, that obviously does not end the matter. The day still may come when Mr. Rove and others are called to account in a court of law for their attacks on the Wilsons.

Clarice Feldman, again writing at American Thinker, identifies a contradiction in published information.

In the infamous Vanity Fair article on Joseph Wilson and Valerie Plame (the one with a photo spread of them in their Jaguar convertible), an article obviously sourced by them, Alan Foley is described as Plame’s boss:

Cheney and his chief of staff, Lewis Libby, visited the C.I.A. several times at Langley and told the staff to make more of an effort to find evidence of weapons of mass destruction in Iraq and to uncover Iraqi attempts to acquire nuclear capabilities. One of the people who objected most fervently to what he saw as “intimidation,” according to one former C.I.A. case officer, was Alan Foley, then the head of the Weapons Intelligence, Non-Proliferation and Arms Control Center. He was Valerie Plame’s boss. (Foley could not be reached for comment.)

Ray McGovern, a prominent member of the misnamed anti-administration group,Veteran Intelligence Professionals for Sanity(VIPS), who was active in the effort to get intelligence officers to leak secret information against the war, claimed to know Foley and suggested early on that upon his resignation in May 2004, Foley might join the VIPS in attacking the Administration.

Clarice Feldman wrote to Foley asking some questions, and he replied:

I didn’t know that Valerie Plame or Joseph Wilson existed until after the Novak article. I have never met nor communicated with either of them. Nor did I have any responsibility or authority relating to them, the reported trip to Niger, or the subsequent leak investigation. As for Ray McGovern, I don’t believe that I have either seen or talked to him since before his retirement from the Agency. That was many years ago; probably sometime in the late 1990’s. Please do not contact me again.

And Feldman naturally wonders:

Why did Wilson indicate to Vanity Fair that Foley was his wife’s boss when he apparently wasn’t? Why did McGovern suggest that Foley was going to become a more forceful critic of the Administration and the war after his retirement when he barely knew him and had had no recent contact with him at the time he made that suggestion?

Curiouser and curiouser.