The Washington Post today reported on an article by Paul R. Pillar in Foreign Affairs which criticizes the Bush Administration for “politicizing intelligence.”

Pillar’s basic contention is that the Bush Administration didn’t listen to the mandarins at the CIA. They cherry-picked analysis to support their own policy decisions, which were made independently of the opinions and preferences of far-better-qualified people like himself.

In Pillar’s view, the intelligence community has interests and responsibilities of its own, which need to be pursued without being in thrall to the whims of temporarily elected amateurs:

The intelligence community should be repositioned to reflect the fact that influence and relevance flow not just from face time in the Oval Office, but also from credibility with Congress and, most of all, with the American public. The community needs to remain in the executive branch but be given greater independence and a greater ability to communicate with those other constituencies (fettered only by security considerations, rather than by policy agendas). An appropriate model is the Federal Reserve, which is structured as a quasi-autonomous body overseen by a board of governors with long fixed terms.

In a slightly more polite way than the noisiest and most arrogant of the pouting spooks, Pillar is saying exactly the same thing. American foreign policy, decisions of peace and war, belong to an internal government elite, connected with and mirroring a national elite, not to temporarily elected parvenus with unconventional views on these matters, representing a bunch of yahoos from fly-over states.

At the very least, the intelligence community, if mean-spiritedly denied its own liberum veto, should really be entitled to cross the aisles and start vigorously criticizing and actively opposing any elected Administration’s policies, while retaining complete job security. A position in the US intelligence community ought to be rather like a tenured professorship at Harvard. And the collective body of that community should be, in relation to the US government, much like the Harvard faculty. When embarassed by the statements, policies, or behavior of a Bush, (shudder!) a Cheney, they ought to be able to circulate petitions advocating his removal, and vote on motions of censure.

Frankly, the more I read of this sort of arrogance, the more I feel like I’m revisiting some of the earlier sections of Milton’s Paradise Lost.

Murray Waas, at National Journal, is reporting that:

Vice President Dick Cheney’s former chief of staff, I. Lewis (Scooter) Libby, testified to a federal grand jury that he had been “authorized” by Cheney and other White House “superiors” in the summer of 2003 to disclose classified information to journalists to defend the Bush administration’s use of prewar intelligence in making the case to go to war with Iraq, according to attorneys familiar with the matter, and to court records…

Libby also indicated what he will offer as a broad defense during his upcoming criminal trial: that Vice President Cheney and other senior Bush administration officials had earlier encouraged and authorized him to share classified information with journalists to build public support for going to war. Later, after the war began in 2003, Cheney authorized Libby to release additional classified information, including details of the NIE, to defend the administration’s use of prewar intelligence in making the case for war.

Libby testified to the grand jury that he had been authorized to share parts of the NIE with journalists in the summer of 2003 as part of an effort to rebut charges then being made by former U.S. Ambassador Joseph Wilson that the Bush administration had misrepresented intelligence information to make a public case for war.

All this seems to go without saying.

L’Affaire Plame has been operating from the outset on the basis of a kind of bizarre hyper-legalism, in which senior officials of the Executive Branch of the government are being targeted for indictment, and prosecuted, on a strange theory that the principal functionaries of government, the ultimate users and proprietors of classified information, can be deemed to have injured or offended the government, i.e., themselves, by using classified information to inform the public.

But, of course, the Executive Branch is itself the actual owner of all US classified information, and the employer of every participant, so we are regarding the preposterous unfolding of a scenario in which subordinate members of the Executive (the CIA, the Department of Justice) are seeking to indict and/or convict their superiors (The Vice President’s Chief of Staff; and in the left’s happiest and wildest dreams, also the President’s Policy Chief of Staff, Karl Rove, and the Vice President himself).

Obviously the Executive Branch at its highest levels ought to be (absent a particular law) assumed to be entitled to use classified information in any manner it finds necessary or desirable in support of the policies of the Government, i.e., itself. At its most senior levels, the Executive branch can, in theory, classify or declassify at will.

So how can the Executive Branch be prosecuting the Executive Branch over its own classified information?

It is as if we find there were a dispute among the king’s servants in the royal castle over the proper arrangement of some table settings, and a coterie of disgruntled footmen had complained to the castle warden that the king’s chancellor’s seneschal was misusing the silver, and were trying to persuade him that the chancellor should be held responsible for this outrage as well, along with another principal crown minister, and all of them should be sacked and flung into the dungeon for their offense against the footmen.

The only possible rational basis for a possible crime would have to be the Intelligence Identities Act of 1982, which was enacted to protect genuinely covert intelligence officers, working overseas and consequently particularly vulnerable, from being endangered by having their identities disclosed by adversaries of the US Government. There has considerable public confusion concerning Mrs. Wilson’s employment status, but public information makes it clear enough that she has been working in Washington for more than the five years, stipulated in the Act.

In relation to the Intelligence Identities Protection Act, the special counsel refers to Plame as “a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years”. (8/27/04 Aff. at 28 n.15.)

Mr. Fitzgerald’s unspecific reference to Mrs. Wilson’s “covert overseas work” is very probably merely a desperate and highly disingenuous attempt to obfuscate the inapplicability of the statute serving as the basis for his entire investigation by so defining Mrs. Wilson’s employment as ipso facto covert, and treating any sort of trip abroad on Counterproliferation issues for consultation, or even conferencing, however brief, as sufficient to meet the terms of the statute.

If there is no violation of the 1982 Act, there was never a crime in the first place, and the entire affair represents a Kafka-esque spectacle of out-of-control partisan elements of government run wild, of government devouring its own tail.

They sure did. Gabriel Schoenfeld has a must-read article in the upcoming issue of Commentary, discussing the legal context of the New York Times’ decision to run the NSA electronic surveillance story last December:

The Times has led the pack in deploring Libby’s alleged leak, calling it “an egregious abuse of power” equivalent to “the disclosure of troop movements in wartime,” and blowing it up into a kind of conspiracy on the part of the Bush administration to undercut critics of the war. That its hysteria over the leak of Plame’s CIA status sits oddly with its own habit of regularly pursuing and publishing government secrets is something the paper affects not to notice. But if the Plame case reveals a hypocritical or partisan side to the Times’s concern for governmental secrecy, it also shows that neither the First Amendment nor any statute passed by Congress confers a shield allowing journalists to step outside the law.

The courts that sent Judith Miller to prison for refusing to reveal her sources explicitly cited the holding in Branzburg v. Hayes (1972), a critical case in the realm of press freedom. In Branzburg, which involved not government secrets but narcotics, the Supreme Court ruled that “it would be frivolous to assert . . . that the First Amendment, in the interest of securing news or otherwise, confers a license on . . . the reporter to violate valid criminal laws,” and that “neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.”

The Plame affair extends the logic of Branzburg, showing that a journalist can be held in contempt of court when the unauthorized disclosure of intelligence-related information is at stake.10 Making this episode even more relevant is the fact that the classified information at issue—about which Judith Miller gathered notes but never published a single word, hence doing no damage herself to the public interest—is of trivial significance in comparison with disclosure of the NSA surveillance program, which tracks the surreptitious activities of al-Qaeda operatives in the U.S. and hence involves the security of the nation and the lives of its citizens. If journalists lack immunity in a matter as narrow as Plame, they also presumably lack it for their role in perpetrating a much broader and deadlier breach of law.

Hat tip to Scott Johnson at Power Line.

The Washington Post reports today that Lewis Libby’s defense team has taken the obvious step of trying to force the prosecution to disclose the factual circumstances of Valerie Plame’s employment:

Attorneys for Vice President Cheney’s former chief of staff urged a court yesterday to force a prosecutor to turn over CIA records indicating whether former CIA operative Valerie Plame’s employment was classified, saying the answer is not yet clear.

As we have previously discussed here and here, it seems unlikely, on the basis of what we know, that Valerie Plame really was employed as a covert operative in the sense refered to in the 1982 Intelligence Identities Protection Act.

Accidentally discovered compassionately tutoring minority kids, Larry Wilkerson (splendid in maroon suspenders) poses for the admiring camera of the Washington Post.

The occasion was a lengthy exercise in puffery establishing (Colin Powell’s former State Department chief of staff) retired Colonel Larry Wilkerson as a great man, after which the hero climbs down from his monument, and goes to work bashing the Bush Administration.

One former commander is quoted saying of Wilkerson:

He is the most principled individual I have ever met and ever worked with. He is a remarkable guy with essentially no ego.

No ego? It must have been somebody else who “offered tart and colorful opinions” on adversaries within the administration, and said Powell was tired “mentally and physically,” in a May 2004 GQ interview which went all sorts of places Secretary of State Powell was unwilling to go, and which left egg all over his boss’s face.

Does someone with no ego boast openly to the Washington Post of his Vietnam combat service nearly forty years ago, and indulge in (what even the Post refers to as) a “predictable aside on hawks like Dick Cheney, Richard Perle, Douglas Feith and Paul Wolfowitz:”

“None of these guys ever heard a bullet go by their ears in combat.”

Do individuals with no ego commonly describe the President of the United States as “inept” and “unsophisticated?”

What we really find here is a preening snob whingeing bitterly about the unworthiness of his former superiors. And it’s always touching to observe the sterling character of those members of the liberal establishment who alert the media whenever they perform a charitable act.

All the admiring verbiage in the Post concerning Wilkerson’s alleged restraint since leaving the administration is more than a little disingenuous. Wilkerson has been on the war-path against the Bush Administration for months, making a wide round of public appearances and doing press interviews in which he has leveled any number of sensational and highly partisan charges.

Previously discussed Guardian interview.

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Hat tip to Reid Detchon (on my College Class email list).

The Anchoress takes on the Times leak theme. A lot of blogs, including this one, have commented on the obvious connection between yesterday’s news of large-scale disposable cell-phone purchases by suspicious persons in a variety of cities and last month’s New York Times’ story on secret NSA communications surveillance, but no matter how many of these you have already read, you’ll still want to take the time to read this one. I see 23 trackbacks already, but I’m adding another.

When you see one of these over Manhattan, Washington, or San Francisco, be sure to thank the New York Times for publishing its December expose of NSA surveillance of terrorist communications.

Terrorists read the papers too, and have responded to the Timely warning by switching to disposable cell phones. ABC News reports today:

(1/13/06) – Federal agents have launched an investigation into a surge in the purchase of large quantities of disposable cell phones by individuals from the Middle East and Pakistan, ABC News has learned.

The phones which do not require purchasers to sign a contract or have a credit card have many legitimate uses, and are popular with people who have bad credit or for use as emergency phones tucked away in glove compartments or tackle boxes. But since they can be difficult or impossible to track, law enforcement officials say the phones are widely used by criminal gangs and terrorists.

“There’s very little audit trail assigned to this phone. One can walk in, purchase it in cash, you don’t have to put down a credit card, buy any amount of minutes to it, and you don’t, frankly, know who bought this,” said Jack Cloonan, a former FBI official who is now an ABC News consultant.

Law enforcement officials say the phones were used to detonate the bombs terrorists used in the Madrid train attacks in March 2004.

“The application of prepaid phones for nefarious reasons, is really widespread. For example, the terrorists in Madrid used prepaid phones to detonate the bombs in the subway trains that killed more than 200 people,” said Roger Entner, a communications consultant.

The FBI is closely monitoring the potentially dangerous development, which came to light following recent large-quantity purchases in California and Texas, officials confirmed.

In one New Year’s Eve transaction at a Target store in Hemet, Calif., 150 disposable tracfones were purchased. Suspicious store employees notified police, who called in the FBI, law enforcement sources said.

In an earlier incident, at a Wal-mart store in Midland, Texas, on December 18, six individuals attempted to buy about 60 of the phones until store clerks became suspicious and notified the police. A Wal-mart spokesperson confirmed the incident.

The Midland, Texas, police report dated December 18 and obtained by ABC News states: “Information obtained by MPD [Midland Police Department] dispatch personnel indicated that approximately six individuals of Middle-Eastern origin were attempting to purchase an unusually large quantity of tracfones (disposable cell phones with prepaid minutes attached).” At least one of the suspects was identified as being from Iraq and another from Pakistan, officials said.

“Upon the arrival of officers, suspects were observed moving away from the registers appearing to evade detection while ridding themselves of the merchandise.”

Other reports have come in from other cities, including Dallas, and from authorities in other states. Authorities in Pennsylvania, New York and other parts of Texas confirmed that they were alerted to the cases, and sources say other jurisdictions were also notified.

Here is the theory of governance advanced by the New York Times reporter James Risen, explaining (to Katie Couric on the Today Show) why the Times’ 12/16 NSA terrorist surveillance story had to be published:

RISEN: Well, I–I think that during a period from about 2000–from 9/11 through the beginning of the Gulf–the war in Iraq, I think what happened was you–we–the checks and balances that normally keep American foreign policy and national security policy towards the center kind of broke down. And you had more of a radicalization of American foreign policy in which the–the–the career professionals were not really given a chance to kind of forge a consensus within the administration. And so you had the–the–the principles (sic)–Rumsfeld, Cheney and Tenet and Rice and many others–who were meeting constantly, setting policy and really never allowed the people who understand–the experts who understand the region to have much of a say.

COURIC: You suggest there were a lot of power-grabbing going on.

Mr. RISEN: Yes.

Mr. Risen clearly subscribes to an idiosyncratic school of Constitutionalism in which real governing authority is based upon “expertise” and “centrism,” and reposes in the hands of career bureaucrats, who are entitled to take drastic measures (even compromising National Security by leaking to the Press, if necessary) to defend their policy-making prerogative against usurpation by mere temporarily elected amateurs. Michael Barone also had some sarcastic things to say about this on Monday.

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The Times was not inhibited from proceeding with this story, either by a request to refrain from publishing information injurious to National Security in time of war by the President of the United States, or by consideration of the questionable motives and psychological health of their informant Mr. Tice.

Tice, Risen, the New York Times and its editor and publisher have all committed very serious crimes.

As was already pretty darned clear, Russell Tice today is revealed to be at least one source for the New York Times’ NSA Flap story.

Tice Admits Being a Source for The New York Times

The same day The New York Times broke the story of the NSA eavesdropping without warrants, Tice surfaced as a whistleblower in the agency. He told ABC News that he was a source for the Times’ reporters. But Tice maintains that his conscience is clear.

“As far as I’m concerned, as long as I don’t say anything that’s classified, I’m not worried,” he said. “We need to clean up the intelligence community. We’ve had abuses, and they need to be addressed.”

The NSA revoked Tice’s security clearance in May of last year based on what it called psychological concerns and later dismissed him. Tice calls that bunk and says that’s the way the NSA deals with troublemakers and whistleblowers. Today the NSA said it had “no information to provide.”

ABC video

NSA letter to Tice

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Background on Tice here and here.

Jason Leopold, writing in the leftwing venue “truthout,” claims he has leakers of his own, leaking details of Inspector Javert’s, excuse me, Special Council Fitzgerald’s obsessive and monomanaical quest to apprehend Jean Valjean, excuse me, indict White House Deputy Chief of Staff Karl Rove:

Special Prosecutor Patrick Fitzgerald is said to have spent the past month preparing evidence he will present to a grand jury alleging that White House Deputy Chief of Staff Karl Rove knowingly made false statements to FBI and Justice Department investigators and lied under oath while he was being questioned about his role in the leak of covert CIA agent Valerie Plame’s identity more than two years ago, according to sources knowledgeable about the probe…

According to sources, Fitzgerald had planned to meet with the grand jury several times last month, hoping to wrap up the case specifically as it relates to Rove’s involvement. But the prosecutor, who empanelled a second grand jury in November and whose term expires in 18 months, had his hands full dealing with another high-profile criminal case he is prosecuting involving Lord Conrad Black, owner of several major metropolitan newspapers, who was indicted on charges including racketeering.

Moreover, several members of the grand jury had questions involving Rove’s prior testimony before the previous grand jury on four separate occasions and had requested additional information about the testimony and about the overall case, these sources said, leading to a delay in the proceedings so Fitzgerald could provide that information.

Robert Luskin, Rove’s attorney, said in a brief interview Monday that he has not heard anything about the grand jury requesting additional information about Rove and is unaware that Fitzgerald has been building a case against his client…

But sources knowledgeable about the case against Rove say that he was offered a plea deal in December and that Luskin had twice met with Fitzgerald during that time to discuss Rove’s legal status. Rove turned down the plea deal, which would likely have required him to provide Fitzgerald with information against other officials who were involved in Plame’s outing as well as testifying against those people, the sources said.

J. Peter Mulhern, at American Thinker, debunks the premises underlying the fabricated NSA Flap:

The NSA flap has very little potential to hurt President Bush and every serious player among his enemies must know that…

You can’t sustain a scandal by revealing the shocking truth that the President of the United States is doing his job. He isn’t ashamed of gathering intelligence on our deadly enemies and nobody who doesn’t already loathe President Bush will blame him for it. It takes some scandalous material to make a scandal. There may, for example, be a scandal when the President sodomizes an intern in the Oval Office. Whatever the President and the First Lady may do in the family quarters after hours, it isn’t going to cause a scandal.

But, but, I hear them sputter, the President violated the law. He bypassed the checks and balances Congress wisely provided when it established the secret FISA court. Isn’t that enough to get him in serious hot water?

No. All the arguments about whether FISA applies to wartime intelligence gathering are so much pettifogging pedantry. FISA is a model of opaque draftsmanship. Don’t take my word for it, try to read it yourself.

Good luck.

It is certainly possible to read FISA as attempting to limit President Bush’s power to intercept al Qaeda communications. It is also possible to read it more modestly. In the last analysis, however, FISA is beside the point.

If FISA tries to restrict the President’s power to spy on our enemies during a state of war that Congress itself proclaimed then FISA is blatantly unconstitutional. Only a fool or a traitor would suggest that Congress can constitutionally require that the President play “Mother-may- I” with a motley collection of judges before intercepting enemy communications in wartime.

Congress can no more empower judges to make decisions about how we gather intelligence than it could empower them to decide what targets our Air Force should bomb or what streets our troops should patrol.

There is nothing complicated about this. The President is Commander in Chief. He makes the military decisions. He decides, with the advice of his subordinate commanders, when and where the United States government should gather intelligence because that is a military decision…

FISA may instruct the President to consult a panel of judges before listening to enemy communications. If it does it is unconstitutional, null, void and asinine.

When Congress violates the Constitution by trying to hamper the legitimate exercise of executive authority the President has both the right and the duty to ignore it. Which brings us to the second reason that the NSA nonscandal will sink without a trace.

There won’t be any riveting hearings, trials or judicial decisions to keep the NSA pot boiling because the President’s determination about the scope of his own constitutional authority to gather military intelligence is not subject to any meaningful review. With the advice of the Attorney General and his other lawyers the President has decided that he is constitutionally empowered to authorize the NSA program which is currently under attack. For all practical purposes that decision is final.

Ralph Peters, in the New York Post, tells democrats and their MSM allies promoting the ersatz NSA scandal:

Stop lying. Show us the victims.

Name one honest citizen who has been targeted by our intelligence system. Name one innocent man or woman whose life has been destroyed. Come on, Nancy. Give it up, Howard. Name just one.

Can’t do it? OK. Let’s dispense with the partisan rhetoric and reach for the facts:

Has a single reader of this column suffered personally from our government’s efforts to defend us against terrorists? Have any of your relatives or even your remotest acquaintances felt our intel system intrude into their lives?

That’s what I always ask the group-think lefties. Not one has ever been able to answer “Yes.”

The same big-lie politicians attacking the president’s efforts to uncover plots against America by monitoring terrorist communications will be the first to shriek that the War on Terror has failed when we’re attacked again.

They want it both ways: Drop our defenses, then blame Bush when terrorists strike