Killing the messenger

Today's NY Times has an article on how the government is pursuing criminal charges against those who leaked the NSA surveillance story to the paper and, perhaps, against the paper itself.

WASHINGTON, Feb. 11 — Federal agents have interviewed officials at several of the country's law enforcement and national security agencies in a rapidly expanding criminal investigation into the circumstances surrounding a New York Times article published in December that disclosed the existence of a highly classified domestic eavesdropping program, according to government officials.

The investigation, which appears to cover the case from 2004, when the newspaper began reporting the story, is being closely coordinated with criminal prosecutors at the Justice Department, the officials said. People who have been interviewed and others in the government who have been briefed on the interviews said the investigation seemed to lay the groundwork for a grand jury inquiry that could lead to criminal charges…

Mr. Goss, speaking at a Senate intelligence committee hearing on Feb. 2, said: "It is my aim, and it is my hope that we will witness a grand jury investigation with reporters present being asked to reveal who is leaking this information. I believe the safety of this nation and the people this country deserve nothing less."

The case is viewed as potentially far reaching because it places on a collision course constitutional principles that each side regards as paramount. For the government, the investigation represents an effort to punish those responsible for a serious security breach and enforce legal sanctions against leaks of classified information at a time of heightened terrorist threats. For news organizations, the inquiry threatens the confidentiality of sources and the ability to report on controversial national security issues free of government interference…

At the same time, conservatives have attacked the disclosure of classified information as a illegal act, demanding a vigorous investigative effort to find and prosecute whoever disclosed classified information. An upcoming article in Commentary magazine suggests that the newspaper might be prosecuted for violations of the Espionage Act and said, "What The New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism."

The Justice Department took the unusual step of announcing the opening of the investigation on Dec. 30, and since then, government officials said, investigators and prosecutors have worked quickly to assemble an investigative team and obtain a preliminary grasp of whether the leaking of the information violated the law. Among the statutes being reviewed by the investigators are espionage laws that prohibit the disclosure, dissemination or publication of national security information…

Some media lawyers believe that The Times has powerful legal arguments in defense of its reporting and in protecting its sources. Theodore J. Boutrous Jr., who has represented publications like The Wall Street Journal and Time magazine, said, "There is a very strong argument that a federal common-law reporters' privilege exists and that privilege would protect confidential sources in this case. There is an extremely strong public interest in this information and the public has the right to understand this controversial and possibly unconstitutional public policy."

Glenn Greenwald comments appropriately:

In essence, while the President sits in the White House undisturbed after proudly announcing that he has been breaking the law and will continue to do so, his slavish political appointees at the Justice Department are using the law enforcement powers of the federal government to find and criminally prosecute those who brought this illegal conduct to light...

So now we're a country which allows its leaders to flagrantly violate the law -- even cheering them on as they do it -- and we imprison the journalists who report that illegal behavior to the public. That sounds like a lot of things. The United States isn't one of them.