Thursday, October 18, 2007


Good Leaks and Bad Leaks

From Monday's New York Post:
October 15, 2007 -- WASHINGTON - U.S. intelligence officials got mired for nearly 10 hours seeking approval to use wiretaps against al Qaeda terrorists suspected of kidnapping Queens soldier Alex Jimenez in Iraq earlier this year, The Post has learned.
[. . .]
In the early hours of May 12, seven U.S. soldiers - including Spc. Jimenez - were on lookout near a patrol base in the al Qaeda-controlled area of Iraq called the "Triangle of Death."

Sometime before dawn, heavily armed al Qaeda gunmen quietly cut through the tangles of concertina wire surrounding the outpost of two Humvees and made a massive and coordinated surprise attack.

Four of the soldiers were killed on the spot and three others were taken hostage.

A search to rescue the men was quickly launched. But it soon ground to a halt as lawyers - obeying strict U.S. laws about surveillance - cobbled together the legal grounds for wiretapping the suspected kidnappers.

Starting at 10 a.m. on May 15, according to a timeline provided to Congress by the director of national intelligence, lawyers for the National Security Agency met and determined that special approval from the attorney general would be required first.

For an excruciating nine hours and 38 minutes, searchers in Iraq waited as U.S. lawyers discussed legal issues and hammered out the "probable cause" necessary for the attorney general to grant such "emergency" permission.

Finally, approval was granted and, at 7:38 that night, surveillance began.

"The intelligence community was forced to abandon our soldiers because of the law," a senior congressional staffer with access to the classified case told The Post.

"How many lawyers does it take to rescue our soldiers?" he asked. "It should be zero."
Indeed. (Emphasis mine.)

Now, contrast that with this, from the San Francisco Chronicle:
House OKs bill to protect reporters
in U.S. courts by wide margin
(10-17) 04:00 PDT Washington - --
The House overwhelmingly approved a media shield bill Tuesday that would protect reporters from having to reveal their confidential sources in federal courts, despite warnings from the White House that it could lead to more leaks of classified information.

The measure passed by a lopsided vote, 398-21, as lawmakers complained that journalists are under siege from federal prosecutors and civil litigants seeking to unmask their sources. In the end, 176 Republicans joined virtually all Democrats to support the bill.

In an unusual alliance, even top Republican leaders like House Minority Leader John Boehner, R-Ohio, broke with the Bush administration to join the majority to pass a bill that supporters said would bolster the freedom of the press.

Let's see if I have this straight. Journalists want legislation to protect them and their sources, even when those sources are needed for law-enforcement or national security... and this is granted by acclamation.

US combat troops, on the other hand, want access to sources that can save American lives... and are rebuffed.

Is it just me? Or does that seem upside-down to you, too?

(Michelle Malkin has more on the first story; Powerline has the second.)

Scott Ott has more, and he's up to his usual standards:
Under a measure facing certain approval in Congress, journalists stand to gain increased protection for hiding the sources of their stories, and their bosses would gain support for their practice of disguising the actual number of people who read, watch or listen to those reports.

“This is a great victory for the free press,” said an unnamed top-ranking official at the Secret Society of Professional Journalists. [...] This bill ensures that the news will continue to flow freely from unknown sources to undisclosed consumers.”
Said consumers to include al-Qaeda, no doubt. (Newspapers should not discriminate against a particular subgroup of customers, after all. If that's the information that al-Qaeda wants, no doubt the New York Times will take pains to provide it, in the ongoing efforts to keep their subscribers happy.)

UPDATE: This, however, strikes me as good news:
Senate Democrats and Republicans reached agreement with the Bush administration yesterday on the terms of new legislation to control the federal government's domestic surveillance program, which includes a highly controversial grant of legal immunity to telecommunications companies that have assisted the program, according to congressional sources.
I'm not sure what the Democrats' purpose here was. But when the government is prosecuting a war, and using legal means to obtain intelligence for that war, then it makes no sense to sue companies for cooperating with the government.

I mean, let's be serious. Are we really expecting that anyone will have a legitimate case to bring here? Will Aunt Maggie sue that the government is listening in when she talk to Great-Aunt Dora about pie recipes? Will a criminal confess guilt to his lawyer in a privileged conversation, and find a recording show up at his trial? (I doubt very much we'd see that, but even if we did, I'd think it would make sense to sue the government, not the telecom company.)

And if we're allowed to bring frivolous lawsuits against companies cooperating with the government, on a matter of national security, during wartime, then what's next? Can we sue munitions manufacturers for cooperating with the government too?

Or imagine this: a terrorist attack is thwarted in Berkeley by alert police officers, and the suspect is turned over to federal authorities. The poor boy's weeping mother then sues the Berkeley police department for turning her son over to those bad, bad Guantanamo people. Yep, I could see that happening.

Although even Berkeley has its moments of sanity...

UPDATE II: Perhaps I was hasty in applauding the granting of immunity -- including ex post facto immunity, apparently -- to telecoms that cooperate with the federal government.

Yes, I emphatically think it's a bad idea to be penalized for cooperating with your own government in wartime... and a few high-profile lawsuits would do wonders towards making companies skittish about such cooperation in the future. (No doubt that was precisely the idea.)

Nonetheless, immunity ex post facto doesn't smell right, even if, in this case, nobody has actually sued the telecoms (and won) yet.

Atrios seems to agree, and got a Tennessee law professor to reply:
The answer is that only criminal, not civil, action is prohibited under the ex post facto prohibition. (Don't feel bad, Atrios -- James Madison himself was confused on this at one point and was corrected, if I recall correctly, by James Iredell at the constitutional convention). In addition, ex post facto is about penalties, not amnesties. Congress is not prohibited from blocking civil actions by statute, particularly where there's a national security angle. This goes back at least to Dames & Moore v. Regan, which involved the Iranian hostage settlement, and really dates back to cases in the 1930s dealing with claims against the Bolshevik government in Russia on behalf of Tsarist-era creditors, etc.
I don't blame James Madison for getting confused; it confuses me too. Nonetheless, it does seem as though there's a strong case to be made for the legality of this.

And, according to Instapundit, Sen. Chris Dodd is putting a hold on the bill -- which, as I understand it, means that the telecoms don't have immunity yet. Hang on.


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