Alberto Gonzales is leaving the Justice Department with a lot of sensitive business pending. One open case of exceptional importance concerns the leak of highly classified information about the National Security Agency’s terrorist-surveillance program. Details of the program were published in the New York Times in a series of articles beginning on December 16, 2005, and supplemented in State of War, a book by Times reporter James Risen, which came out the following month.
A grand jury has been investigating the leak since January 2006. Earlier this month, a former Justice Department lawyer by the name of Thomas M. Tamm had his home searched and his computers, including two of his children’s laptops, seized, along with his personal papers, in a raid by the FBI. Newsweek’s Michael Isikoff reported that the raid was connected to a criminal probe into the NSA wiretapping leak.
Gonzales’s own participation in this case is of a piece with his overall performance: fecklessness combined with an inability to articulate a clear position. The fact is that the NSA leak in the Times occurred in the middle of a war. It concerned not secrets from the past, as in the 1971 Pentagon Papers case (also involving a leak to the Times), but an ongoing operational-intelligence program designed to prevent a second September 11. On its face, as I argued in COMMENTARY, the Times had violated Section 798 of Title 18, which makes it a crime to disclose classified information pertaining to communications intelligence.
In making the argument in COMMENTARY for prosecution, I understood full well that the probability that the Justice Department would bring an indictment of the editors and reporters of our leading newspaper was close to nil, and I said so at the time. But at the very least, a competent and articulate Attorney General, even if he saw compelling reasons not to proceed with a prosecution, could have stood up to explain both the law and its significance in wartime. A proper and much-needed public discussion would have ensued.
Gonzales did neither. Instead, he issued a very general statement: “Our prosecutors are going to look to see all the laws that have been violated. And if the evidence is there, they’re going to prosecute those violations,” and he did not follow up with any sort of action or further explanation.
The nation was rewarded for Justice’s forbearance by the subsequent publication in the Times of details of still another highly classified counterterrorism program involving terrorist financing.
Gonzales is now gone, but it is obvious that, with respect to the NSA terrorist-surveillance program, he has left us in the worst of all possible worlds. Liberals continue to express outrage at what they regard as a mortal threat to the First Amendment. The Justice Department has let stand unrebutted the false proposition that our Constitution is incompatible with laws forbidding the media to publish vital secrets. And the press continues to feel free to publish counterterrorism secrets with abandon.