Commentary Magazine


Topic: communications intelligence

Eavesdropping on Hell

Along with interrogations of captured al-Qaeda fighters, communications intelligence (known as COMINT, in the intel trade) is one of the keys to American self-defense. Congress has long recognized the critical nature of this brand of intelligence. In the aftermath of World War II, it protected American activities in this realm in a special statute, Section 798 of Title 18, which makes it a crime to publish classified information pertaining to COMINT.

With the Bush administration’s failure to prosecute the editors and reporters of the New York Times, who in 2005 compromised one of America’s most critical programs for tracking al-Qaeda communications, Section 798 seems to have lapsed into desuetude. Evidently, the political costs of carrying out such a prosecution were deemed too great, and the benefits to national security, when weighed in the balance, insufficient.

In the wake of the Times’s disclosures, it is impossible to say whether al-Qaeda operatives became more careful than they already were in their use of emails and telephone communications. But that would be a logical supposition.

Whether or not that is the case, it is worth taking note of a chapter from a different era, when one of the world’s most evil regimes was carrying out its most evil deed—the extermination of the Jews. Eavesdropping on Hell is an authoritative account, produced by the National Security Agency, of what was learned about the Holocaust from COMINT as it was unfolding.

It appears that the Nazis, acutely aware of the price they might pay for their actions, were highly disciplined in their approach to using radios and other vulnerable means of communication. The result was that:

Allied communications intelligence discovered nothing of the prewar and early wartime high-level Nazi planning for the general campaign against Europe’s Jews and other groups targeted for elimination. This situation also was true for most of the large-scale wartime plans, such as the massacres in the western Soviet Union or the death camps. There were [a] few exceptions to this trend, most notably the intercept and decryption of German police messages that indicated that Italian Jews were soon to be subjected to roundup and deportation to camps in October 1943. Usually, though, Nazi planning, preparations, and orders to carry out these operations were not communicated in a means such as radio that could be intercepted by the Allied monitoring stations. Plans and orders were delivered by courier or were communicated orally at meetings and thus denied to Allied monitors. As a result, information that could have warned of an impending operation was missed.

The entire study is a demonstration of the vital importance of COMINT and the consequences of its absence.

Along with interrogations of captured al-Qaeda fighters, communications intelligence (known as COMINT, in the intel trade) is one of the keys to American self-defense. Congress has long recognized the critical nature of this brand of intelligence. In the aftermath of World War II, it protected American activities in this realm in a special statute, Section 798 of Title 18, which makes it a crime to publish classified information pertaining to COMINT.

With the Bush administration’s failure to prosecute the editors and reporters of the New York Times, who in 2005 compromised one of America’s most critical programs for tracking al-Qaeda communications, Section 798 seems to have lapsed into desuetude. Evidently, the political costs of carrying out such a prosecution were deemed too great, and the benefits to national security, when weighed in the balance, insufficient.

In the wake of the Times’s disclosures, it is impossible to say whether al-Qaeda operatives became more careful than they already were in their use of emails and telephone communications. But that would be a logical supposition.

Whether or not that is the case, it is worth taking note of a chapter from a different era, when one of the world’s most evil regimes was carrying out its most evil deed—the extermination of the Jews. Eavesdropping on Hell is an authoritative account, produced by the National Security Agency, of what was learned about the Holocaust from COMINT as it was unfolding.

It appears that the Nazis, acutely aware of the price they might pay for their actions, were highly disciplined in their approach to using radios and other vulnerable means of communication. The result was that:

Allied communications intelligence discovered nothing of the prewar and early wartime high-level Nazi planning for the general campaign against Europe’s Jews and other groups targeted for elimination. This situation also was true for most of the large-scale wartime plans, such as the massacres in the western Soviet Union or the death camps. There were [a] few exceptions to this trend, most notably the intercept and decryption of German police messages that indicated that Italian Jews were soon to be subjected to roundup and deportation to camps in October 1943. Usually, though, Nazi planning, preparations, and orders to carry out these operations were not communicated in a means such as radio that could be intercepted by the Allied monitoring stations. Plans and orders were delivered by courier or were communicated orally at meetings and thus denied to Allied monitors. As a result, information that could have warned of an impending operation was missed.

The entire study is a demonstration of the vital importance of COMINT and the consequences of its absence.

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The Leak Wars

“The government’s ability to eavesdrop on terrorism suspects overseas allowed the United States to obtain information that helped lead to the arrests last week of three Islamic militants accused of planning bomb attacks in Germany, Mike McConnell, the director of national intelligence, told Senators on Monday”–the New York Times, September 11, 2007

This is curious. Here we have our top spy revealing one of our nation’s most sensitive secrets, involving not only sources and methods but also that holy of holies: communications intelligence. 

If, say, the fruits of an ongoing U.S. surveillance program had been something uncovered and published by the New York Times for all the world to read, would a whole host of critics, including me, be up in arms? What is going on?

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“The government’s ability to eavesdrop on terrorism suspects overseas allowed the United States to obtain information that helped lead to the arrests last week of three Islamic militants accused of planning bomb attacks in Germany, Mike McConnell, the director of national intelligence, told Senators on Monday”–the New York Times, September 11, 2007

This is curious. Here we have our top spy revealing one of our nation’s most sensitive secrets, involving not only sources and methods but also that holy of holies: communications intelligence. 

If, say, the fruits of an ongoing U.S. surveillance program had been something uncovered and published by the New York Times for all the world to read, would a whole host of critics, including me, be up in arms? What is going on?

The conundrum is easily resolved. First, McConnell, as the nation’s top intelligence officer, and unlike any reporter or editor at the Times, is in a position to evaluate whether a given disclosure will cause damage to American security.

Second, McConnell has the authority, under law, to declassify information when he determines it is in the national interest. The New York Times claims the same authority under the First Amendment. But the First Amendment is compatible with a whole range of restrictions on the press, as in the law of libel, the laws governing commercial speech, and so forth. By contrast, the idea that the media is not obligated to follow laws currently on the books restricting publication of national-defense information flies in the face of both reason and precedent.  

Third, in disclosing the success of the U.S. surveillance program in averting a disaster in Germany, McConnell was not revealing anything new. Why not? Because the Times had already compromised the key facts about the scope of National Security Agency surveillance in a series of stories that began in December 2005.

The fact that even after the Times had tipped them off, terrorists continue to use readily interceptible telephones and email demonstrates how difficult it is for them to find alternative means of rapid long-distance communication. But that is by no means a justification for what the Times did. A host of governments officials–Democrats and Republicans alike–have attested to the damage inflicted on U.S. counterterrorism efforts by the Times’s reporting.

CIA Director General Michael V. Hayden, speaking earlier this week at the Council on Foreign Relations, addressed the problem. His words are worth quoting at length:

Revelations of sources and methods or what seems to me to be an impulse to drag anything CIA does to the darkest corner of the room can make it very difficult for us to perform our vital work. When our operations are exposed–you know, the legal, authorized operations overseen by Congress–when those operations are exposed, it reduces the space and it damages the tools we use to protect Americans.

After the press report on how banking records in the international Swiss network could be monitored, I read a claim that this leak–and I’m quoting now–”bears no resemblance to security breaches”. . . I could not disagree more strongly. In a war that largely depends on our success on collecting intelligence on the enemy, publishing information on our sources and methods can be just as damaging as revelations of troop or ship movements have been in the past. Now the compromise to safety can be both immediate and lasting, and it extends beyond specific individuals. Each revelation of our methods in tracking terrorists, tracking WMD, tracking other threats allows our enemies to cover their tracks and change their practices. We’ll respond, but it takes us valuable time to readjust.

Now, some are out there who say there’s no evidence that leaks of classified information have actually harmed national security. As CIA director, I’m telling you there is and they have. Let me give you just two examples. In one case, leaks provided ammunition for a government to prosecute and imprison one of our sources whose family was also endangered. The revelations had an immediate chilling affect on our ability to collect [intelligence] against a top priority target. In another, a spate of media reports cost us several promising counterterrorism and counter-proliferation assets. Sources not even involved in the operation that was exposed lost confidence that their relationship with us could be kept secret and so they stopped reporting.
. . . On their own, journalists often simply don’t have all the facts needed to make the call on whether the information can be released without harm. I’ve heard some justify a release based on their view of the sensitivity of their story’s content with no understanding of the effect the release may have on the intelligence source at the heart of the story. . . [W]he the media claims an oversight role on clandestine operations, it moves that clandestine operation into an arena where we cannot clarify, we cannot explain, we cannot defend our actions without doing even further damage to our national security.

It’s important–as I say this, it’s important to bear in mind that my agency is subject to another oversight mechanism that has full access to our operations and takes our security requirements into account, it’s your representatives in Congress.

George Tenet and Porter Goss, George Bush’s previous CIA directors, never said anything nearly as sustained or lucid on this vital subject–and they and we paid for their silence with an accelerating flow of leaks appearing in the media. It is unlikely that Hayden’s caution will be heeded by many in the press, least of all at the New York Times. But the issue, at least, has finally been joined in a serious way by the Bush administration.

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Fare Thee Well, Alberto Gonzales, and Good Riddance

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.

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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.

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Will the New York Times Finally Be Indicted?

Is it possible that the New York Times could still be indicted for revealing the existence of the NSA’s Terrorist Surveillance Program in a December 2005 front-page story?

Shortly after the revelation appeared, a federal grand jury was empaneled to investigate the leak. A range of government officials, including Jane Harmon, then the ranking Democrat of the House Intelligence Committee, pointed to the severe damage that the Times story did to our efforts to intercept al-Qaeda communications and thwart a second September 11. Shortly thereafter, President Bush called the newspaper’s conduct “shameful.”

I agreed with these assessments. In fact, I argued in March 2006 that the New York Times had also broken the black-letter law. It had breached the provisions of Section 798 of Title 18, which make it a crime to publish classified information concerning the interception of communications intelligence. Shortly thereafter, Attorney General Alberto Gonzalez hinted that, in light of several statutes on the books, the New York Times’s conduct was under review by his department.

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Is it possible that the New York Times could still be indicted for revealing the existence of the NSA’s Terrorist Surveillance Program in a December 2005 front-page story?

Shortly after the revelation appeared, a federal grand jury was empaneled to investigate the leak. A range of government officials, including Jane Harmon, then the ranking Democrat of the House Intelligence Committee, pointed to the severe damage that the Times story did to our efforts to intercept al-Qaeda communications and thwart a second September 11. Shortly thereafter, President Bush called the newspaper’s conduct “shameful.”

I agreed with these assessments. In fact, I argued in March 2006 that the New York Times had also broken the black-letter law. It had breached the provisions of Section 798 of Title 18, which make it a crime to publish classified information concerning the interception of communications intelligence. Shortly thereafter, Attorney General Alberto Gonzalez hinted that, in light of several statutes on the books, the New York Times’s conduct was under review by his department.

How did the Bush administration follow up? Faced with the politically explosive challenge of indicting our country’s leading newspaper, it did nothing at all. It was rewarded for its forbearance by another New York Times sensation, a front-page story in May 2006 revealing the details of a second highly classified counterterrorism program that worked through the European banking consortium SWIFT.

When the European central bank closed the program some months later, the New York Times ran a short item taking note, which it buried on the bottom of an inside page.

Now, over this past weekend, nearly two years after the initial NSA leak, Congress finally acted to codify the intelligence program that the New York Times compromised. But as coincidence would have it, the federal grand jury hearing evidence in the leak investigation is still active, and at the very same moment that Congress was tidying up the law, there was dramatic action.

Newsweek’s Michael Isikoff broke the story on Sunday, reporting that

a team of FBI agents, armed with a classified search warrant, raided the suburban Washington home of a former Justice Department lawyer. The lawyer, Thomas M. Tamm, previously worked in Justice’s Office of Intelligence Policy and Review (OIPR)—the supersecret unit that oversees surveillance of terrorist and espionage targets. The agents seized Tamm’s desktop computer, two of his children’s laptops, and a cache of personal files. Tamm and his lawyer, Paul Kemp, declined any comment. So did the FBI. But two legal sources who asked not to be identified talking about an ongoing case told Newsweek the raid was related to a Justice criminal probe into who leaked details of the warrantless eavesdropping program to the news media.

With the investigation making progress, the possibility remains that even if the New York Times is not indicted, its reporters—James Risen and Eric Lichtblau—might be called before the grand jury and asked to confirm under oath that Tamm, or some other suspect, was their source. That is what happened to a whole battalion of journalists in the investigation of Scooter Libby in the Valerie Plame fiasco.

If Risen and Lichtblau promised their source confidentiality, they might choose not to testify. That would potentially place them, like Judith Miller in the Libby investigation, in contempt of court and even land them in prison.

Back when the NSA leak first occurred, I rated the probability of an indictment of the Times at somewhere between 0 and 1 percent. Today, with the Bush administration in disarray, and Alberto Gonzalez powerless, the probabilities have plummeted to .000001 percent. But a contempt citation is another kettle of fish. With the Judith Miller precedent both fresh and firmly fixed in law, the NSA-leak case might suddenly become very interesting.

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The Ten Commandments of the New York Times

The New York Times has “a comprehensive set of ethical guidelines, but if they were reduced to Ten Commandments, the first two would certainly be Don’t Lie and Don’t Do Anything Illegal”—or so says Matthew Purdy, the “investigations editor” at the newspaper. Purdy is responsible for leading the reporters and other editors who, among other things, try to unearth highly classified U.S. government secrets, often with great success.

“[W]e go to great lengths to follow the law while reporting aggressively,” says Purdy, and he cites an example:

Evidence that emerged during a terrorism trial in London that ended recently showed the authorities there had surveillance on two of the July 7, 2005, transit bombers at least a year before those deadly attacks, but had not followed up on those suspects. This was urgent information, but a British court order prohibited publication until the trial was over. We, like our brethren in the British press, held the story for months until the verdicts were in.

But, of course, Purdy is here talking about British law, which his newspaper does seem to scrupulously observe—even going so far as to block British readers from reading certain stories on its website. (The Times‘s own story about this extraordinary practice, “Times Withholds Web Article in Britain,” can be viewed here, though the link may require registration.)

But what about U.S. law?

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The New York Times has “a comprehensive set of ethical guidelines, but if they were reduced to Ten Commandments, the first two would certainly be Don’t Lie and Don’t Do Anything Illegal”—or so says Matthew Purdy, the “investigations editor” at the newspaper. Purdy is responsible for leading the reporters and other editors who, among other things, try to unearth highly classified U.S. government secrets, often with great success.

“[W]e go to great lengths to follow the law while reporting aggressively,” says Purdy, and he cites an example:

Evidence that emerged during a terrorism trial in London that ended recently showed the authorities there had surveillance on two of the July 7, 2005, transit bombers at least a year before those deadly attacks, but had not followed up on those suspects. This was urgent information, but a British court order prohibited publication until the trial was over. We, like our brethren in the British press, held the story for months until the verdicts were in.

But, of course, Purdy is here talking about British law, which his newspaper does seem to scrupulously observe—even going so far as to block British readers from reading certain stories on its website. (The Times‘s own story about this extraordinary practice, “Times Withholds Web Article in Britain,” can be viewed here, though the link may require registration.)

But what about U.S. law?

As Purdy surely knows, among other things, the United States has a statute on the books—Section 798 of Title 18—that makes it a crime to publish classified information pertaining to communications intelligence. The Times has flagrantly violated this provision, as when it published James Risen and Eric Lichtblau’s December 16, 2005 article disclosing a top-secret National Security Agency program to intercept al-Qaeda communications, a story that numerous government officials, including Jane Harman, then the ranking Democrat on the House intelligence committee, say caused serious harm to American counterterrorism efforts.

The Times‘s position seems to be that Section 798 is unconstitutional, although none of its reporters, editors, or lawyers has ever come out and actually said so. A debate can certainly be had about the constitutional status of Section 798. But as I point out in a sharp exchange with another Times editor in the current issue of the New Republic (which continued here for another half-round), it is up to Congress to pass laws and the courts then determine whether they are unconstitutional. Journalists, even powerful ones like the editors of the Times, are not free to pick and choose the statutes they wish to observe and then claim immunity from prosecution for violating the others.

Yes, the Times does go to “great lengths,” as Matthew Purdy says, to observe the law—British law, that is. Its adherence to American law is a different story. If nothing else, our newspaper of record has thus found a very imaginative way to observe its own Ten Commandments.

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Sam Tanenhaus: Arsonist

The current issue of the New Republic contains a caustic exchange between me and Sam Tanenhaus, editor of the Sunday New York Times book review.

Tanenhaus had written an article in TNR about William F. Buckley, Jr., the broader conservative movement, and today’s war on terror. In an aside, he said that COMMENTARY had called for the prosecution of the editors of the New York Times for “treason.” He also characterized the NSA terrorist surveillance program—the highly classified counterterrorism program disclosed by his newspaper in December 2005—as a “domestic surveillance program.”

I wrote a letter pointing out that in my March 2006 COMMENTARY article about the affair, I never accused the editors of the Times of treason. I did not use the T-word at all—precisely because, whatever else they did, the Times’s editors had not committed that particular crime. Nor did I say they had committed espionage. What I argued was that they had violated a U.S. statute proscribing the publication of classified information pertaining to communications intelligence.

In my letter to TNR, I further pointed out that it was inexact to call the NSA program “domestic.” In fact it was international, tapping only those conversations or intercepting those emails that had crossed borders, and in which one party was a suspected al-Qaeda operative either in the United States or abroad.

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The current issue of the New Republic contains a caustic exchange between me and Sam Tanenhaus, editor of the Sunday New York Times book review.

Tanenhaus had written an article in TNR about William F. Buckley, Jr., the broader conservative movement, and today’s war on terror. In an aside, he said that COMMENTARY had called for the prosecution of the editors of the New York Times for “treason.” He also characterized the NSA terrorist surveillance program—the highly classified counterterrorism program disclosed by his newspaper in December 2005—as a “domestic surveillance program.”

I wrote a letter pointing out that in my March 2006 COMMENTARY article about the affair, I never accused the editors of the Times of treason. I did not use the T-word at all—precisely because, whatever else they did, the Times’s editors had not committed that particular crime. Nor did I say they had committed espionage. What I argued was that they had violated a U.S. statute proscribing the publication of classified information pertaining to communications intelligence.

In my letter to TNR, I further pointed out that it was inexact to call the NSA program “domestic.” In fact it was international, tapping only those conversations or intercepting those emails that had crossed borders, and in which one party was a suspected al-Qaeda operative either in the United States or abroad.

Summing up both of my objections to Tanenhaus’s article, I wrote: “To confuse an international surveillance program with a domestic one is to be as imprecise and inflammatory as to use the word ‘treason’ in describing a much less serious violation of the law.”

“Inflammatory” was the right word. For if in his initial article Tanenhaus was tending toward the incendiary, his response to my letter, now published in TNR, is a Molotov cocktail.

First he accuses me of propagating “nonsense.” Then he pours a bit of gasoline into the bottle, saying that the “charge of espionage implies a corollary charge of treason,” and that in distinguishing between the two I was employing a “mode of clarification” that is precisely like “one used a half-century ago by Joseph McCarthy.”

But I never said, to repeat, that editors at the Times committed either treason or espionage. Section 798 of Title 18, the provision at issue, is entitled “Disclosure of classified information” and it is very easy to understand. Even analysts who disagree with me about the desirability of prosecuting the Times—Morton Halperin, for example, of George Soros’s Open Society Institute—concur that the Times did indeed break this law.

As for his calling the NSA surveillance program “domestic,” Tanenhaus justifies this with a single citation from the December 16, 2005 Washington Post in which it was called “domestic spying”—as if that settled the matter. It doesn’t. And it doesn’t add a single fact to the discussion, except that someone at the Washington Post is also confused.

I have read a lot of Tanenhaus’s writings over the years in the Times, in Vanity Fair, in Slate, and even in COMMENTARY. I have never known him to break into a sweat or even get hot under the collar. For that matter, though he writes at great length about current events, I have never seen him stake out a genuinely controversial position on anything—attacks on safe targets like Pat Buchanan or Ann Coulter clearly do not count. His past reticence on matters of importance was always something of a mystery to me, although I have had my theories. Whatever explains that past reticence, his present act of minor intellectual arson in defense of his employer, in which he does not hesitate to toss in the name of Joseph McCarthy as tinder, offers an additional clue to the puzzle—about which, once again, I have my theories.

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