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.