DOJ to Prosecute New York Times over NSA Story?
In a Newsweek exclusive three week ago, former Justice Department official Thomas Tamm revealed his role in helping the New York Times make public President Bush's program of illegal domestic surveillance. Now Salon's Glenn Greenwald has details on the DOJ's efforts to punish the whistleblower. And as it turns out (and as I suggested back in 2007), the Bush administration's ultimate target may be the New York Times itself.
As Greenwald spells out today, the Justice Department investigation is not pursuing the White House cabal behind the violation of FISA's prohibitions on warrantless eavesdropping of American citizens, but instead those who revealed it. Tamm, whose life has been turned upside-down since the FBI raided his home in August 2007, will likely be subpoenaed to testify what he knows about James Risen and Eric Lichtblau, the Times reporters who broke the story in December 2005.
That's the message in a letter sent to Tamm's attorney Paul Kemp by Steve Tyrrell of the DOJ's fraud section. As Greenwald described it:
The letter begins by announcing that the DOJ and FBI are "presently investigating the unauthorized disclosure of classified information regarding the Presidentially-authorized NSA program…(hereinafter, 'The Terrorist Surveillance Program')." It then references the Newsweek article and "ask[s] whether [Tamm] is willing to reconsider his prior refusal to speak with agents of the FBI and/or to testify before the Grand Jury regarding his knowledge of and/or participation in the disclosure of TSP-related information to [James] Risen, Mr. Lichtblau and others." It demands an answer from Tamm by January 9 -- 11 days before Obama is to be inaugurated -- and then threateningly warns: "if I do not hear from you by that date, I will assume that Mr. Tamm is not interested in submitting to a voluntary interview or testifying before the Grand Jury": an obvious threat that he may be subpoenaed and compelled to do so.
The implication - that Lichtblau and Risen are in the Justice Department's crosshairs - would represent a conservative dream come true. As I first wrote back in August 2007, many in the Bush administration and its amen corner have been clamoring for the prosecution of the New York Times ever since the President's lawbreaking came to light.
After the revelations about the NSA program by the New York Times on December 16, 2005, President Bush three days later raged about what he deemed "a shameful act" that is "helping the enemy". Claiming he didn't order an investigation, Bush added "the Justice Department, I presume, will proceed forward with a full investigation" At a subsequent press conference that same day, Attorney General Alberto Gonzales suggested the retribution that was to come:
"As to whether or not there will be a leak investigation, as the President indicated, this is really hurting national security, this has really hurt our country, and we are concerned that a very valuable tool has been compromised. As to whether or not there will be a leak investigation, we'll just have to wait and see."
Leading the charge in the right-wing echo chamber has been Gabriel Schoenfeld, editor of Commentary. On June 6, 2006, Schoenfeld appeared before the Senate Judiciary Committee to claim that the New York Times violated federal criminal statutes, if not the Espionage Act of 1917 by publishing its delayed story about NSA domestic surveillance. One month later on July 3, he laid out his case in the Weekly Standard, approvingly citing Gonzales' veiled threats towards the New York Times:
"There are some statutes on the books, which, if you read the language carefully, would seem to indicate that that is a possibility."
After news of the FBI's raid on Tamm's home in the summer of 2007, Schoenfeld again called for the scalps of Risen and Lichtblau:
"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."
Ultimately, the story of President Bush's illicit domestic spying is replete with ironies. Ever since it surfaced, the same mouthpieces on the right who vigorously defended Scooter Libby over the outing of covert CIA operative Valerie Plame as payback for husband Joe Wilson's criticism of Bush's bogus Iraq claims have called for the prosecution of Tamm and the New York Times alike. (In the interim, the Times' Risen was subpoenaed in February 2008 over his sources not for the NSA story, but regarding a chapter about the Iranian nuclear program in his subsequent book.) And with time running out on the lame-duck Bush administration, the decision to prosecute Thomas Tamm and the New York Times reporters will fall to Barack Obama.
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