Why is everybody in such a fuss over what to do about The New York Times’s exposure of the government’s secret anti-terrorist-financing program? Isn’t there a perfectly good precedent for how it should be handled, currently on display in the form of Patrick Fitzgerald’s CIA leak investigation?
If that precedent were followed, you’d see the following things:
• Democrats would loudly condemn whoever leaked details of classified information to the Times.
• Democrats would call for a special investigation into the whole thing. The New York Times would call for a special investigation, too. The administration would agree.
• A special prosecutor would be appointed. That prosecutor would go to every government official who had knowledge of the program and present them with a document by which they would waive any agreement of confidentiality covering conversations with any reporter about the secret program.
• The administration would make it clear to those government officials that they should sign the document. Of course, they would agree.
• The prosecutor would take the signed waivers and present them to the reporters who wrote the Times story.
“See these?” the prosecutor would say. “Your sources have waived confidentiality. You’ll be receiving a subpoena ordering you to testify about those sources.”
“And by the way, if you don’t testify, you’ll go to jail.”
• Prominent defenders of press freedom, like journalism professor Geneva Overholser, would argue that the general rule under which reporters refuse to reveal the identities of their confidential sources should be loosened in this matter because the leakers clearly had malign intent.
• Prominent opponents of the Bush administration would denounce the leak as “treason” and the leakers as “traitors.”
• Sympathetic commentators would denounce the reporters involved, calling them discredited shills.
• A multiyear grand-jury investigation would begin. The reporters would be called before the panel. They would identify their sources.
• One would refuse and be sent to jail. Ultimately, though, everyone would talk.
• Administration officials suspected of leaking would be called before the grand jury several times.
• Even though any defense lawyer would advise against such repeated grand-jury appearances — why subject one’s self to such jeopardy? — the officials would agree to testify.
• In the end, the prosecutor would find that he could not press charges under the laws governing leaks. Instead, he would spend years poring over testimony to determine whether anyone lied to him.
• The terrorist-financing leak investigation would continue past the 2008 elections.
Does that seem like a futile exercise? Of course it does.
But don’t worry. It won’t happen. Because, as we all know, there is not a snowball’s chance that Democrats will call for a special investigation of this leak. There is not a snowball’s chance that The New York Times will call for a special investigation of this leak. There is not a snowball’s chance that opponents of the Bush administration will denounce the leakers as traitors. And so on.
But there is no doubt the leak did real damage.
This week I talked to Thomas Kean, the former co-chairman of the Sept. 11 commission. The Treasury Department had asked Kean to call the Times in an effort to persuade Executive Editor Bill Keller to refrain from publishing the story. But first it briefed Kean on the terrorist-financing program. After the briefing, Kean told me, “I came away with the idea that this was a good program, one that was legal, one that was not violating anybody’s civil liberties … and something the U.S. government should be doing to make us safer.”
When Kean called Keller, he got a courteous reception, but not much more. “I just had a sense that they were leaning toward running the story,” Kean told me.
When I asked him whether exposure had hurt the program, Kean replied quickly. “It’s over,” he said. “Terrorists read the newspapers. Once the program became known, then obviously the terrorists were not going to use these methods anymore.”
So there you have it. A valuable program was compromised and real damage was done to the war on terrorism. And what have we heard from the people who so loudly demanded an independent investigation of the exposure of CIA employee Valerie Plame Wilson’s identity? Not much.
Has Sen. Charles Schumer (D-N.Y.) pressed the Justice Department for a special counsel?
Has the Times called for a vigorous leak investigation?
And where is the prominent Bush critic Joseph Wilson?
The reason you’re not seeing these people spring into action is that this case presents no opportunity for them to gain advantage in their various fights with the Bush administration.
Instead, it is a clear-cut matter in which the administration was doing the right thing, was doing it carefully, legally, prudently — only to have its work compromised by whoever leaked the story to the Times.
You might think that would disturb the administration’s critics as much as the CIA leak affair.
But you would be wrong.
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