Pajamas Media has a roundup of blog discussions, pro and con, on the subject of whether the President had the authority to conduct wiretaps, one end of which involves a US person, without a court order. However the legal arguments play out, a slightly different question already has a definite answer: the President does not, apparently, have the reliable ability to conduct surveillance of the enemy without the fact being revealed in the New York Times. Former intelligence officer Emily Francona points out that two possible instances of lawbreaking are being discussed, but one instance is more cut-and-dried than the other.
Whether the President acted under proper executive authority will undoubtedly be determined during hearings of the Senate Judiciary Committee. But he did follow requirements for legal review of his orders by consulting with the NSA Legal Counsel and the U.S. Attorney General. He also followed congressional oversight requirements by notifying the appropriate congressional committees in a timely manner. And it is customary for more sensitive activities to be briefed only to a limited number of senior oversight committee members to avoid leaks of classified national security information. ...
The most serious legal problems are posed by those who leaked this highly classified national security information to the media, an unauthorized recipient of any classified information. Any NSA or intelligence community official concerned over an intelligence activity has an internal oversight system available to address these concerns in a legal and classified environment: NSA's internal Inspector General and/or the Intelligence Community's Inspector General.
Johnathan Alter writes in MSNBC that the New York Times knew about this "highly classified national security" operation for a year, and decided, despite appeals from the President, that they had a duty to make it public.
I learned this week that on December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting, but one can only imagine the president’s desperation. ... Bush was desperate to keep the Times from running this important story—which the paper had already inexplicably held for a year—because he knew that it would reveal him as a law-breaker.
Orin Kerr at the Volokh Conspiracy thinks that President Bush's actions were illegal, but feels it is not a slam-dunk case. Hugh Hewitt believes the President was within his rights. But whatever the legalities of the wiretapping, the fate of this particular operation was effectively decided -- not by the New York Times, it's fair to say -- but by whoever took it upon himself to leak it to them. The judgment on the wiretap's operational security had been handed down, as effectively as a unanimous decision from the Supreme Court. If your life had to depend on this operation's secrecy, then kiss your a... goodbye. President Bush had futilely lamented an earlier leak.
"In the late 1990s, our government was following Osama bin Laden because he was using a certain type of telephone. And then the fact that we were following Osama bin Laden because he was using a certain type of telephone made it into the press as the result of a leak," he said.
Once upon a time signals intelligence was considered so important that considerable efforts were taken to prevent its compromise. Captain John Philip Cromwell, who was privy to the secrets of signals intelligence, elected to go down with the USS Sculpin rather than risk capture by the Japanese and reveal his knowledge under torture. Cromwell agonized over a problem the NYT editorial board might have found easier to resolve.
The destroyer quickly destroyed the bridge, killing Connaway, the XO (LT Nelson Allen), and the gunnery officer (LT Joseph De Frees – son of Rear Admiral De Frees). LT G. E. Brown, another reservist, was now the senior officer assigned to the submarine and quickly took command. He chose to scuttle the boat and gave the order, "abandon ship." The crew struggled into life jackets as the Chief of the Boat opened the vents. Captain Cromwell, division commander with only 13 days at sea on his first war patrol, was faced with a predicament. He could abandon ship and face the possibility of severe torture in a Japanese prison camp or go down with the ship. Knowing full well the possibility of the enemy gaining information about Operation Galvanic and the secrets of Ultra during torture, Cromwell chose to take the secret information to the bottom. He told LT Brown that he "knew too much" and would stay onboard. Ensign Fielder, perhaps feeling responsible, made the same decision. These two brave men – and ten others – rode the ship down for the last time. ...
When Admiral Lockwood learned of Sculpin and Captain Crowmell’s fate, he recommended Cromwell for the Medal of Honor. It was approved and awarded to his widow after the war. Admiral Lockwood went on to say, "Captain Cromwell's selfless act of personal sacrifice represents what our submarine force is all about. It stands for dedication, courage and honor in the face of adversity." "John Cromwell is a true American hero," he added.
No one is above the law and the President's actions will be judged in the manner provided. But it's also important to ask -- and the answer is of more than academic interest -- when and to what extent an individual or corporation can divulge a secret military operation on the basis of a self-appointed duty. The mantle of secrecy is not absolute and few would argue that German officers with a knowledge of the Holocaust should keep it quiet out of a regard for operational security. But the wiretapping case, as Orin Kerr points out, is much more marginal. Two factors are probably relevant in making that determination. The first is competence. To what extent is an individual whistleblower or organization like the New York Times competent to judge what operations of war should or should not remain secret? The second is responsibility. Assuming that an individual or news organization were qualified to weigh operational security requirements against their duty to inform, who takes responsibility for any deaths or injury that may result? It will be argued that Scooter Libby cannot dismiss these questions as irrelevant. Why should they be irrelevant to the leakers in this instance?