Are troubled
times ahead for The New York Times? I believe so.
President
Bush warned the Times that publishing a story on the
National Security Agency’s domestic eavesdropping program
would do great harm to American security. After holding the story
for a year, the Times went ahead and published it anyway.
In the past
the President has not hesitated to go after those whom he has
charged with violating national security laws. When the media
demanded the administration find within its own circle those who
violated the law by unmasking the cover of CIA agent Valerie Plame,
special prosecutor Patrick Fitzgerald’s ensuing investigation
led to the indictment of Lewis “Scooter” Libby, chief
of staff to Vice President Dick Cheney, and the jailing of Times
reporter Judith Miller until she provided information to the grand
jury about her sources. This case unnerved many people who never
dreamed that the media itself would end up as a target of investigators.
Now it appears that the Times is in hot water again.
Over a year
ago, a Times reporter told his editors that the National
Security Agency -- whose responsibility it is to electronically
monitor security-related phone conversations -- was doing so without
the authorization of the Foreign Intelligence Surveillance Act
(FISA) court. This court was specifically created to review NSA
requests to surveil telephone calls and e-mails coming from overseas
or initiated in the U.S. where one of the participants is a person
known to the government to be affiliated with terrorism.
Ordinarily,
telephone taps of domestic calls are only permitted by regular
court order based on a showing of probable cause of criminal activity
sufficient to meet the requirements of the Fourth Amendment. However,
the NSA is subject to a more relaxed standard. It merely needs
to show the FISA court that one of the participants in an overseas
call is associated with terrorism.
Since the
NSA’s surveillance program commenced in October 2001, the
FISA court has denied surveillance authorization in few instances.
On December 27, 2005, the Times reported, “From
1995 to 2004, the court received 10,617 warrant applications,
according to figures compiled by the Federation of American Scientists.
It turned down only four, all in 2003 for unexplained reasons.”
Nevertheless, the administration has generally refrained from
seeking FISA court approvals. The administration has stated that
it believes, based on the advice of career lawyers in the Department
of Justice and Attorney General’s office, that the President
does not need a court order to direct the NSA to intercept overseas
calls since 9/11, after which Congress authorized war against
international terrorism.
Further,
the administration believes, notwithstanding the ease with which
court orders are granted and the fact that retroactive court orders
and 72 hours emergency surveillance without a court order are
permitted, that it has and should have the right to proceed in
these cases without a court order.
The administration
says it monitors the surveillance program carefully and reauthorizes
it every 45 days. On one occasion in March 2004, while Attorney
General John Ashcroft was in the hospital, the administration
was told by Ashcroft’s Deputy, James B. Comey, that he would
not recertify the program.
The Times
describes the situation as follows: “Officials with knowledge
of the events said that Mr. Ashcroft also appeared reluctant to
sign on to the continued use of the program, and that the Justice
Department’s concerns appear to have led in part to the
suspension of the program for several months. After a secret audit,
new protocols were put in place at the N.S.A. to better determine
how the agency established the targets of its eavesdropping operations,
officials have said.”
Comey has
since left the government and one of the FISA judges, James Robertson,
who apparently had some disagreements with the actions of the
FISA court, resigned from it in December 2005. On January 2, 2006,
the Times quoted President Bush as saying, “Not
only has it been reviewed by Justice Department officials, it’s
been reviewed by members of the United States Congress…It’s
a vital, necessary program.”
Now there
is a hue and cry that the President -- by authorizing taping without
court order in these cases -- has violated the law and should
be held accountable. He can traditionally be held accountable
by impeachment during his term, by declining to reelect him or
by pursuing him criminally after his term expires.
The ACLU
recently took a full-page ad in the Times showing two
pictures. The first is of President Nixon with the caption, “He
lied to the American people and broke the law.” The second
picture is of President Bush alongside the statement, “So
did he.” The words constituting the alleged lies of each
of the two presidents are set forth. There is no picture or description
relating to President Clinton who is not mentioned and no comment
concerning his impeachment trial and its outcome. In my judgment,
the ACLU -- by implicitly proposing impeachment -- has injured
its credibility as an institution that seeks to protect the security
of the citizens of this nation, particularly during wartime.
Many are
surely wondering what if anything will happen to the New York
Times for having made public the existence of a national
security program in a time of war, after the President personally
and expressly warned Times publisher, Arthur O. Sulzberger,
Jr. and Times Executive Editor, Bill Keller not to do so. The
two apparently accepted the request of the President and did not
publish the story for a year and then chose to make it public
in December 2005. The Times publisher and executive editor
must have given consideration to the consequences that might follow
the violation of secrecy laws covering the NSA program.
Millions
of Americans, myself included, would not want to have the Times,
its publisher, editors and reporters punished for breaching censorship
laws in a situation like this. I have no doubt that they believed
they were performing a noble public service in alerting the nation
to what they perceived to be a subversion of the constitution
by the President and his administration.
They decided
as many patriotic whistle-blowers have done before them to violate
the law as I expect in the future, some patriotic law enforcement
officers in a ticking bomb situation will use torture to locate
the bomb in order to save thousands of lives. But no one is above
the law. Not the President. Not anyone in his administration.
And not The New York Times. Those who violate the law
in such situations can hope for jury nullification, declination
of prosecution by law enforcement or presidential pardon. Yet
that is not enough. The Times or any potential whistle-blower
in a comparable situation should be able to bring the matter to
the FISA court for its consideration.
Presently
there would be no standing for such an individual or institution
and the court could not accept jurisdiction. In my view, Congress,
while considering all other aspects of this case, should provide
a proper means for such whistle-blowers to bring their complaints
to an appropriate forum without jeopardizing the country’s
security -- and their own, as well.
Ed
Koch is the former Mayor of New York City.
