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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 Agencys 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 Fitzgeralds 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 NSAs 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 Generals 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 Ashcrofts 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 Departments 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, its been reviewed by members of the United States Congress Its 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 countrys security -- and their own, as well.
Ed Koch is the former Mayor of New York City.
