A Shot Across the Bow

The big news on the Sunday talk shows this week came from Attorney General Alberto Gonzalez. Appearing on ABC's "This Week," Mr. Gonzalez opined that journalists can be prosecuted for publishing classified information.

Citing an obligation to protect national security, the Attorney General also stated that the government "would not hesitate" to track phone calls made by reporters as part of a criminal leak investigation. However, Gonzalez said federal officials would not mointor reporters' phone calls on a "routine" or random basis.

In the interview, Gonzalez refused to speculate whether The New York Times should be prosecuted for publishing stories on a previously-undisclosed NSA surveillance program, which tracks suspected terrorist communications between locations in the United States and overseas. The Attorney General also indicated that the government would not randomly check journalists' phone records, in an effort to identify illegal leakers.

Mr. Gonzalez's comments suggest that criminal probes into intelligence leaks (and government personnel who provide that information) is well advanced. You'll note that the AG said that we don't engage "domestic-to-domestic" surveillance without a court order." That tends to reinforce previous speculation--in this blog and other forums--that the current dust-up over media phone records is not a product of the recently-disclosed, NSA data-mining operation, but rather, an indication of on-going criminal investigations.

As we reported previously, the pattern for this sort of probe is well-established. When classified information is leaked to the media, the "originating" agency refers the matter to the Justice Department for investigation. At that point, the agency and the FBI begin a formal inquiry, in an effort to identify the leakers and determine what laws (if any) have been broken. Over a 10-year period, beginning in the mid-1990s, there were more than 600 such referrals from our intelligence agencies to the Justice Department. During that time, there were no major prosecutions (and, as far as I can tell) no dismissals of offending employees.

All that changed when the Bush Administration decided to go after leakers in a serious way, using all the tools at its disposal. Reading between the lines, it appears as though the leak investigation(s) are well-advanced, with federal agents and prosecutors having identified both the culprits and their clients in the press. At this point, many of the dots appear to have been connected; the next step is to build a case against the offending intelligence officers and their friends in the MSM. That reality may be a reason that a government source warned ABC's Brian Ross to "get new cell phones" a couple of weeks ago. Assuming that the feds have obtained a warrant, there is a strong probability that authorities are already wading through mountains of phone records and (possibly) monitoring conversations--gathering evidence that can be presented to a federal grand jury.

Mac Ranger summed it up best: this is going to be a very interesting summer in media and intelligence circles, and the "pucker factor" is extremely high in certain elements of the intel community. Reporters will howl (and there will be a major court battle), but I believe that AG Gonzalez is right: the First Amendment does not guarantee the right to publish all forms of classified information that can jeopardize national security when it enters the public realm. In that sense, Mr. Gonzalez's comments on ABC were a final shot across the bow for the MSM. The next salvo will be fired "for effect," in the form of subpoenas and indictments.