12/30/05: NPR: "Justice Department Confirms Hunt for Spy-Story Source"

Interviewer:   Robert Siegel

Robert Siegel:  The Justice Department has opened an investigation into a leak of information about domestic surveillance by the NSA.  Two weeks ago, a story in the New York Times [available here through Times Select]  revealed that the NSA has been spying on American citizens within the US without warrants for four years.  Now the Justice Department is not conducting an investigation into that spying, but rather it's looking into who might have leaked that story to the Times.  NPR's David Folkenflik is with us right now and, first off David, has there been any question about the accuracy of that Times story?

David Folkenflik:  None whatsoever.  Obviously the President, the Administration, is quite heated about the fact that it got into print, but there's been no challenge of the facts and some legal scholars and some former government officials say it's pretty clear that a 1978 law against domestic wire-tapping without warrants has been broken.

RS:  So the question the Justice Department is looking into is all about how that information was made public?

DF:  That's right.  This is a pretty classic clash between values -- the values of protecting national security and asserting government authority to do what is necessary and the question of the public's right to know -- the media watchdog role being fulfilled.

RS:  How do we know, if in fact, that national security has been endangered?

DF:  Well, we don't.  President Bush has asserted that it has but he hasn't publicly made that case.  In fact, he did do so privately to the publisher and the executive editor of the Times and they held the story for over a year and pursued additional reporting.  They held some information, but they decided to publish. 

RS:  So, if Justice is investigating who leaked this information to the Times, are they investigating people in the Administration, in Congress?  Or are they investigating the Times?

DF:  Well, it appears that they are most likely to be investigating the act of the leakers -- that is, current and former federal officials leaking classified information.  But one clear way to do that, as we know, is to do that through reporters who know who they spoke to.

RS:  Of course what's compelling here is that the Times just went through quite a dramatic event with the jailing of the reporter, Judith Miller, when she wouldn't reveal her sources.  Obviously they probably can't be eager for another confrontation of that sort.

DF:  I don't think they want it at all.  A spokeswoman for the Times said the newspaper wouldn't be commenting on this at this time, but nonetheless, Special Prosecutor Patrick Fitzgerald in that CIA leak case was able to get everything he wanted from every reporter involved.  It's not clear that there's much wiggle room here for the press.

RS:  Let me ask you this.  In the story disclosing the name of Valerie Plame Wilson, there was always a very small universe, it seemed, of potential leakers.  In the Times story about NSA surveillance of Americans, there was broad attribution to many people. 

DF:  I thought it was very interesting.  They referred to nearly a dozen government officials which would take in a number of branches of government.  Could be judges who learned of it and were upset.  Could be people on the Hill, people in the Administration.  They did say it was a very small circle of people who knew, just a handful of Congressional figures, a very few Cabinet officials, a few senior people at NSA, CIA and Justice.  So I imagine that would be the universe of candidates. 

RS:  What does it mean that Justice is looking into this?  We don't have a special prosecutor named, a special counsel or anything of that sort.  Are they interviewing people?  Do we know what they're doing yet?

DF:  We don't know what's going on.  Presumably people will be subpoenaed if you take past investigations as a guide.  People will check call logs and emails -- what phone conversations occurred -- and see if they can construct a case that James Risen and Eric Lichtblau, the two reporters who wrote the Times story, had contacts with these government officials.  But it's not yet known.

RS:  Is there any talk about an investigation?  Not just into the leak, but into the program of surveillance?

DF:  Well, Senator Arlen Specter -- he's a Republican from Pennsylvania and Chairman of the Senate Judiciary Committee -- said he does want to have oversight hearings on that very issue.  It hasn't been scheduled yet.  He's not exactly getting the vocal support of Republican leaders on the Hill.  And the Administration itself has shown absolutely no eagerness to investigate unless they say any more information that gets into the public will imperil the ability to protect the public.