American Enterprise Institute

September 7, 2006

[Edited transcript from audio tapes]

10:45 a.m.	Registration
11:00	Panelists:	Michael Isikoff, Newsweek
		Andrew C. McCarthy, Foundation for Defense of Democracies
		Stuart Taylor Jr., National Journal
		R. James Woolsey, former CIA director
	Moderator:	Michael A. Ledeen
12:30 p.m.	Adjournment

Proceedings:

[Note:  It seems that there was one defective microphone, and so there are a few comments/words that could not be heard clearly, hence the “indiscernible” notations.]

Michael A. Ledeen:  Happy Thursday.  We are going to start in about two minutes.  Jim Woolsey is here but is attending to more important matters for the moment.  He will be in the room in about two minutes, and then we will start.  The drill will be - Michael Isikoff is, of course, selling books, and so he is doing talk radio until six minutes to 11 when he promised to leap into his limousine and come right here. 

The plan is we will do short rounds of the panelists.  I have asked each of them to speak for five or 10 minutes.  Then we will do another round of the same four people and, maybe, me as well if I find enough something to say about what they said.  And then it will be your turn.  We will have an open conversation till about 12:30, or even later if you do not get hungry because we are not feeding anybody here.  There is a bigger conference of which people will be fed this morning. 

Okay, the sermon for today is “National Security and Freedom of the Press.”  And I want to try to stipulate a couple of ideas before we start because, unlike most debates on this subject which are heated and frantic and very partisan and so forth, I have tried very hard to bring here four people who are sensible, reasonable and have actually given some thought to this matter, rather than responding to it from a corporate perspective, which is what usually happens. 

So just for purposes of starting the discussion, I think it is fair to say that any sensible person who has worked on either side of this issue, either in government or in journalism, agrees that there are some things, some facts that should not be published.  There are things that would be so dangerous to the national interest that no sensible person would want them to appear in the popular press or anywhere in print for that matter.  That is not really the discussion.  The discussion is once we get past that - it seems to me intuitively obvious [indiscernible] - the real questions start. 

My interest is to try to get at the real questions today, and they run something like this:  Okay, these subjects exist.  First of all, is it possible in advance to describe them in any sensible way?  Or should we say, “Well, sensible people will recognize them when they come up?”  If we can describe them in advance, who will describe them?  And if we get agreement on at least some subjects and some kinds of things that should not be published, what happens when and if they are published, because we all know that in the current environment there will be people who think they are entitled to publish anything?  Who then defines the rules, and who enforces the rules, and how do they get enforced?  And who will decide, A) is this a violation?  And if so, B) what is supposed to be done to the violator? 

These are the kinds of questions that I’m looking at and that I want us to address today in the interest of trying to advance what seems to me to be one of the most urgent subjects facing the country.  And I have asked our panelists whom you know.  Stuart Taylor from National Journal, who has written some of the very best things on press and on stories and has been involved in stories where sensitive information comes up and when you have to do better. 

Andy McCarthy, who nowadays is a celebrated writer and blogger, but whose fame first came because he was on the other side.  He was a government prosecutor.  He was involved in prosecuting terrorists after the first World Trade Center attack.  He was the person who sent [indiscernible] to jail along with several of his cohorts. 

Jim Woolsey, what can we say about Jim Woolsey?  The closest thing we have to a true renaissance man in Washington nowadays.  He has been almost everything.  He has been a great attorney, he is a great writer, he was director of Central Intelligence.  He knows the subject, too, primarily, I would guess, from the government side.  But since he was an attorney for a while, inevitably he had to worry about questions of either real or potential clients being attacked by people for publishing things that other people thought they should have not published and so forth. 

Michael Isikoff, who has been at the center of the storm and who I promised, and I will now fulfill my promise, is now the co-author of and about-to-be best-selling book called Hubris, he and David Corn.  So if you have a copy of Hubris I’m sure Michael would be pleased to sign it, or you can get a promise from Michael that he will sign it as soon as you buy it shortly. 

So with that said, I think I’ll just go from right to left on the panel.  I’ll ask Andy to start first, Stuart second and Jim third.  Please do not interrupt the first two rounds because you will have full access once these two rounds are over.  So, Andy?

 Andrew C. McCarthy:  Good morning.  I should start by noting that Michael mentioned that I had gone over to the other side.  That used to be, at least when I was in the Justice Department, what prosecutors said about defense lawyers who started to wear the black hat, as we used to say.  But I guess it was the other side in some sense.  I want to try to talk about this subject in terms of the way I think the government generally looks at it, prosecutors generally look at it. 

I think in answer to the first issue that Michael threw out, the standards are actually out there.  They are not things that we need to cobble together.  They are the statutes that we are talking about here, and mainly it is the Espionage Act and the statutes related to that, like the one that specifically relates to signals intelligence, statutes that deal with the atomic energy information, statute that deals with the identities of covert agents.  Those statutes are on the book.  Some of them have been challenged on vagueness and over-breadth grounds.  There is not a lot of law on them, but there is enough law on them that I think that they have a gloss, such that we know reasonably the ambit of what it is that we are talking about when we are talking about government information and, particularly, recently I think the narrow question of national defense information. 

The other thing I think is important to note, because this has really been lost in the debate over Judy Miller, the Plame investigation in general, the Washington Post stories, The New York Times stories, et cetera.  You would think from the coverage that we are talking about a monumental number of cases and a monumental problem.  I would argue that we are talking about an infinitesimally small number of matters, very, very small.  And because what has been presented I think has been misrepresented as representing a much bigger problem in the dynamic between reporters and the government, there are sensible ways to divide out this problem and sensible ways to divide up the types of cases that we are dealing, which have been overlooked. 

I would argue and I have argued that when reporters and the government confront each other in connection with matters of mutual interest, we are actually talking about three different fact scenarios.  Really, you have not heard these get broken down in the media, but I think they are absolutely essential to figure out which category the factual scenario you are dealing with fits in.  I think that really governs how it should be handled and how it should be looked at. 

In the first category, which I think covers about 99-plus percent of the cases, what you have are reporters doing their ordinary work and investigators doing their ordinary work.  Almost never does the government impede, interfere with, or harass members of the press who are going about their business.  Generally speaking, we are talking about the situation where the reporter does normal reporting work, which is to say the reporter, just like a criminal investigator but without the same tools as a criminal investigator, goes out and collects information, hearsay information, about whatever situation it is that is the subject of the investigation, whether it is a crime or another matter of public interest.  In those scenarios, the vast, vast majority of what we are talking about, reporters are almost never bothered and the government has internal regulations that severely discourage prosecutors and agents from turning to reporters to get information.  And I think it is important to note that is how the real world works most of the time. 

Then you have a second category, and I would put the Plame investigation into that category.  That is when the reporter is a witness to a crime but has no criminal complicity.  The situation, which, if you think about it, is no different than if the reporter happened to be standing on line in a bank when the bank got robbed.  Under those circumstances where the reporter is a witness to the crime, the reporter has an obligation that is equal to any other American to report the evidence that he or she possesses to government investigations, to grand juries, et cetera. 

In this situation, and I think the way Fitzgerald handled the Plame situation, I should say, in the interest of full disclosure, Pat Fitzgerald is an old friend of mine.  We prosecuted some terrorism cases together, so take that with whatever grain of salt you will.  But in the situation we are talking about where the reporters have no culpability, the practice, generally speaking, is to turn to every conceivable other avenue of information before turning to the reporters, but with the understanding that the reporter does not have any more right under the Constitution or any other law to withhold evidence of a crime that he or she has directly witnessed from a public investigation. 

The rule about delaying to get the information from the reporter until all the other avenues have been exhausted is a prudential rule.  It is a rule that is followed basically out of deference to the obvious First Amendment concerns, with government seeking to compel information from the media, given what the media’s obvious role is in a democratic society.  But it should be stressed that it is a prudential rule, it is not a constitutional rule.  The reporter who is in the position of having witnessed an event that is of interest to an investigation has no more right to withhold that information from the government than anyone else does. 

The third situation, and the most unusual situation, is the one where the reporter not only has been a witness to a crime but, potentially, has criminal liability.  And here, I would suggest a good example of this would be the NSA leak by The New York Times.  I should stipulate here I do not know all the facts of the cases.  I’m laying this out as a hypothetical, but I do think that the NSA situation of all the leaks of classified information that we have had in the last 12 to 18 months presents the clearest case of a possibility of a publication and its reporters subjecting themselves to criminal liability by putting that information, which is national security information, not because the NSA program was more important than some of the other leaks. 

I think some of the other leaks are at least equally important, but because there is a statute, Section 798 of Title 18, which is more a perfect fit to a situation where there has been a leak of signals intelligence than some of the other leaks that we have seen, which have to really be shoe-horned into another applicable statute, which is 793, the Espionage Act, in which it has to go on to the sort of general rubric of national defense information, which a person has reason to know could be used either toward the injury of the United States for the benefit of another country.  Seven-ninety-eight and the NSA program are cleaner case because the statute is clean, not because the facts are anymore obscure. 

Two rules of thumb, I think, with this third category.  The first is on the circumstances where the reporter and the publication actually have potential criminal exposure.  There is certainly no prudential rule and there is no good reason to be more hesitant with the media than there would be with anyone else who has criminal liability.  I think in these cases the government has followed the prudential rule to the point of actually not interviewing anyone at all, at least in some of these cases. 

I think that is foolish myself.  I think that where there is potential liability, the publications and the reporters ought to be treated as witnesses in an investigation, particularly if it is an important national security leak, certainly if it is a war-time intelligence program in a war that is singularly about intelligence.  Hesitation in turning to the media to get information in that context, I think, is not prudent at all.  So that is one thing. 

The final thing I’ll say is that the normal rules of how prosecutors go about cases, what to apply, which is to say that in every criminal investigation you line up who you think are the most culpable actors once you think that you have a handle on what the reasonable parameters of the facts are.  In this type of situation, the leak of classified information that ultimately gets published, the most culpable players in that are the government officials who leaked the information. 

I think the media enablers, the media people who put it out into the public domain, particularly in the types of egregious situations we have seen in the last year, are culpable players, and their conduct is sometimes reprehensible.  But the main actors, the main problem players here are the government officials who do the leaking.  And pursuing them does not implicate the same First Amendment concerns, obviously, that pursuing the press players do.  So I do think that it would be prudent in these cases to at least go to the media people in the first instance not in a prosecutor frame of mind, but actually in the frame of mind of you are trying to get somebody to cooperate, you are trying to get somebody to be a witness. 

The specter of prosecution in the third category, I think, ought to be something that hangs over the equation much as it does in other criminal investigative circumstances as a wedge or a hammer to try to get somebody to cooperate to [indiscernible] the prosecution.  But the goal ought to be to get the information from the media person and the main targets of the investigation I think ought to be the government officials who do the leaking.

 Stuart Taylor:  I’ll speak from here on the ground that podiums are part of the vast conspiracy to dramatize the shortness of short guys.  I agree with much of what Andrew said, particularly on the law, and disagree with some of it, but not, perhaps, that much.  And I should emphasize that although I’m the only member of the media here at the moment - I hope my friend Michael shows up - I’m not really speaking for the media and at least as much a critic as the media as of the government in this instance, so take it for what it is worth. 

I agree that as a matter of law, reporters are going to have a hard time fighting subpoenas on matters like this after the decisions in the Fitzgerald investigation.  And also that especially after this recent decision in the Rosen and Weiseman [phonetic] case by Judge Tim Ellis, a friend of mine, reporters are in danger of being actually criminally prosecuted and put in prison for disclosures, such as the NSA disclosure.  I think that is very dangerous, and I hope Congress will do something about it or the Supreme Court will do something about it if the occasion arises because not only could reporters …

Let us segue to the Plame leak.  Although it is now the new conventional wisdom that Richard Armitage has leaked in, and it was not malicious, and it was a mistake, and therefore it is all much ado about nothing, I believe that under the Ellis decision and the government’s theory of the espionage statute, Carl Rove and Scooter Libby could both be prosecuted for espionage by, say, the next Democratic administration. 

If the classified information could be used to hurt the national security, the only real issue legally under the government’s theory is, well, did they know it was classified information?  Were they the primary leakers?  No, it does not matter.  As a matter of law, they are prosecutable, I believe.  And by the way, they are much more easily prosecutable than a reporter would be or an APAC [sounds like] lobbyist because they are government employees who have vowed an oath not to give over this sort of thing. 

I think there probably ought to be a qualified journalistic privilege, just as we have attorney-client privilege.  Licensed social workers have a privilege under federal common law as recognized by the Supreme Court.  I think there is a certain logic that at least as a qualified matter, at least if it is not absolute, there is enough value in journalists learning things that are deemed secret by the government, from government sources, deserve some protection if we want to know what the government is up to. 

It has been widely said and correctly, I think, that there are hundreds of conversations in Washington D.C. everyday.  Most of them are quite innocuous between reporters and sources, between lobbyists and others, between reporters and lobbyists, between government employees and others that could be styled as violations of the Espionage Act under the theory the Bush administration has adopted and that Judge Ellis accepted. 

That said, I’m not one of those who think that the press has been handling itself well in all these matters.  I think there is a problem sometimes of almost indifference among some of the media.  I’m not pointing fingers at anybody whose name I’m not about to mention on this.  And let me give you an example.  I’m reading from a column I wrote in October 2001.  And I’m referring to my friend EJ Dion’s view that, and I’m quoting, “No reporter I know wants to be responsible for blowing the cover of individuals on military operations.” 

And I go on to write, “Perhaps he does not know Loren Jenkins, Senior Foreign Editor of National Public Radio, who explained his ethical principles to the Chicago Tribune.”  And I’m quoting Mr. Jenkins:  Asked whether his team of reporters in Afghanistan, I believe, would report the presence of an American commando unit found in, say, a Northern Pakistan village, Jenkins does not exhibit any of the hesitation of some of his news business colleagues, who stress that they try to factor security issues into their coverage decision.  “You report it,” Jenkins says.  “I do not represent the government.  I represent history, information, what happened.” 

I hope that most of my colleagues in the media do not have that approach.  But if you look at some of the celebrated stories, I sort of see it as a cost-benefit balance.  And while I agree with Andrew that the NSA leak by The New York Times in December is legally vulnerable because of the particular statute dealing with signals intelligence, I think it is a pretty clear example of a leak that, I think, is a publication that, I think, is justifiable.  It certainly should not be subjected to criminal liability.  A number of serious judges - including at least one, Gerard Lynch, who is a serious judge, unlike, say, Judge Taylor, who wrote a ridiculous opinion on the legality of the NSA eavesdropping program - have seriously questioned, as have many others, whether the President has committed a crime or an impeachable offense via that program. 

That is a highly debatable issue.  I’m not on the hard-line side of either side of that, but for the idea that the President can commit what is clearly a violation of statutory law fairly clearly, and then keep it secret by threatening the media with prosecution under the Espionage Act if they disclose it strikes me as outrageous. 

It also strikes me as highly doubtful that this particular publication or leak did a lot of damage to national security.  It was no secret to Al-Qaeda that we were eavesdropping on them every which way we can.  It was no secret to them that one way we can do it is with a federal court order.  It was no secret that it is pretty easy to get such a federal court order to eavesdrop on suspect [indiscernible] who may be an Al-Qaeda guy.  So what did The New York Times add to the mix of what Al-Qaeda knew?  Well, they added that, maybe, you could do it… that you could do what they are doing it without a court order, too.  There I think the balance comes down strongly in favor what The New York Times did. 

I’m not so sure in the case of the story they wrote more recently about the financial surveillance program.  Here is a case where there is no question at all about the legality of the program.  Clearly legal.  And there is not a whole lot of question about whether it had been done carefully and with some respect for civil liberties.  From everything I have read it had done that.  It was a useful program, clearly. 

And so what is the great public benefit in knowing the details of it, which is what The New York Times told us on the front page?  I do not think there is very much.  There is some, but I also think, even if there is potential damage, is it huge?  Maybe not.  I talked to a close friend who I think of as an honest broker on this, who knows that program deeply, was involved in it.  I said, “What about this disclosing?”  He said, “Well, it does not outrage me.  But does it do harm?  Sure it does harm.  Al-Qaeda did not know.  They knew that we were looking on this area.  They did not know where we were looking, how we were looking, when we were looking.  This gives them potentially useful information to - and what good does it do?  Not very much that I think.” 

I had a somewhat similar reaction, and I may be wrong about the Washington Post Pulitzer Prize-winning story disclosing, among others things, that secret CIA prisons that were not so secret except for the location - I do not think anybody thought Khalid Sheik Muhammad was in Leavenworth - that there were some in Eastern Europe and there was a negotiation [sounds like] back and forth between the government, and the Washington Post left out what countries they were in Eastern Europe at the government’s request, but still what purpose was served? 

What did the American reader learn of value from the fact that, okay, they are in Eastern Europe?  Not a whole a lot I would say.  The effect of that disclosure was, I submit, to put a lot of pressure on governments in Eastern Europe to kick us out.  And, in fact, there was a lot of pressure.  I’m not sure that if I had been an editor of The Washington Post I would not have seen the balance of justification, non-justification as coming out the other way. 

The law of all this, as Andrew indicated, is complicated and interesting.  I think it would be particularly interesting to talk about how the espionage statute might be interpreted if the President and the Attorney General make good on their threat to prosecute The New York Times.  I’m afraid it could be interpreted in a way that would be a lot harsher to The New York Times than I would like.  And if anyone wants to pursue that later we can talk about it.  Thanks.

 R. James Woolsey:  I’m going to come up here or not because I’m either tall or short.  I’m kind of in-between, but because I find it pretty warm in here and I thought I might catch more of a breeze standing up than sitting down.  My personal experience with respect to the press and security was good.  On only two occasions when I was director of Central Intelligence did we know in advance because of questions that reporters were asking that they had access to an important fact that could have betrayed a source or method. 

In each case, I went to the media executive that was involved.  One case, I took an expert with me when I went along and disclosed classified information to the media executive, one-on-one, in his office.  I explained to him in a bit of detail why what they were about to print was a problem.  In each case, there was a fact that was not really essential to the story that the executive agreed to omit.  Omitting that fact basically solved our problem, although we were not happy with the rest of the story. 

So my personal experience is one in which the media in those two cases, the only two that I was personally involved in, behaved, in my judgment, in a responsible fashion, both as a citizen corporation of the United States, citizens of the United States, and as vigorous media in a free country.  I do think, since this issue comes up a lot, in covering national security matters and not only intelligence ones, there ought to be some set of criteria by which a media executive can make a decision as to whether or not to hold a story or to hold a part of a story. 

And I have taken a stab at several to answer the question, should we publish?  The obvious default position being to publish, so in a way I guess you could say these are questions to ask about whether one should not publish.  First of all, would an intelligence source or method reasonably clearly be betrayed?  Here I take a little different stance from Stuart.  I do not think you should put yourself in the shoes of the foreign government or terrorist group and say, “Well, they know everything that is out there in the public media, and they assume we are listening to them all the time, and so on.”  As one of the ads on television recently points out, people do stupid stuff, and anyone who has ever been in law enforcement knows that it is criminal stupidity that often catches them up. 

Probably the most famous battle of annihilation in history, Cannae, won by Hannibal against Terentius Varro was because the Romans changed military commanders everyday as a check and balance on their authority within the executive system.  He waited until he had a stupid commander and then defeated him.  People do stupid stuff, and I think the last thing you want media executives doing is saying, as somebody did in 1998, “Well, Bin Laden probably knows we are listening in on his satellite phones so let us put it here on the front page or on our broadcast that we are listening in on Bin Laden’s satellite telephone.” 

Well, maybe somewhere somebody did, but maybe he thought that one was okay.  In any case, that was a bad decision that those media executives made in 1998.  So I think that one should not get too far into the business as saying, “Nah, everybody knows it, and nobody is going to be sloppy.”  Both terrorists and criminals and foreign governments are sloppy a lot. 

Second is the behavior by the United States in collecting the intelligence or undertaking the matter that is being disclosed, arguably illegal and unconstitutional.  I think that is an element, as Stuart suggests. 

Thirdly, is there some abuse involved, arguably?  In none of the cases I have seen of the material that has been published in the last year or so, about NSA, Swift, et cetera, is that particularly alleged, that people often compare to Watergate.  But Watergate, remember, was a burglary in the Democratic National Committee.  I have not heard any allegations that we were using NSA or Swift transfers to run political operations and so forth.  But if there is abuse for personal gain or for political gain, obviously that could be or should be a factor, I think, in a media executive’s decision making.  Is it an area where people have an expectation of privacy?  It is another reason I would agree with Stuart on the non-wisdom of publishing a Swift transfer information. 

Most of us, we transfer money internationally.  We do not have any great expectation that it is going to be done privately.  If we are not entirely sure who does it, it goes through some bank system and some set of communications.  But that it would be done privately is not an expectation most people, I think, in the business or commercial world have.  If any of the above criteria, and that is there is some kind of oversight, congressional or otherwise.  Yet another reason to perhaps publish is if you are convinced there is no check and balance on what the executive is doing. 

Now, I think, for example, the Swift transfer story fails - and I agree with Stuart on this on all these grounds - it could well have damaged some source or method because we need in place a meticulous systematic and thorough way to check international transfers.  Certainly there is the [indiscernible] system and other ways of transferring funds that terrorists use to get around us, but sometimes people may do this and they only need it once or twice to happen in a circumstance in which it leads you to something for it to be useful. 

There was absolutely nothing illegal about the Swift transfer system monitoring.  Even consent had been obtained.  It was clear from the story from the people whose consent was needed.  There was no allegation of abuse.  There was no reasonable expectation of privacy.  I do not recall whether there was congressional oversight, set up a briefing of the Gang of Eight or whatever, but it would have been easy to do.  So I come out that according to these at least limited criteria that set out, there is no reasonable argument that that story should have been published. 

A second question, I think, that presents itself is once a story is out on the government side, should one prosecute?  And here these above tests are relevant, but there is one thing that I think is particularly important.  It can occur that an individual intelligence source - an agent - is blown by a fact coming out.  Eli Cohen, the famous Mossad agent in Syria many years ago, had his cover blown and was executed by the Syrians because someone in the intelligence service talked to the press in Israel.  The talking occurred, and the story ran within about two or three days of the time the conversation had occurred in Syria.  So Syrian intelligence knew that it had to be one of about seven or eight people. 

Had the story run a month later, it probably would not have been a problem.  But it knew it was one of a limited number of people, tortured each one, finally found out who it was and executed the Israeli.  So sometimes you will not know, if you are an executive in the media or a reporter, what about something like that, like timing, will affect.  But the important thing is that, on the whole, individual agent operations by case officers doing brush passes and dead drops and so forth, those are pretty hard for the press to get into.  And I, my own judgment would be that although agents have been blown and people have been killed by press reports, it is a relatively rare occurrence. 

Signals intelligence is a different thing.  One of the reasons there is a separate statute for signals intelligence is because it is so vulnerable to something like the disclosure in ’98, the Bin Laden satellite telephone was being listened in on.  It was a shrewd decision not to prosecute by the Roosevelt Justice Department in ’42 when the Chicago Tribune put on its front page that we were breaking Japanese naval codes because it did not call attention to it, and, stupidly, the Japanese did not notice the Chicago Tribune story.  Or if they did, they did not believe it.  But that one story could have changed the outcome of World War II in the Pacific.  We relied very heavily on code-breaking in the Pacific War just as we relied in Europe on the British-code breaking in Germany, so a single disclosure on signals intelligence can wreak extraordinary havoc. 

My own judgment is different from Stuart’s on this second case, on the NSA case.  I would say whether or not one should prosecute the reporters, the press or not, but I find it a much, much more serious leak.  I think it could well have been very damaging to sources or methods.  I think there was no reasonable argument that it was unconstitutional, although people may argue it was illegal under… the press [indiscernible] actions are illegal under the statute. 

My own view is that communications between Al-Qaeda operatives and Americans are battlefield communications.  It is not our fault that in this war, unlike Vietnam and Korea, the battlefield is in New York, Washington, and the field in Pennsylvania, as well as the rest of the country.  Presidents have been intercepting communications from enemy intelligence and other officers to Americans, including inside the United States, for well over two centuries. 

George Washington’s intelligence operatives intercepted Major Andre, the British Major’s communication, that ended up leading to the capture of our most famous spy, whose name, Benedict Arnold, is given to treason, by definition.  We intercepted telegraphs of the Confederates during, of course, [indiscernible] of the Yankees during the Civil War.  These are communications of the sort, as far as I’m concerned, the presidents have been intercepting for a long time.  It is not like seizing a steel mill, which Harry Truman struck out in a new area on. 

I would say further that trying to navigate how to seize Khalid Sheikh Muhammad in his computer, find thousands of e-mail addresses, chat rooms and, say, cell phone addresses with numbers on his hard drive, realize that in a few days once he is… terrorists know he has been captured, people are going to throw those cell phones away and change all that.  So you need to go and check each one out as quickly as you can. 

How in the world anybody could remotely believe that doing that is consistent with the Foreign Intelligence Surveillance Act, or can be done consistently with the Foreign Intelligence Surveillance Act, a 1970s statute that effectively requires the government to go one-by-one, case-by- case, individual-by-individual, yes, with Rick Ames.  Did we know enough to put a bug in his house?  We did, because the FBI had been going through his garbage, found a note that looked like it had to do with a dead drop, had authority, went into his home, and bugged it.  That is the kind of circumstance that Faisa was set up to govern.  But how in the world could anybody believe that Faisa could manage getting on top of thousands of Khalid Sheikh Mohammad’s addresses in his hard drive within a few days? 

As far as I’m concerned it is nonsense, and it is the reason why, frankly, I believe that the President has constitutional authority, whatever the backing and forthing has been in the statutes, to do what he was doing with the NSA intercepts.  There was no case that I know of in the NSA intercepts that dealt with abuse.  If you have an expectation of privacy in the United States when you were talking to an Al-Qaeda operative overseas, you should not. 

Now, we know from the 9/11 Report that before 9/11, NSA, which, like the CIA and like the FBI in the mid-seventies and thereafter, had been effectively frightened into a politically correct status in a lot of areas.  NSA had a switch.  They had been watching in Yemen, Al-Qaeda switch.  Al-Qaeda people in Afghanistan had sort of been talking to that switch, Bin Laden maybe. 

That switch called some people in the United States.  Did NSA check out who that could be?  No.  They had been told not to, just as the CIA had been told, after I left, to only recruit nice people as spies, not anybody who might have any badness in their background that might lead to criticism.  And just as the FBI had been told this part of the FBI cannot communicate with that part of the FBI, each of these politically correct limitations led to substantial restrictions well below the level that would have been blocked by their being unconstitutional.  Substantial restrictions on NSA, CIA and the FBI added on, from the mid-1970s on. 

In my judgment the NSA intercepts also, by the way, had oversight.  It was only Congressional oversight, but it was Congressional oversight, Gang of Eight briefed.  There are certain limited circumstances, and a program like this seems to me one of them in which a Gang of Eight [indiscernible] the Congress is the appropriate, and the only appropriate way, for oversight to occur.  I will close by saying that we have to make tough decisions on how to limit the access in the government, as well as outside it, if we want to have effective security on very sensitive matters. 

I think we may have to go back to a world in which we, essentially, for matters as important as, say, Bin Laden’s satellite telephone, in which we have people couriers traveling around with single copies chained to their wrist, shown to an individual who is a Cabinet member, not his deputy, taking back one copy, kept in one place at the end of the day.  That is the way Enigma was run in World War II.  That is the way the Purple, the code-breaking of Japan, was run in World War II, and we won in both the Atlantic and the Pacific.  Thank you.

 Male Voice 1:  Michael, we have already publicized [inaudible].

 Michael Isikoff:  Okay, I apologize for being late but I am in this shameless book self-promotion business at the moment, and I was on the Dianne [indiscernible] show this morning, talking about the new book I wrote with David Corn on Iraq, which has, I think, some very relevant passages that pertain to this discussion. 

I guess where I come at this context, let us take as a given that most if not all of us in the news media are citizens.  We are patriots and we are human beings.  And if somebody comes to us and tells us - a responsible person in the US government - that a story we are about to publish is going to harm human lives and endanger human lives and makes a credible case that that is so, I do not think any of us would take that lightly.  Almost all of us would withhold publication, or alter publication to take out the details that would do that. 

But the problem here is that the over-classification of information in the government’s domain has made all of us skeptical about the claims that national security is going to be endangered by a particular publication.  And, in fact, you do not have to take the news media’s word for that.  Just read any of the government reports on over-classification and the actual harm it does to national security, most recently and prominently, the 9/11 Commission.  We all talked about implementing the 9/11 Commission recommendations, and this was declared as an urgent national priority by the President and the Congress after the 9/11 Commission’s report. 

Well, one of the recommendations that nobody talked about, certainly not in the White House, was the need to address over-classification in government and how that actively harmed American security in the run-up to 9/11.  Director Woolsey talked about the NSA not sharing the information about Al-Qaeda operators being called in the United States.  Those two Al-Qaeda operatives [indiscernible] and Khalid Al Madar were known to the CIA.  They had been tracked at the Malaysian meeting.  They were tracked coming into the United States. 

And, as the 9/11 Commission report concluded, that was information that was never shared with other relevant US agencies, including the FBI.  And this was probably the single biggest intelligence failure prior in the run-up to 9/11.  And then you ask yourselves, why was it not shared?  Well, because CIA people concluded the wall was a part of it, but they concluded that that was too highly classified.  The people in the FBI were not cleared for that information, and so the people charged with finding Al-Qaeda operatives inside the United States were not given the information that the CIA had in its possession about Al-Qaeda operatives in the United States because of the concerns about sharing classified information. 

If ever there is a case for over-classification damaging US national security, there it is, and it is one reason why it was put into the 9/11 Commission’s report.  It just astounds me that the people who have taken that report seriously and said the need to implement its reforms are necessary to protect American security have not addressed that one in particular. 

That said, let me talk about Iraq.  That is the subject of the book I just co-wrote with David Corn, out in bookstores today.  And I want to talk about leaks.  We hear so much about leaks that might potentially harm national security.  Let me talk to you about a leak that did not occur in the run-up to the Iraq War because it would have involved the disclosure of classified information, and people charged with that information took that seriously and therefore did not disclose it. 

And I want to talk about the national intelligence estimate on Iraq that was submitted to the Congress in secret on October 1, 2002, about 10 days before the vote on whether or not we should authorize the President to go to war in Iraq.  That NIE, portions of which have since been declassified after the war, of course had the views of all the US intelligence agencies about what was known and what was not known about Iraq weapons of mass destruction.  And if you forgive me I’m just going to do a very short reading of one portion of the book, in which we highlight what happened when that NIE went up to Congress. 

We talked to - this is a passage that deals with the recollections of Peter Zimmerman, who was the scientific adviser to the Senate Foreign Relations Committee, who is eagerly awaiting the NIE because he thought this was a crucial document that was important to the debate on Iraq.  And as soon as he could, Peter Zimmerman the scientific adviser rushed to the US capital to read the CIA’s classified NIE on Iraq weapons of mass destruction.  He read the NIE twice.  He was, he later said, astonished.  The document offered bold and definitive conclusions in its key judgments.  Iraq, it said, “has chemical and biological weapons” and is “reconstituting its nuclear weapons program.”  But the actual evidence, he thought, was hardly overpowering. 

Deeper in the NIE there was information that undercut those dark conclusions on critical points - the aluminum tubes, the unmanned aerial drums, the nuclear program.  Some government agencies had argued that the NIE was wrong.  “The dissents left out.  They are in bold, almost like flashing lights [indiscernible] they are called.”  He had read on NIEs before and never seemed to sense as striking as these.  I remember thinking he later said, “Boy, there is nothing there.  If anybody takes the time to actually read this, they cannot believe there actually are major WMD programs.” 

Well, that was classified information submitted to the Congress on the eve of the vote, and yet it would have been a federal crime for Peter Zimmerman to call me up, or call Stuart up, or any other member of the news media and tell them, “Do you know this document we just got has striking dissents on key portions from major US intelligence agencies?”  Now maybe somebody can articulate a reason why the dissenting views of key US intelligence agencies on major questions of war and peace should not be shared with the American public, but I’m hard-put to see what the harm to national security would have been. 

I do know that had there been a full disclosure of that, had somebody leaked the NIE prior to the vote, it would have certainly caused a major ruckus.  It would have certainly gotten a lot of attention, and I would argue it would have contributed substantially to a healthy and honest democratic debate about whether the United States government should take this consequential decision of going to war in Iraq. 

Now, it so happens that after the war and after no WMD is found, and there gets to be a controversy about that, the President authorizes the Vice-President to authorize his Chief-of-Staff I. Scooter Libby to leak portions of the NIE.  And as we recount in the book, Libby first meets with Judy Miller of The New York Times and has a document in his pocket which he consults during his meeting with Judy Miller of The New York Times at the Saint Regis Hotel on July 8, 2003, in which he tells her select portions of the NIE. 

Of course, what Libby was interested in doing at that point was only finding those select portions that supported the Administration’s case.  He is not sharing the dissents that so struck Peter Zimmerman and others who were skeptical when the NIE came out.  And he tells her about the Niger uranium charge, which is, as we actually explore how that got into the NIE in the first place, when the CIA had already testified that it did not believe it to be true.  That is one of the sort of most fascinating parts of this saga.  But Libby is citing that portion of the NIE that has a reference to the Niger uranium allegation, and leaving out the fact that the State Department concluded it was highly dubious, and in fact dissented on the whole issue of nuclear program whatsoever. 

So there is a leak that did occur, a selective leak, and it was being used with the authority of the President because the court testimony is clear that it was the President who authorized the Vice-President to get this out, to get the NIE out.  That was a prime example of how leaks can be used for political manipulation, as opposed to contributing to the honest debate about issues of national security.  I’ll just say, look, it is very hard to draw hard-and-fast rules on these issues. 

In the case of the terrorist surveillance, the warrant was wiretapping program.  I think [indiscernible] Keller has written that what pushed him over the edge was the knowledge that there were serious people in the United States government, serious lawyers who had real agonizing qualms about the way the program was being run and whether it was being conducted with proper legal authority.  And I would argue when that is the case, when there are people, senior people in the United States government who have all the facts and believe the law is being broken, that is news.  That is, by definition, news. 

Now what details ought to be disclosed in writing about that is something that has to be determined on a case-by-case basis.  Get as much of the facts as you can, talk to all the relevant people, and then you make a decision about what can be published or what not.  But the idea that high-level government officials believe that other government officials are breaking the law and that that is not something that should be reported, I have to say, offends every bone in my reporter’s body. 

And it is something that I think has to be factored in very strongly in making decisions like this.  In that way, it does remind me of the leak that did not occur, the leak about the Iraq NIE, and the fact that there were government agencies that had written and dissented from the Administration’s position, and that that was being concealed from the public.  As I say, I offer this as a way of offering context from how, at least, this member of the news media approaches these questions. 

Michael Ledeen:  Thank you one and all.  We have of course gone over our time limit.  And so, does anyone have an urgent desire to say something before we open it up?

Stuart Taylor:  … ask Jim Woosley two questions.  First, I have never heard a persuasive example given as to why the disclosure of the NSA Program hurt national security, all circumstances considered.  In fact, I can think of a case to be made that it helps national security by scaring Al-Qaeda out of using wire communications and into using carrier pigeons, or whatever, by giving them an exaggerated view of our capabilities.  But more to the point, how did it hurt exactly?  The people have been claiming this for the government for almost a year, and I have never heard it put persuasively, but I wait with bated breath.

R. James Woolsey:  To do it persuasively one probably has to do it in a classified way.  But I would say that if you scare someone away from using a method of communication that you are intercepting into one that you are not intercepting, you are by that definition seriously damaging national security.  Nothing could be stupider.  When you are intercepting communication as we did with the Japanese and the Germans in World War II, you go to great lengths to try to keep from using that method of communication.

Stuart Taylor:  But they knew you are intercepting it.  Carl Rove…

[Cross-talking]

R. James Woolsey:  You may believe that all phone users who work for Al-Qaeda behave that way, but I would submit to you that if so, you are speculating.  I do not know for a fact that all members of Al-Qaeda were guarding all communications that might be intercepted by NSA already.  And if you believe that, then you do not believe the first thing you said, which is that we scared them away from…

Stuart Taylor:  If so, what did The New York Times tell them that was not already widely publicized in the news media?  I mean, should Faisa have been secret, because Faisa tells them that a judge can authorize a wiretap.  Should Faisa have been secret the whole time, so that they would not know that a judge could do that?

R. James Woolsey:  Of course, a statute itself cannot be a secret, but proceedings under Faisa are secret.  But for the reasons that I describe, Faisa is not a mechanism that can be used effectively to track within a few days hundreds or thousands of addresses and phone numbers that might be in someone like Khalid Sheik Muhammad’s hard drive.  It is like using the rules of sailboat-racing to try to regulate base-base intercepts of missiles or something. 

The law operates case-by-case and individual-by- individual.  It does not operate in such a way that a court can take thousands of e-mail addresses and phone numbers, and within minutes to hours, say, “Okay, these we have made a judgment on.  It is ok to check them out [indiscernible].”  It is just nuts.  Faisa, the structure of Faisa, cannot reasonably, as far as I’m concerned - I’m speaking only for myself here - be used to regulate the types of intercepts which NSA was doing.

Michael Ledeen:  I want to point out in connection with this discussion the general need for serious people to seriously address this kind of question.  And people a lot smarter and more senior than I am [are doing??] the same thing.  Your friend Judge Ellis, when he rejected the APAC lawyers’ constitutional argument, nonetheless, in a great cry of pain, I mean very melodramatic language, said, “Okay, you know it stands Constitutional scrutiny in my opinion but, for the love of God, will Congress not write new laws [indiscernible] the laws that applied to the modern period that do not date back to 1917, etcetera, etcetera?”  So, I mean, there is a need. 

Before we take questions which I’m going to do right now, I just want to drop a few factoids into this discussion.  Mike Isikoff complains about over-classification, and I’m sure we all agree with that.  The impression that when a leak is good and when a leak is not good, I think, requires pretty fierce and objective standards.  And I think it is dangerous to leave it case-by-case because I think if you leave it case-by-case, then editors will invariably make decisions that suit their interest, whether it is selling newspapers or whether it is supporting their political views, or whatever it is.  And I’m not convinced about the even-handedness of editors.  I mean, when Mike Wallace or Loren Jenkins said “My obligation is to history.”  Well, what was that?  It is megalomania.  But if you leave it up to individual people, they are going to make individual decisions, some of which we will like, and some of which we will not.  Jim talked about declassification harming individual agents. 

One of my favorite stories is one where the government declassified information.  They killed an agent; they killed a spy.  And that was the Terror Commission during Iran-Contra, where they published the name of a terrorist with whom we have established contact.  He was murdered within two weeks of the publication of the Terror Commission Report.  So it is not just journalists who do it; sometimes government does it inadvertently.  So this great zeal for more information, and so forth, [indiscernible] with Mike’s various references that every story you have told serves interests of one three-letter agency.  And that is another one of the dangers of leaking, because agencies that leak, leak with intent…

Michael Isikoff:  Actually the full story of the NIE is quite embarrassing to the CIA.  It is one of the major debacles, I think, in recent CIA histories.  I do not think it actually… my purpose here is to serve the agency that actually looks quite badly in our book. 

Michael Ledeen:  Okay.  Thank you for that.  The other question about individual agents and programs being burned, I would just like to mention what seems to me to be the most famous case of a leak, a newspaper publication damaging a program, which was Jack Henderson’s story.  And when was it, 1960-something… late 60s, I guess, in which he revealed that we were able to listen to conversations on Brezhnev’s car phone, and we never heard another conversation once that happened.  So, I would just finally say to Stuart that what we were always told, and it seemed to be true, that although one could say that in principle bad guys know that government listens to phone conversations, whatever phone conversations, that phone conversations are insecure.  That in professional experience, every time there was a major news story about intercepts, the volume of traffic among bad guys and involving bad guys always drops - although it did come back up to some sort of normal level later on.  So that I think this reinforces both points that are made. 

First of all, that they may know it but it does not always apply people do stupid things, people do things they should not do, thank goodness.  And secondly, that attention is limited and that you may wake up and do the right think in a little while, but habit overcomes brain almost every time, as all of us who smoke cigars can say with total confidence. 

Okay, we will take questions.  Yes, sir, could you identify yourself briefly? 

Ronald Weiner:  [Speaker is talking away from the microphone].  My name is Ronald Wiener [phonetic] and I’m affiliated with [indiscernible].  My question is for Mr. Isikoff.  You said that in terms of the NSA [inaudible] wire campaign story that [inaudible] justification [inaudible] was that they were seriously [inaudible] serious qualms  [inaudible].  Now it seems like Krass [sounds like] is always encouraging this Administration to get some people, cabinets, and then hide decisions who will question [inaudible] talk about, well, Condoleeza Rice is not the right person or the State Department…

Michael A. Ledeen:  Please quickly just questions.  No speeches.

Ronald Weiner:  My question is wouldn’t that need to encourage [inaudible] as opposed to really finding people that will ask legitimate questions?

Michael Isikoff:  Well, right.  Just a couple of points.  One is, inevitably, in the Times story as in almost all these stories, people inside the government tend to talk on background.  They do not identify themselves.  That is why we have anonymous sources; that is why anonymous sources are essential to good, accurate, healthy reporting in a democracy.  You provide a source the cloak of anonymity so you can get information that they would not otherwise tell you.  And if serious people, sources you trust are telling that there is a vigorous debate going on about whether what the White House is doing is within the confines of the law, that is news and it is something that the public ought to know. 

And, look, I think, again, just like a leak about the Iraq NIE would have contributed to a healthy and honest debate about Iraq prior to the launching of the invasion, I think that the leak to The New York Times that did occur that led to the publication of that story has led to a much healthier, honest debate about the war on terror, about what the scope of presidential authority is and ought to be.  The White House has used the argument, “We are at war.”  And so, therefore, the President’s Commander-in-Chief authority trumps all.  Well, the nature of the war we are in and the level and the scope of presidential authority under that war is something that the American public has profound disagreements about. 

The Congress has profound disagreements about the political leadership.  We did not declare war.  We do not know exactly who the enemy is.  There was a Congressional resolution that was passed after 9/11 that authorized the President to strike back against the people who hit us on 9/11.  The Supreme Court has already determined that did not implicate full Commander-in-Chief wartime authority.  That is the highest law in the land, and they did it in the Hamdan case.  I think that that is something that people have to take seriously. 

All I'm saying is there ought to be a debate about these things, an open, honest debate.  In order to do that, you have to know what the government is doing.

R. James Woolsey:  Just one point for the debate to be open [audio glitch] also of course being in front of Al-Qaeda.  And the second point is if Mr. Keller had ever served in the United States government, he would know that for [audio glitch] any major and important and difficult decision, there are always legal disagreements between people’s general councils.  It happens.  I have served in four administrations, all in National Security, three Republican, two Democratic.  I cannot think of a single major decision in which there were not legal issues and questions and people on both sides.  So that argument - it is an argument, but it proves that essentially everything should be in the open.

Michael A. Ledeen:  Wait for the non-functioning microphone.

John Wohlstetter:  John Wohlstetter, Senior Fellow, Discovery Institute.  With respect to the airing of footage supplied by Hezbollah in the recent Lebanon conflict, without verifying its accuracy, do you think that perhaps the Federal Communications Commission under a subsection of Section 303 of the Communications Act, Title 47, which prohibits false and deceptive practices, might reasonably require that footage that is suspect be labeled as such - unverifiable, suspect, eight hours old, unable to check or something, so that the public knows that it is not verified in the way that normal reports are?

Male Voice:  Perhaps from Reuters?

Michael A. Ledeen:  Well, let's not be restrictive.

Andrew C. McCarthy:  Was that El Manor?  Was that an El Manor footage?

John Wohlstetter:  The footage I'm talking about includes things such as they get to a building eight hours after the bombing and they assume that they do not say that we do not know what they have done to put bodies in, perhaps because they have been known to do.  It includes the airing of footage that is supplied… it comes from Hezbollah.  I mean, in World War II would you take footage from the SS and air it?  I mean, they do not have TV, but you know what I mean.  It includes even in some cases I have seen reports where reporters were seen watching Hezbollah bring bodies in, and then they proceeded to film it, and then it was aired without disclosing that this has been done.  It includes what the Palestinians in the West Bank have done for 20 years, which has been reported by Tom Friedman, by Stephanie Guttman in a recent book where footage from Stringers [sounds like] comes in.  They make no effort to tell the public “subject to censorship,” which they always say about Israel.  No effort to tell the public that their lives have been threatened and those kinds of things.

Michael A. Ledeen:  Okay.  Sir?

Edwin Williamson:  John Wohlstetter addressed one of the questions I had of Michael Isikoff… oh sorry, Edwin Williamson.  I just like to repeat it.  I think the fact that someone has lost a legal debate within the Administration is not grounds for turning the internal discussions over to a reporter.  Second, is it really a leak if the person is giving information that the person who decides what information may be disclosed has said that you may leak it?  That seems to be the case of the so-called leak that you are attributing to Libby.  Whether it was good politics, whether it was good to do it with media is another question, but it is not a leak in my view.

Andrew C. McCarthy:  The President of the United States can declassify things.  If he gave somebody authority to put information out, it is not a leak.  Now, there are a variety of different ways in which the Administration puts information out.  Sometimes the President gives an address to the nation.  Sometimes they send a spokesman out to a press gaggle.  Sometimes they selectively pick one person to give the information to.  But if the President has authorized the information to be put out, it is not a leak.

Michael A. Ledeen:  I just want to say that government employees with access to classified information are not governed by the same rules as normal citizens.  They have taken oaths.  They have made promises.  They are not entitled to decide by themselves when they are going to break that oath and when they are going to violate that promise.  That is just criminal.  That is one of the things that we are addressing here today. 

And while I agree with you that - we all agree that having access to classified information makes for a much better discussion often.  But there are other consequences, and those people who took oaths to conceal information, classified information, if they disagree with policy that is being made, or if they have problems with things that the intelligence community or any other part of the government are doing, they have well-established legitimate channels to make that point, some within the executive branch, many to oversight committees within Congress, and so forth.  But they did not do it that way.  They did it other ways, and that is one reason why we are facing what seems to be very troublesome, very troublesome legal cases coming up here. 

Above all, the APAC [sounds like] case.  I mean, a court, a jury is probably going to be asked to pronounce on a general question, even though it will be sort of specifically framed.  And that is, are people, like you and me and Michael, or like lobbyists or whatever, sort of normal people pursuing professions in which gathering information is an important part of our jobs, are those people who have not sworn oaths, who have not promised to conceal classified information, should they be held accountable under exactly the same circumstances and according to the same standards as those government officials who have sworn oaths to protect information?  I mean, I think if we are going to talk about leakers and people bringing information that adds to the debate. 

We have to keep reminding ourselves that they are playing under a different set of rules and they are playing voluntarily under those rules, because they swore those oaths.  They made those decisions.  Yes, Ma’am.

Elaine Middleman:  Hi.  Elaine Middleman, attorney.  In light of the present characterization of the Plame leak and Armitage being the “source,” was Valerie Plame an undercover agent, was - having her, or was she out of it as an undercover agent?  And if she was out, did that put lives or programs or whatever else at risk?

Michael Isikoff:  Thank you.  The Armitage information comes from Hubris.  I ran the first excerpt in Newsweek two weeks ago, and that is what shined the spotlight on Richard Armitage’s role.  On Valerie Plame, there is some confusion that people who engage in the debate on this have.  And most of the time the critics of the Fitzgerald investigation question whether or not she was covert under the strictures of the Intelligence Identities Protection Act, which is the law that makes it a federal crime to out a CIA agent.  That law, which was crafted in 1982, has some very imprecise language about you have to be serving overseas within the last five years. 

The facts on Valerie Plame are this, and it is disclosed in the book.  In fact, her precise position is in the book for the first time, and it is actually quite a surprising one.  She was the Operations Manager, Chief, Director of Operations for the Joint Task Force on Iraq in the Counter-Proliferation Division of the Directorate of Operations.  The Director of Operations is the clandestine service.  The Joint Task Force on Iraq was the unit within the Director of Operations that was charged with finding Iraqi WMD.  And she, in fact, had a direct operational role in the search for WMD. 

She traveled overseas in that capacity, and she was under cover.  That would have made it a crime under other laws to disclose because it is classified information.  If we were going rigorously prosecute anybody who discloses classified information, Richard Armitage and Karl Rove and Scooter Libby, all of whom talked about Valerie Plame’s employment at the CIA, could have been prosecuted for disclosing classified information, but that was viewed by Fitzgerald as a stretch.  He did not want to go down that road, and he also did not prosecute under the Intelligence Identities Protection Act because of the very confusing language relating to covert, as opposed to undercover.

Michael A. Ledeen:  Andy, do you want to say something?  I know Stewart does.

Andrew C. McCarthy:  No, actually no.

Michael A. Ledeen:  No, okay.  A rare…

Stuart Taylor Jr.:  And Michael already said it in particular.  I think it is important to emphasize that the theories of prosecution that seem to have a lot of support in this room could be used… if there is a Democratic President elected in 2008, his attorney-general could say, “The first thing I'm going to do is put Karl Rove in prison for leaking the classified identity of a covert CIA agent.”  I think it would be a terrible thing to do, but you want to give the President a big gun like that, that is what it could be used for.

R. James Woolsey:  I was hoping that Andrew would get into this.  But there are all sorts of requirements in this 1982 Act.  This Act was drafted very narrowly and specifically to go after a G4 [sounds like] while he was living in Cuba, intentionally publishing a magazine that leaked the identities of American covert officers to try to get them killed.  And there are all sorts of -  I have not read the statute in some months, but Andrew knows it a lot better than I do.  There are a lot of specific requirements in this which [audio glitch] have to prove in order to get a conviction, and it is - though all of those specific requirements are probably the reason there was no indictment on the offense of Libby.

Stuart Taylor Jr.:  we’re not talking about the ’82 Act.  I'm talking about classified information being a crime to publish, period.  That has nothing whatsoever to do with the ’82 Act.

R. James Woolsey:  Well, I am pretty sure Michael was talking about the ’82 Act.  He was talking about whether she was undercover or not, and when you picked up on that I thought that was what you were discussing as well.  If you are talking about under the Espionage Act, there are all sorts of other problems, and I do not think you should focus just on Karl Rove.  I rather doubt anybody is going to bring a successful prosecution in this Administration, or next, or ever against Karl Rove under the Espionage Act for those conversations.  I cannot conceive of it.

Andrew C. McCarthy:  Since I have abdicated, maybe I can jump back in for a second.  I think on the Espionage Act in particular, it is theoretically possible that a number of people who were not charged could have been charged.  The problem from a prosecutor’s standpoint of proving it, and I think the reason that Fitzgerald made the correct decision with respect to the Espionage Act is that it is not only necessary to leak something that is in fact classified, and for the reason I'm hesitant with what Michael brought up is I do not know what the facts are with Valerie Plame.  It has been a subject of a lot of controversy because Pat made a remark at the press conference.  And when the defense at the trial actually tried to get the information that was the basis of this remark, he ended up saying that “that is not relevant.  I do not have to turn it over.” 

So there has been a lot of back-and-forth about what her actual status is.  But if someone is going to be prosecuted under the Espionage Act, it is necessary for the government to prove beyond a reasonable doubt not only that the information fit the definition set forth in the Espionage Act, which, by the way, does not require it to be classified, it has to be national defense information, as that term has been interpreted by the courts. 

But the thing that would hold me up is the prosecutor.  I imagine that holds most prosecutors up in this situation, is the willfulness requirement, which is a heightened [indiscernible] requirement.  And the additional requirement that you have to prove that the defendant had reason to know that the information could either be harmful to the United States or helpful to a foreign government. 

I think as an objective matter, it is probably simple enough with intelligent people, and most people in the press tend to be intelligent people, to make an objective call about whether the person knew that the information at hand could be harmful to the country or helpful to another country.  Where it is very difficult, I think, is willfulness because willfulness is a criminal state of mind, which the Supreme Court and the Federal Courts have interpreted in a way that is sufficiently high as almost to undermine the old adage that ignorance of the law is no excuse.  What the courts say, and I cannot remember the name of it, but Justice Scalia has actually written a fairly lengthy concurring opinion on this.  But you virtually have to know that what you are doing is a crime, and do it with an evil purpose that you know is to do something that the law violates. 

In these contexts, and particularly when you are dealing with the situation where there are - there is a cross-cutting First Amendment interest, then you have people in the media who believe that regardless of whether things are classified, not classified, that they are performing a constitutional function in forming a democratic society about things that are important in government, I think it is a very tough case in front of a jury, unless it is the cleanest of all really execrable leap-type [sounds like] situations to think that you are going to manage to convict a member of the media under the Espionage [audio glitch].  Which is why, in part, I think strategically the government would be much better trying to treat them as witnesses and compel them to give up their sources, who in the end I think are the more culpable actors in any event.

R. James Woolsey:  That is why under either 798 on communications intelligence or the Identities Act, one has a better chance on the willfulness issue, but the Identity’s Act has a number of other…

Andrew C. McCarthy:  But the Identities Act…  I do not mean to take up all the time here.  The Identity’s Act has a bunch of different prongs to it, and it even has some affirmative defenses that I - it has been a while, Jim, since I looked at it, too, but I remember about a year or a year-and-a-half ago, the [audio glitch] actually filed a brief in the Court of Appeals in connection with I think it was both Cooper and Miller, but the argument that they essentially made was that there could not be a crime here because Valerie Plame Wilson’s identity had already been blown.  So that even if - the blowing I think in that connection was with the Soviets and the Cuban [audio glitch]

Michael Isikoff:  [Audio glitch] There was a belief by some that the [audio glitch] James actually had been on a personnel review board for the CIA, possibly under your tenure, I think… 

[cross-talking]

R. Stuart Woolsey:  But we caught him…

Michael Isikoff: …before you caught him, in which he was [audio glitch] the promotions, NOC promotions, non-official cover, NOC promotions.  And as a result of that a whole bunch of NOCs had to be recalled after the Ames discovery, and at the time Valerie Plame Wilson was a NOC serving overseas in the CIA. 

Michael A. Ledeen:  Okay.  We are in overtime, but ask away by all means.

Dan Schweitzer:  I'm Dan Schweitzer [phonetic], a DC lawyer.  This I'll direct first to Andrew McCarthy.  Assuming we all agree that the Espionage Act is not really the ideal vehicle by which to deal with this because it is too broad and it is outdated, I wonder how you might craft a statute if someone in Congress asked you to balance the incredibly important role the press plays and overseeing what the government does, while at the same time making it a crime for the press if it goes too far over the line in revealing national security issues?

Andrew C. McCarthy:  I have to say I'm not as down on the Espionage Act even with everything that has been said.  I'm not as down on it as some people are.  I know in Judge Ellis’ opinion, he points out that the law has been as it is, basically, for over half a century, and despite occasional efforts to implore Congress to change it, that has not happened.  I think the problem particularly in the last year is the enforcement of the statute and the way that the Justice Department has gone about conducting the investigations. 

I do not - and I say this with great respect for the people at the Department, many of whom I know for years - for the life of me understand why in connection with some of these leaks, the reporters have not been called to the Grand Jury and asked for their sources.  The leaking of that information to the press people was a crime.  Reporters are in that sense witnesses to a crime. 

Now, you can argue all day until the cows come home about whether this was important information to get out to the public or not, but there have been a couple of things that I think we have been talking around all morning but we have not really nailed.  One of them is that this is an imperfect situation.  There are going to be mistakes made, there are going to be injustices that will happen.  But ultimately, somebody has to decide; somebody has to be essentially in charge in the equation of saying, “This is a leak, this is a piece of information that needs to get out to the public, or this is a piece of information that does not.” 

Stuart’s position, and I think refined by what Jim said, which had to do with setting up a code of behavior or sort of standards for editors to make decisions about, I think that would be a drastic improvement on what we have.  But the bottom line problem of it is still that the media people are unaccountable.  No matter what happens, whether the standards are met or they are not met, Bill Keller or somebody else is going to make the decision.  And if he makes a wrong decision, if he blows national security in wartime that actually does do damage to the country, there is no recourse. 

On the other hand, if you accept the fact that the government is going to make the decision, and then I realized that there are tons of downside to that, but at least in the government side of the equation, you have oversight, you have whistleblower standards.  You have mechanisms for people who if they see government misconduct can report to government misconduct. 

You have congressional oversight, you have some judicial oversight, and ultimately you have the ballot box.  If people come to believe that the President of the United States is manipulating intelligence, or on the basis of oversight and the other things that I have just mentioned, or if prosecutors are not carrying out the laws, executing the laws properly, they can be removed.  You have some recourse to them.  But if the media blows classified information we have [audio glitch], what are we supposed to do other than prosecute them?

Michael A. Ledeen:  All right.  Thank you.  Naomi?

Naomi:  I'm kind of [indiscernible] the question from a legalistic point of view.  If you are trying to convict or indict Carl Rove or anyone else on the grounds that they knew that Valerie Plame, for instance, [indiscernible] has undercover, what we are trying to do with [indiscernible], how would you go about trying to make a case that they knew it, absent a written statement to that effect, or number of people having remembered conversations?

Michael Ledeen:  Could I answer that?  I believe Patrick Fitzgerald has alleged in court papers that Libby…  I do not think he said this about Rove, but that Libby knew that her identity was classified.  Not in the sense of covert agent under the ’82 Act, in the sense of a classified government secret.  That, if he could prove it, would go a very long as a technical matter towards making him prosecutable under the Espionage Act.  I agree with everything Andrew said about he should not be prosecuted in the Espionage Act, but I wonder how many people in this room trust the next Democratic administration’s first special prosecutor not to do it if it can be done.

R. James Woolsey:  They still have to get through the [audio glitch] hurdles that are the key ones that Andrew talked about.

Michael Isikoff:  I think he knew it was classified.  Get you halfway there, at least.

Andrew C. McCarthy:  What Stewart was saying I think resonates with me in one sense, and that is that I happen to know Patrick Fitzgerald.  He is as honorable a guy as I ever had the privilege to be around.  But the next person might not be, number one.  And, number two, when you are dealing in these kinds of cases you are not dealing with Mafia guys or drug dealers for whom the whole ballgame is conviction.  They expect to be indicted as sort of a cost of doing business.  These people, if you indict them, you have ruined their lives.  Their lives are over.  And it is a lot easier to indict them than it is to convict them, and that is something to be concerned about.

Stuart Taylor:  Oh, really?  I mean, in Washington in the last 25 years, if you have not been indicted, you do not matter.

Andrew C. McCarthy:  That is why I do not get down there.

Michael A. Ledeen:  Yes, sir?  In the white jacket, yes.  No, the non-functioning mic will arrive.  Not to worry.

Male Voice:  [Heavy accent] [indiscernible].  It is for Mr. Woolsey, and it is about NSA wiretapping program.

I think the problem is that we never apply the program on ourselves, but I do and I believe that I'm a perfect target because I call overseas.  Each day I use key words like “jihad.”  My library record is just awful.  Is there any legal way to know if I'm a target?  And can I clear myself?

R. James Woolsey:  I have no inside information, but the NSA program, as described, I would say I do not care what keywords you use.  You should not be in any difficulty unless you are talking to a friend in Al-Qaeda.  In which case, you are probably up on their screen.  So I think if you have innocent relationships with Al-Qaeda, you are their dry cleaner or their food delivery people or something like that, I would probably find some other customers or clients.  But other than that, at least under the NSA Program as it has been described in a number of places, I do not think you have got a problem.

Male Voice:  [Audio glitch] …whenever you are talking to your cousin twice removed, who you have no idea is affiliated with Al-Qaeda and is actually only suspected of possibly having something to do with Al-Qaeda because he was seen in the company of somebody who is also suspected of meeting with somebody at Al-Qaeda, and therefore the US government is listening to your calls or members of your family.

Andrew c. McCarthy:  I have to say if you are calling overseas, if you are calling outside the legal system of the United States and you do not have an expectation of privacy, one of the unstated but very important undercurrents of this whole Faisa discussion is almost every prong of the statute, not all of them, but almost every prong, requires there to be an expectation of privacy before the statute actually attaches.  And if you were to enforce the law in any other way, what you would be basically saying is that every intelligence agency on the planet Earth, except for the United States, can listen in on international telephone calls because every other agency conceivably could be listening.  And only we would be the lone nation regarding the whole world as a place that is no different from making a call from Manhattan to New Jersey.

Stuart Taylor:  Let me just follow up on that because I actually do not disagree that the government listening in to your phone calls is not quite the same thing as the government declaring you an enemy combatant and throwing you in a military [indiscernible] without access to a lawyer.  Listening in on your phone calls is far less invasive, shall we say.  But, that said, you said there is no expectation of privacy, it is still illegal for the government to listen in on a US citizen’s phone calls without a court order.  Or let's take it away from this program.  I mean, they cannot really listen in on your overseas phone call.

Andrew C. McCarthy:  Yes, it is not illegal and this is yet another thing of this debate that makes me insane.  It is extra- statutory, but it is not illegal.  It is illegal if you do it, but the President of the United States, it happens, is a constitutional officer who is vested with authority under Article II of the Constitution.  If there were no Faisa, he would have complete authority, particularly in wartime, to monitor international telephone calls, which he reasonably suspects to involve enemy combatants, and the fact that Congress passes the statute, it cannot increase the President’s constitutional authority, and it cannot decrease the President’s constitutional authority.  If he has the authority under Article II, he can exercise it, whether Congress passes one Faisa or a hundred Faisas.

Michael Ledeen:  But the Congress did pass the Faisa and, I mean, I think that is precisely what the debate is about.  The Faisa [Cross-talking] establishing a statutory requirement, essentially.  Let me lay down the law on this [cross-talking].  Your Article II argument is precisely what the debate is all about.

Andrew C. McCarthy:  But it is not only my Article II argument.  It is the Article II argument that [audio glitch] made by every Court of Appeals to actually consider [cross-talking].

Stuart Taylor:  And Congress could not pass a law saying that the President does not have the right to negotiate treaties.  I mean, they could pass it till they are blue in the face [audio glitch].  Article II says he can negotiate treaties so that is [cross-talking]

Michael Ledeen:  I think the issue being litigated right now, at least one Federal judge has already opined differently than your conclusion.  But whether they are [cross-talking].  Two quick points.  First, I want to three-quarters agree with Andrew.  I think that they should be eavesdropping on these phone calls.  I think it was legal for the President to start eavesdropping on these phone calls, even if inconsistent with Faisa because it was an emergency, and Faisa was outmoded.  My problem is that he should have gone to Congress and said, “We got a problem here.  Let's fix Faisa instead of keeping it secret.” 

On the question of the President’s inherent power to do it being illimitable by the Congress, I respectfully submit that both the Chief Justice of the United States, John Roberts, and Alito cited it as a touchstone of constitutional wisdom in this area an opinion of Justice Jackson that made it quite clear that the President is on the thinnest constitutional ice when Congress has legislative to the [audio glitch] what he wants to do.

R. James Woolsey:  That is in an area, it was an area seizing the steel mills where the President had never acted before as part of combat.  President [audio glitch] acting as part of combat to intercept enemy communications since before we were a nation.  So I love the Jackson concurring opinion and [indiscernible], but one can certainly dismiss it as [indiscernible], I believe, if one is talking about something that presidents routinely do in combat, unlike seizing steel mills.

Michael A. Ledeen:  I'm going to shut this thing down here.  We are going on 20 minutes overtime.  I think it has been one of the most productive and intelligent conversations that I have heard on this subject, and I am encouraged to believe that we should do it again.

[End of file]

[End of transcript]