Leak in Domestic Spy Program Investigated

Times Staff Writer

The Justice Department disclosed Friday that it was investigating who had leaked classified information about President Bush’s top-secret domestic spying program -- paving the way for a potentially contentious criminal probe that could reach high into the White House, Congress and the courts.

Several U.S. officials familiar with the investigation -- which is in its infancy -- said it would be conducted by FBI agents trained in probing national security and counterintelligence matters.

The officials said the investigation would focus primarily on disclosures in the New York Times that Bush had authorized the National Security Agency to conduct surveillance on people in the U.S. without getting warrants from a special federal court established to approve them.

The warrantless spying program has caused an uproar in Congress and among privacy experts, who said the Bush administration might have broken the law by intentionally bypassing the secret federal court that is supposed to oversee sensitive investigations involving suspected espionage and terrorism.

As in the politically charged leak investigation into who unmasked CIA operative Valerie Plame, witnesses and potential targets of any criminal prosecution -- including journalists -- probably would be brought before a federal grand jury, U.S. officials said. Jurors would hear evidence and ultimately vote on whether to issue indictments.


The officials said that all federal probes into leaks of classified information were sensitive. But the level of sensitivity surrounding the current probe is extraordinary -- and likely to intensify -- because of the presumption that few government officials had access to the program’s details. Most of those potential witnesses are high-ranking administration officials, in the NSA or other intelligence agencies, or in top-level posts in Congress or the Foreign Intelligence Surveillance Court.

Officials at the Justice Department, FBI and National Security Agency refused to comment in detail, except to confirm Friday that the criminal probe was underway.

“We have opened an investigation into the unauthorized disclosure of classified information related to the NSA. We have no comment beyond that,” said a Justice Department spokesman, who said he was not authorized to comment by name because the investigation was ongoing.

White House spokesman Trent Duffy said Bush learned of the probe in a Friday morning briefing by senior aides at his ranch near Crawford, Texas.

Duffy told reporters that the White House had not requested the probe, saying, “The Justice Department undertook this action on its own, which is the way it should be.”

“The president [has spoken] directly about how he felt about the leaking of classified information,” Duffy said. “The leaking of classified information is a serious issue. The fact is that Al Qaeda’s playbook is not printed on Page 1 -- and when America’s is, it has serious ramifications.”

Investigations into leaks of classified information usually are requested by the agency possessing the information. The NSA would not comment on whether it had asked for the investigation, but a Justice Department official indicated that his department did not initiate the investigation on its own.

The New York Times reported Dec. 16 that beginning shortly after the Sept. 11 attacks, Bush authorized the National Security Agency to intercept and monitor international telephone calls and e-mails of people in the U.S. The Times said it based its findings on interviews with knowledgeable U.S. officials, many of whom said they were concerned that the program was an unchecked abuse of executive power. The Times, which had no comment Friday on the investigation, also said it had withheld the article for a year, in part at the administration’s request.

It is a federal crime to discuss or disseminate classified information, especially if it is believed to have compromised national security, which Bush contends has happened in this case.

In confirming the existence of the surveillance program, Bush said Dec. 17 that the measure was needed to protect Americans from terrorists.

By law, the NSA is largely prohibited from conducting such domestic surveillance, and it is supposed to get permission in each specific case from a secret tribunal of federal judges formed under the Foreign Intelligence Surveillance Act.

Several current and former U.S. officials said Friday that the investigation would delve into the inner workings of the NSA unit that operated the spying program, as well as the legal offices in the White House and Justice Department that Bush has said provided the authorization.

Unlike the ongoing investigation into disclosures about Plame’s CIA status, this probe is not being run by an independent special prosecutor who is immune to political pressure but by Justice Department officials who work at the discretion of a presidential appointee, Atty. Gen. Alberto R. Gonzales.

That prompted some critics Friday to call the probe an attempt to silence internal critics of the administration when they were most needed to bring controversial counter-terrorism programs and policies to light.

“President Bush broke the law and lied to the American people when he unilaterally authorized secret wiretaps of U.S. citizens,” said Anthony D. Romero, executive director of the American Civil Liberties Union. “But rather than focus on this constitutional crisis, Atty. Gen. Gonzales is cracking down on critics of his friend and boss.”

Romero called on Gonzales to appoint a special counsel “to avoid further charges of cronyism.”

Gonzales was the president’s legal counsel in the Texas governor’s office and at the White House before Bush nominated him to be the nation’s top law enforcement officer.

One federal law enforcement official denied that investigators would be impeded by politics, saying they would pursue leads and try to identify potential leakers wherever the evidence took them.

“You never start an investigation knowing where it is going to take you,” the official said, also on the condition of anonymity. “But [the Justice Department and FBI] are bound by the fact that a lot of this is classified and [they] simply cannot discuss it.... That is why [they will not] provide guidance or even fill in the blanks.”

Several ranking members of Congress, Republican and Democrat, have said they are deeply concerned about the program to eavesdrop without oversight by the FISA court, and they have vowed to hold hearings on the matter early next year.

Eric H. Holder Jr. -- deputy attorney general in the Clinton administration and acting attorney general briefly under Bush -- said Friday that he believed existing laws were sufficient for the kind of surveillance needed to protect Americans from attack.

Holder said he thought the probe would probably reach into the administration’s inner circle.

“It would be interesting to see what the paper trail looks like on this. And what concerns, at any level, might have been expressed about this, and by whom,” he said.

Holder said the administration should express support for a full airing of the domestic spying program that prompted the leaks. “If you are going to do the leak investigation, you should also make a commitment to cooperate in the investigations into the program itself,” said Holder, who signed many FISA warrants as Atty. Gen. Janet Reno’s chief deputy from 1997 to 2001. “This is a program that really needs to be examined, and the American people are entitled to that.”