It’s Fall 2003. Democrats and many media commentators are in an uproar over the publication, by conservative columnist Robert Novak, of the name Valerie Plame. “There must be an investigation,” they demand. “And that investigation must be independent, free from the influence of Attorney General John Ashcroft or anyone else too closely allied with the Bush White House. This is very, very serious stuff.”
Well, they got what they wanted. The CIA-leak investigation began in September 2003, and in December of that year it came under the leadership of prosecutor Patrick Fitzgerald, who continues in that job today. Two months from now, we should all take a moment to commemorate the probe’s third birthday. Perhaps there will be a fourth, and a fifth, and, well, who knows?
Given that the Justice Department has gone to such extraordinary lengths to investigate a leak that has never been shown to have seriously damaged U.S. national security — in the case of perjury charges against Lewis Libby, Fitzgerald has said he does not plan to offer “any proof of actual damages” done by the Plame leak — it should certainly also be investigating a leak that clearly has done significant harm to our government’s efforts to keep us safe.
We’re referring, of course, to the New York Times’s exposure of the details of the Treasury Department’s program to monitor terrorist finances, one of a recent series of damaging leaks that also revealed the secret prisons in Europe and the NSA surveillance program. In an interview with NRO, former September 11 Commission co-chairman Thomas Kean, who was briefed on the terrorist-finance tracking program and asked Times executive editor Bill Keller not to disclose it, called it “a good program, one that was legal, one that was not violating anybody’s civil liberties, and something the U.S. government should be doing to make us safer.” When asked whether publication of details about the program did any damage, Kean answered, “I think it’s over. Terrorists read the newspapers. Once the program became known, then obviously the terrorists were not going to use these methods any more.” And by the way, the other co-chairman of the 9/11 Commission, Democrat Lee Hamilton, also asked the Times not to publish.
We know that some commentators — including, paradoxically, Keller himself, who played the story on the Times’s front page — have suggested that the revelation was no big deal because terrorists already knew the U.S. was tracking their financial transactions. So why did the paper top its story with the headline “Bank Data Sifted in Secret by U.S. to Block Terror”? And beyond the headline, why did the article refer to information about the program as “secret” or “classified” not once, not twice, not thrice, but ten times?
And, as our David Frum has pointed out, far from revealing the vague outline of the program, the Times disclosed such key details as: American investigators have a hard time tracking ATM transactions in the U.S.; they can’t track wire transfers in real time; and the United Arab Emirates is cooperating with the program. All good stuff to know — if you want to evade U.S. scrutiny.
While we believe the Times made a terrible judgment in publishing the story, we do not question the paper’s legal right to do so (calls for an Espionage Act prosecution of the Times are pure fantasy). But we also do not question the government’s legal right — indeed, its obligation — to find, prosecute, and punish those who are responsible for leaking details of this highly classified program. They have recklessly and illegally harmed an important program in the War on Terror. It used to be thought that leak investigations always went nowhere, but now we have the experience of the Fitzgerald investigation to show us that reporters can be subpoenaed and leakers found out.
So far, judging by news reports, there is no such investigation going on. Perhaps there’s action we don’t know about, but the Plame precedent is instructive. When the CIA first referred the matter to Justice, nothing happened. It was only when then–CIA director George Tenet personally pushed for an investigation and his intervention was leaked to the press that Justice began to move. We expect the same aggressiveness in this case from new treasury secretary Henry Paulson.
If the Bush administration’s complaints about the damage done by the Times story are to be taken seriously — and they should be — it must pursue the government leakers who are the ultimate source of the damage. The administration’s allies aren’t going to let this one go.