Jon E. Dougherty is a Missouri-based political science major, author, writer and columnist. Follow him on Twitter.
As the Senate Intelligence Committee continues its probe into a controversial National Security Agency eavesdropping program, a former Pentagon official says the Bush administration has found it increasingly difficult to share top-secret information with Congress out of fear it will be leaked to the press.
Jed Babbin, a one-time deputy undersecretary of defense in the administration of George H. W. Bush, told WorldNetDaily fear of congressional leaks are what prevented the current White House from pursuing legislation specifically authorizing an NSA electronic-monitoring program ordered by President Bush in the wake of the 9-11 attacks.
Details of that highly classified program were leaked to The New York Times more than a year before the paper eventually reported them in December. Since then, the administration has weathered a firestorm of protest over what Democrats and some Republicans say is a violation of U.S. law prohibiting such monitoring without a warrant from a special, secret court.
The Bush administration has argued the president was given broad authority to fight the war on terror when Congress authorized him to “use all necessary and appropriate force” against “those nations, organizations, or persons he determines” responsible for the Sept. 11, 2001, attacks.
“The use of signals intelligence – intercepting enemy communications – is a fundamental incident of waging war,” Attorney General Alberto Gonzales wrote in the Wall Street Journal on Monday, in defense of the program.
Some lawmakers and policy analysts have discounted that interpretation.
Still, in order to placate opposing members of Congress, the White House had considered amending the Foreign Intelligence Surveillance Act of 1978 – the legislation opponents say Bush violated – to cover the current NSA operation. But, says Babbin, that idea was abandoned because it would require the administration to divulge more details about the program – details administration officials believed could again be leaked to the press.
Federal intelligence officials have publicly expressed similar concerns about leaks. Porter Goss, director of the Central Intelligence Agency, told a Senate committee earlier this month unauthorized leaks of CIA operations have caused “severe damage,” adding that journalists who report them should be subject to questioning by a grand jury.
Regarding recent and past disclosures, Goss – a former chairman of the House Intelligence Committee – said “the damage has been very severe to our capabilities to carry out our mission.”
“It is my aim and it is my hope that we will witness a grand jury investigation with reporters present being asked to reveal who is leaking this information,” he told members of the Senate intelligence panel. “I believe the safety of this nation and the people of this country deserves nothing less.”
Babbin suggested past and present unauthorized disclosures of classified information may even be connected to the Senate intelligence panel’s No. 2 man: Sen. John Rockefeller, D-W.Va.
Babbin told WorldNetDaily that Rockefeller – along with Sens. Dick Durbin, D-Ill., and Ron Wyden D-Ore. – “is the subject of a criminal referral as a result of a leak of a very highly classified, top-secret satellite program” – a probe he believes is ongoing that was launched by the Justice Department the first week of December 2004.
“The formal request for a leaks investigation would target people who described sensitive details about a new generation of spy satellites to the Washington Post, which published a Page 1 story about the espionage program Saturday [Dec. 11, 2004],” the Associated Press reported on the probe at the time. The Post reported the National Reconnaissance Office, which operates U.S. spy satellites, made the request.
And, Babbin said, while there’s no “hard evidence” to indicate Rockefeller was involved in leaking the NSA program details to the Times, he adds that sources within the intelligence community have indicated their suspicions to him, though he declined to identify them.
Rockefeller’s office did not respond to repeated phone calls and e-mail requests for comment. The Justice Department also did not respond to a request to confirm or deny details regarding the criminal referral.
“I do … think it is very revealing when you have the attorney general of the United States answering written questions to [Pennsylvania Republican Sen.] Arlen Specter the week before the hearings, and says one of the reasons [the administration] did not go to the Hill and ask for legislation to modify the Foreign Intelligence Surveillance Act is that they feared any further disclosure to Congress would be leaked,” Babbin told WND. “I think then Congress has a very big problem there because they are unable to do their constitutional oversight function of the executive branch.”
Added Babbin: “If you can’t tell the Hill what you’re doing, you’ve got a constitutional problem.”
For his part, Rockefeller – one of a very few members of Congress briefed on the NSA spy program – said in a Dec. 19, 2005, statement that, when he first learned of the surveillance program on July 13, 2003, he immediately expressed “serious concerns about the nature of the program as well as Congress’ inability to provide oversight” to the White House.
“The record needs to be set clear that the administration never afforded members briefed on the program an opportunity to either approve or disapprove the NSA program,” he said. “The limited members who were told of the program were prohibited by the administration from sharing any information about it with our colleagues, including other members of the intelligence committees.”
Rockefeller maintains he voiced concerns about the program to Vice President Dick Cheney, specifically “that the limited information provided to Congress was so overly restricted that it prevented members of Congress from conducting meaningful oversight of the legal and operational aspects of the program.”
Said Rockefeller: “These concerns were never addressed, and I was prohibited from sharing my views with my colleagues.”
As to the overall legality of the NSA program, experts say Bush was operating within constitutional and statutory parameters.
“Gathering signal intelligence has been an important constitutional power exercised by the president since President Washington first intercepted signal intelligence from the British,” says former Bush White House special adviser Ron Christie, author of “Black in the White House: Life Inside George W. Bush’s West Wing.”
“President Lincoln intercepted telegraph cables during the Civil War, and President Wilson ordered all cable communication from America and Europe to be intercepted,” he said. “In the war against terrorism, President Bush is lawfully carrying out his duties as commander in chief to institute a narrow intercept of foreign intelligence information against terrorists abroad or within the United States who seek to harm us.”
Retired federal Judge Charles Pickering told WorldNetDaily focus on the NSA operation is not only too political, it is keyed into the wrong issues.
“I haven’t heard anyone seriously question the fact that the president has the constitutional authority” to order the NSA surveillance program, said Pickering, author of “Supreme Chaos: The Politics of Judicial Confirmation & the Culture War.”
“The only argument I’m hearing is whether or not the president complied with congressional statutes. So it’s really a tug-of-war between the executive and legislative branch as to who gets to call the shots,” he said.
“I don’t want Big Brother snooping in on my telephone calls,” said the former federal judge, “but I sure do want Big Brother to protect me from terrorists.”
“The irony here is that for four years Congress has known this is going on, and not one peep until the New York Times ran an article,” said Pickering. “Unfortunately, everything – confirmation of judges, the conduct of the war on terror – has become so politicized, it’s hard for the American people to get a straight answer.”
As to leaks, Babbin – writing Monday in the American Spectator, said he has repeatedly stated “that Congress is the source of leaks of many if not most of the top-secret information about the war on terror that has reached the press. The leak of the CIA terrorist detention centers in Europe and Asia probably came from the CIA. But the list of congressional leaks is long. Too long.
“Every indication is that the NSA program leak … also came from the Hill,” he continued. “Leak after leak … has reached a level that the executive branch cannot trust Congress to keep those secrets.”