Real World Graduation, Question 97: Domestic Spying

RealWorldGraduation_Question_97_Domestic_Spying   <– PDF

Consider the following sequence of events. On 11 Sep 2001, adherents of Osama bin Laden hijacked U. S. airliners and flew them into the World Trade Center Buildings in New York and the Pentagon in Washington DC.  All of the following information was taken from newspaper and magazine articles, but, for the sake of argument, assume all of what follows is true.  Once the federal government figured out who was behind the attacks, it engaged in a series of actions to combat terrorism.  One of those actions was that President George W. Bush, in 2002, signed a secret directive authorizing the National Security Agency (NSA) to conduct email searches and make recordings of phone calls within the U. S. without a warrant, so long as one end of the party was overseas.  Normally a warrant to conduct this kind of surveillance is required under the 1978 Federal Intelligence Surveillance Act (FISA).  Some government officials were concerned about the legality of the program (since it was authorized by presidential order instead of by Congress), and secretly provided information about the secret program to reporters working for the New York Times.  Because of the sensitive nature of the program, the New York Times agreed not to disclose its sources.  The administration learned about the disclosure of the program, and asked the New York Times not to publish the story.  The New York Times held off for about a year, but then went public with the information on 16 Dec 2005 [1].  The revelation led to debates in Congress, and a law was subsequently passed in Aug 2007 allowing the NSA to continue to perform this function.  Prior to the passage of the new law, the President withdrew the authorization for it, according to a letter by Attorney General Alberto Gonzales, 17 Jan 2007.  It was later learned that Thomas M. Tamm, an employee of the Justice Department, was one of the people who revealed the NSA program to the New York Times reporters in 2004, although he was not directly involved in its execution (he was never “read into” the NSA program) [2].  Apparently he learned about it indirectly while working on unrelated programs in and around the same offices where the NSA surveillance was being conducted.  Mr. Tamm subsequently lost his job at the Justice Department, apparently due to an unrelated issue.  Although his house was searched, Mr. Tamm has not been arrested.  Assuming all of the preceding is true, what is likely to happen next?

a) James Risen and Eric Lichtblau, the reporters for the New York Times, will be arrested and tried for endangering national security.

b) The New York Times will be shut down for publishing a story that endangered national security.

c) Michael Isikoff, the columnist for Newsweek, who revealed the identity of the leaker, will be prosecuted for interfering in an investigation.

d) Thomas M. Tamm, the person who leaked the program to the New York Times, will be prosecuted for revealing the classified methods used by NSA to conduct domestic surveillance.

e) Both a) and d).

[1]        James Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers Without Warrants”, The New York Times, 16 Dec 2005.  See http://www.nytimes.com/2005/12/16/politics/16program.html?_r=1

[2]        Michael Isikoff, “The Fed Who Blew the Whistle”; Newsweek, 13 Dec 2008.  See http://www.newsweek.com/id/174601

(The answer is on p. 2 of the PDF.)

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