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Published: Saturday, 12/24/2005

Fixing the leak

FINALLY, some good may come from the Valerie Plame kerfuffle - if Attorney General Alberto Gonzales has the stones to do what's right.

A grave crime was exposed Dec. 16 when New York Times reporters James Risen and Eric Lichtblau published a story revealing President Bush authorized the National Security Agency to listen in on conversations between al-Qaeda suspects abroad and people in the United States without first obtaining a warrant.

"We're seeing clearly now that [President] Bush thought 9/11 gave him license to act like a dictator," wrote Newsweek's Jonathan Alter.

But the scandal was not the program Mr. Risen and Mr. Lichtblau wrote about. The scandal is that they wrote about it.

The intercept program has uncovered al-Qaeda plots, and public exposure cripples it, Air Force Gen. Michael Hayden said at a news conference Monday. Now deputy director of National Intelligence, General Hayden was head of the NSA when the intercept program was started.

Among the plots uncovered was one by Iyman Faris, a naturalized U.S. citizen living in Ohio, to blow up the Brooklyn Bridge, sources say. Faris discussed the plan on the phone with Khalid Shaikh Mohammed, then al-Qaeda's operations officer.

Mr. Alter and others in the news media assert the intercept program is illegal, and unprecedented. It is neither.

"The Department of Justice believes, and the case law supports, that the President has the inherent authority to conduct warrantless physical searches for foreign intelligence purposes," said Jamie Gorelick, deputy attorney general under President Clinton, in testimony to the Senate Intelligence Committee on July 14, 1994.

"It's important to understand that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the President in carrying out his foreign intelligence responsibilities," she said.

Mr. Risen and Mr. Lichtblau chose not to mention this story, which appeared in the New York Times on Nov. 7, 1982: "A federal appeals court has ruled that the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents."

Even the feckless Jimmy Carter issued on May 23, 1979, an executive order authorizing the attorney general "to approve electronic surveillance to acquire foreign intelligence information without a court order."

Mr. Carter cited as the authority for issuing his order the Foreign Intelligence Surveillance Act Congress had passed the year before, and which Mr. Alter and other hyperventilating hypocrites claim Mr. Bush has violated.

Why would Mr. Carter think that? Perhaps he read - as evidently Mr. Alter hasn't - section 1802 of the FISA law, which says: "the President, through the Attorney General, may authorize electronic surveillance without a court order to acquire foreign intelligence information."

In a 2002 case, the special court that hears appeals in FISA cases said the President "did have inherent authority to conduct warrantless searches to obtain foreign intelligence information."

The news media didn't think warrantless electronic surveillance was a threat to our liberty when Democratic presidents authorized it.

It is despicable, but not illegal, for the news media to publish vital national secrets leaked to them. But the leakers have committed a felony.

Those who have demanded severe punishment for whoever it was who told reporters that Valerie Plame worked at the CIA have been remarkably forgiving about who leaked the existence of the NSA intercept program, which - like the earlier leak of secret CIA prisons for al-Qaeda bigwigs and unlike the Plame kerfuffle - has done serious harm to our national security.

But fortunately, by clapping New York Times reporter Judith Miller in irons until she talked, overzealous special prosecutor Patrick Fitzgerald has set a valuable precedent.

Attorney General Gonzales should subpoena Mr. Risen and Mr. Lichtblau, and have them cited for contempt of court if they do not disclose their source or sources. Maybe they could share Judy Miller's old cell.

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