I'm all in favor of a special prosecutor to investigate the NSA leaks

Some (no links) have suggested that the same people who are wildly enthusiastic about the Plame investigation should be in favor of a special prosecutor charged with deciding if a crime was committed and, if so, by whom, when the NSA mass interception program was leaked. I'd love it if Bush appointed Ken Starr himself. Let's see how far he would get with attempts to get judges to hold the journalists who reported the story in contempt if they don't reveal their sources. How about trying to prosecute someone for reporting a crime ?

The cases are rather different. The fact that Plame worked for the CIA was irrelevant to the public debate. No one has even been able to decide if the leakers really thought they could cast doubt on Wilson's credibility or if they were trying to punish his wife for his misdeed. Release of that fact damaged US anti proliferation efforts. The fact was very specifically described as the sort of fact which must not be released even if Plame's latest posting was a few months late for the release to be a crime under the IIPA.

In contrast describing the NSA program is the sort of leak which is specifically protected by Whistle blower statutes. It is central to a national debate. In particular one side of that debate is the claim that the president is above the law. No more important debate is possible and the fact that the Bush administration has made this claim in other contexts and no one noticed makes it more important that it be debated. The New York Times suppressed did not report details of the program until today. Thus the original story did not tell al Qaeda anything useful to them. They don't care about warranted vs warrantless wire taps.

The latest story reports that there is something new and different about the program which makes it unlike pre FISA domestic spying. This story explains why the Bush administration did not just ask the FISA court for retroactive permission, since they were technically spying on everyone in order to find patterns in order to decide which communications to intercept. While the content of the latest story has been widely guessed in blogs, it might constitute a damaging release of information.

I think it is obvious that the New York Times is reporting details which it has had for years now and only now, because the Bush adminstration asked them to reveal at least enough to make it clear that their violation of the law was not completely pointless. If anyone is guilty of damaging national security, it is the person who caused the Times to adjust the level of detail which it released. I for one have no idea cough cough Karl Rove cough cough who that might be.

I doubt the courts will be very receptive to the idea that it is a crime to report classified information to inform the public of a crime but perfectly ok to report much more sensitive classified information to help the criminals justify their actions. I really wish that people who have a counterargument not tell it to me but rather tell it to the judge.