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Now:
"As you know, the Department of Justice, with the assistance of the Federal Bureau of Investigation ("FBI"), presently is investigating the unauthorized disclosure of classified information regarding the Presidentially-authorized National Security Agency ("NSA") program involving the interception of international communications into and out of the United States of persons linked to al Qaeda or related terrorist organizations (referred to herein as the 'Terrorist Surveillance Program')." - Steven Tyrrell, Chief, DOJ Criminal Division Fraud Section, 12/31/2008 to Thomas Tamm
And then:
QUESTION: ... You said that Valerie Plame's identity was classified but you're making no statements as to whether she was covert. Was the leaking [of] her identity, of and in itself, a crime?
MR. FITZGERALD: Okay, I think you have three questions there. I'm trying to remember them in order. I'll go backwards.
And all I'll say is that if national defense information which is involved because her affiliation with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act. That is a difficult statute to interpret. It's a statute you want to carefully apply. There are lots of -- I think there are people out there who would argue that you would never use that to prosecute the transmission of classified information because they think that would convert that statute into what is in England, the Official Secrets Act.
Let me back up. The average American may not appreciate that there's no law that specifically just says if you give classified information to somebody else it is a crime. There may be an Official Secrets Act in England but there are some narrow statutes and there's this one statute that has some flexibility in it.
So there are people who should argue that you should never use that statute because it would become like the Official Secrets Act. I don't buy that theory, but I do know you should be very careful in applying that law because there are a lot of interests that could be implicated in making sure that you pick the right case to charge that statute.
- Special Counsel Patrick Fitzgerald, 10/28/2005
http://www.usdoj.gov/usao/iln/osc/documents/2005_10_28_fitzgerald_press_conference.pdf
In the end, Fitzgerald determined that the unquestionably damaging, personal-revenge-motivated Valerie Plame covert spy outing nevertheless was not the "right case" to charge Libby, Rove, Armitage, et al, with violations of the (narrow, somewhat flexible as to simple classified information exposure) WWI-era Espionage Act statute, with regard to their conversations with the media about a CIA employee and the CIA's Niger uranium mission. And yet Steven Tyrrell, of the same DOJ, apparently believes that the undetailed, whistleblowing tip to the media by Thomas Tamm about unapparently unlawful government spying does represent such a "right case" and merits such a charge.
From the Isikoff Newsweek cover story cited by Tyrrell:
"The [NSA] program was in fact a wide range of covert surveillance activities authorized by President Bush..."
But note how misleadingly and deceptively Steven Tyrrell's official DOJ letter to Tamm strictly adheres to the purposeful misdirection of the administration's cover story that the limited (and Goldsmith OLC-blessed*) "TSP" activities are the only domestic spying activities at issue or whose existence was exposed by the New York Times in 2005.
[*This fact and its source, as admitted on the record by the administration, with further context, is detailed here: http://letters.salon.com/opinion/greenwald/2008/12/22/cheney/permalink/77875e0234fbad265c6f56e361a755de.html]
One of the key players in the DOJ - until 2007, and as mentioned in the Newsweek article - with regard to FISA applications and interactions with the FISA Court was James Baker, of the Office of Intelligence Policy and Review, where Tamm also worked for a time. Baker effectively blew the whistle to the FISCourt on 'bleed over' of information from the unwarranted aspects of the NSA's domestic spying into regular FISA applications at least twice, but because Baker had the trust of the court he was useful to the administration and was retained in that role. Baker's concerns probably helped alert Thomas Tamm to the contortions in the normal FISA application process that the unwarranted spying had caused (the details of which Tamm, unlike Baker, apparently did not learn).
James Baker made clear at a public forum last March (2008) that the then-proposed FISA Amendments Act (replacing the temporary Protect America Act) encompassed "much broader" domestic surveillance authority than whatever the limited-hangout "Terrorist Surveillance Program" operation entailed.
Again, the only "publicly acknowledged" (by the administration) unwarranted domestic spying program is the so-called (post-exposure) "Terrorist Surveillance Program." The limited "TSP" program apparently primarily involves collection of stored emails from U.S.-located ISPs, and, significantly, was not the reason for the March, 2004 hospital showdown between Ashcroft/Comey and Bush/Cheney. An August, 2007 letter from AG Gonzales to the Senate states flatly that Goldsmith's 2003/2004 OLC review had okayed, as-was, whatever activities the "TSP" encompassed (source linked above, in my most recent preceding comment).
And yet, as forewarned by the expert James Baker, the United States Congress acted in July, 2008 to broaden beyond the publicly-acknowledged "TSP" the domestic spying activities of the NSA - apparently authorizing activity beyond that submitted to the FISA Court pre-ProtectAmericaAct, including reinstating domestic spying activities that Comey's 2004 principled stand had successfully ended - by passing the FISA Amendments Act.
P.S. (From the same 2005 press conference)
MR. FITZGERALD: Okay. I don't know, you know, sort of when you stop beating your wife. I have read -- one day I read that I was a Republican hack, another day I read I was a Democratic hack, and the only thing I did between those two nights was sleep. I'm not partisan; I'm not registered as part of a party and I'll leave it there.
