Who told secrets on domestic spying? Probe to aim high

WASHINGTON — The Justice Department disclosed Friday that it is investigating who leaked classified information about President Bush's top-secret domestic-spying program, paving the way for a potentially contentious criminal probe that reaches high into the White House, Congress and the courts.

Several U.S. officials said the investigation will be conducted by FBI agents specially trained in probing national-security matters and counterintelligence. The officials said the probe will focus primarily on disclosures in The New York Times, which reported two weeks ago that Bush had authorized the National Security Agency (NSA) to monitor international telephone calls and e-mail of U.S. citizens and residents without court-approved warrants.

As in the politically charged leak investigation into who outed CIA agent Valerie Plame, witnesses and potential targets of any criminal prosecution — including journalists — likely will be brought before a federal grand jury, which ultimately would vote on whether to issue indictments, U.S. officials said.

The officials said the level of sensitivity surrounding the current probe already is extraordinary — and likely to intensify — because of the presumption that few government officials had access to details of the program. Most potential witnesses are high-ranking officials in White House or other administration posts; in the NSA or other intelligence agencies; or in top-level posts in Congress or the Foreign Intelligence Surveillance Court.

The Justice Department's decision to reveal the opening of a criminal investigation is rare, particularly given its highly classified nature. Deputy White House press secretary Trent Duffy said in Crawford, Texas, on Friday that Justice "undertook this action on its own" and that Bush learned about it from senior staff earlier in the day.

Leak investigations generally begin with a referral to the Justice Department by the agency in question — in this case the NSA — which prompts a preliminary inquiry by prosecutors. The NSA would not say whether it asked for the investigation, but a Justice Department official indicated his department did not initiate it.

The opening of a criminal investigation signals that prosecutors think laws barring disclosure of classified information were broken.

It is unclear whether Attorney General Alberto Gonzales will recuse himself from the inquiry. He was White House counsel when Bush signed the executive order authorizing the NSA to spy on conversations taking place on U.S. soil, and he has been one of the administration's point men in arguing that the president has the constitutional authority to do so.

The case is the most recent in a series of clashes between journalists and the Bush administration, which has aggressively enforced restrictions on classified information and has complained frequently about media disclosures related to terrorism or the Iraq war.

This year, a grand-jury investigation by special counsel Patrick Fitzgerald into the disclosure of Plame's identity resulted in the jailing of New York Times reporter Judith Miller for refusing to testify and in criminal charges against vice-presidential adviser I. Lewis "Scooter" Libby. That investigation continues. Miller has since left The New York Times; Libby quit.

In another recent case, the CIA General Counsel's Office in November notified the Justice Department that classified information had been disclosed in a Washington Post report on the existence of secret prisons in Eastern Europe and elsewhere. Justice officials declined to comment Friday on whether that referral will trigger a criminal investigation.

News of the domestic-spying program by the NSA, normally restricted to eavesdropping overseas, drew criticism from lawmakers and civil-liberties advocates and helped derail full reauthorization of the USA Patriot Act, which allows broader investigative powers against terrorists.

Senate Judiciary Committee chairman Arlen Specter, R-Pa., has vowed to hold hearings on the NSA program; other Republicans have demanded a congressional investigation into the leak.

The spying program angered Foreign Intelligence Surveillance Court judges, who govern clandestine surveillance within the United States. One panel member, James Robertson, resigned from the secret court in protest of Bush's authorization of warrantless surveillance.

After the spying story was published Dec. 15, Bush and other officials publicly acknowledged the program's existence, described its details and argued it was legal and necessary in a time of war.

The New York Times has said it held the story for a year after the administration claimed its disclosure would harm national security.

The published story relied on "nearly a dozen current and former officials," the newspaper said. Times spokeswoman Catherine Mathis declined to comment Friday.

The American Civil Liberties Union (ACLU), which has argued that a special prosecutor should be appointed to determine if Bush violated federal wiretapping laws, called the leak probe an unwarranted attack on whistle-blowers.

"Attorney General Gonzales is cracking down on critics of his friend and boss," ACLU Executive Director Anthony Romero said.

A federal law-enforcement official denied that politics would impede investigators.

"You never start an investigation knowing where it is going to take you," the official said, speaking on the condition of anonymity. "But [the Justice Department and FBI] are bound by the fact that a lot of this is classified and [they] simply cannot discuss it."

Compiled from the Los Angeles Times, The Washington Post, The Associated Press and Reuters