From The Hill, Nov 6 2003, the full text of the memo from the office of Sen. Jay Rockefeller (D-WVa.) on setting a strategy for pursuing an independent investigation of pre-war White House intelligence dealings on Iraq” [with some of my emphases added]:

We have carefully reviewed our options under the rules and believe we have identified the best approach. Our plan is as follows:

1) Pull the majority along as far as we can on issues that may lead to major new disclosures regarding improper or questionable conduct by administration officials. We are having some success in that regard.

For example, in addition to the President’s State of the Union speech, the chairman [Sen. Pat Roberts] has agreed to look at the activities of the office of the Secretary of Defense, Rumsfeld, Wolfowitz, as well as Secretary Bolton’s office at the State Department.

The fact that the chairman supports our investigations into these offices and cosigns our requests for information is helpful and potentially crucial. We don’t know what we will find but our prospects for getting the access we seek is far greater when we have the backing of the majority. [We can verbally mention some of the intriguing leads we are pursuing.]

2) Assiduously prepare Democratic ‘additional views’ to attach to any interim or final reports the committee may release. Committee rules provide this opportunity and we intend to take full advantage of it.

In that regard we may have already compiled all the public statements on Iraq made by senior administration officials. We will identify the most exaggerated claims. We will contrast them with the intelligence estimates that have since been declassified. Our additional views will also, among other things, castigate the majority for seeking to limit the scope of the inquiry.



The Democrats will then be in a strong position to reopen the question of establishing an Independent Commission [i.e., the Corzine Amendment.]

3) Prepare to launch an independent investigation when it becomes clear we have exhausted the opportunity to usefully collaborate with the majority. We can pull the trigger on an independent investigation of the administration’s use of intelligence at any time. But we can only do so once.

The best time to do so will probably be next year, either:

A) After we have already released our additional views on an interim report, thereby providing as many as three opportunities to make our case to the public. Additional views on the interim report (1). The announcement of our independent investigation (2). And (3) additional views on the final investigation. Or:

B) Once we identify solid leads the majority does not want to pursue, we would attract more coverage and have greater credibility in that context than one in which we simply launch an independent investigation based on principled but vague notions regarding the use of intelligence.

In the meantime, even without a specifically authorized independent investigation, we continue to act independently when we encounter footdragging on the part of the majority. For example, the FBI Niger investigation was done solely at the request of the vice chairman. We have independently submitted written requests to the DOD and we are preparing further independent requests for information.

SUMMARY: Intelligence issues are clearly secondary to the public’s concern regarding the insurgency in Iraq. Yet we have an important role to play in revealing the misleading, if not flagrantly dishonest, methods and motives of senior administration officials who made the case for unilateral preemptive war.

The approach outlined above seems to offer the best prospect for exposing the administration’s dubious motives.

I mention those only in the event Jay Rockefeller turns out to be the NSA leaker, as the American Spectator’s Jed Babbin seems to believe.

You know—be prepared and all that.

From the National Ledger:

CIA director Porter Goss is telling anyone that cares to listen that leaks about the NSA’s international terrorist surveillance program and other intelligence activities have severely damaged America’s security.

So who is the leaker?  Who is gabbing with the NY Times?  Jed Babbin believes it may be Jay Rockefeller.

Hugh Hewitt reports:

The American Spectator’s Jed Babbin was on John Batchelor’s radio show yesterday, and stated that the intelligence community believes West Virginia Senator Jay Rockefeller is the leaker who illegally supplied the New York Times with the details of the NSA program.

Given that the CIA’s Porter J. Goss stated emphatically that the leak had done very serious damage to the United States, if Rockefeller is a suspect, he should be hauled before a Grand Jury ASAP.

When the crime was bribery (Abscam) no one protested that a sitting U.S. Senator ought not to be a target.

If the crime is much more serious –and this is– purported good intentions should not shield the suspect.

Has any member of the press asked Rockefeller point blank if he’s the law breaker yet?

Hey there’s a thought.  It’s an easy question.

Glenn Reynolds sarcastically chimes in:  No doubt the New York Times will be calling for a criminal investigation, as it did in the Plame matter.

Wingnut fantasies?  Could be.  But Rockefeller was in the loop.  And for what it’s worth, I’m unaware of any NSA member who’s authored a strategy memo that essential calls for a plan to gin up an appearance of impropriety against the current administration, even though the pretense may be false or strained. 

To be fair to Rockefeller, though, the fact that the intelligence community believes him to be the leaker means he almost certainly cannot be…

Meanwhile, the Corner, particularly Andrew McCarthy and Mark Levin, are keeping on the NSA “domestic spy” story, whose leaks are becoming so self parodic that Time is already trumpeting AG Gonzales’ testimony—days in advance of his testimony.

But nevermind that.  Much more legally interesting is this 2000 opinion rendered by the Clinton Justice Department, entitled: “SHARING TITLE III ELECTRONIC SURVEILLANCE MATERIAL WITH THE INTELLIGENCE COMMUNITY [via Andrew McCarthy, who excerpts the following portions]:

[I]n extraordinary circumstances electronic surveillance conducted pursuant to Title III may yield information of such importance to national security or foreign relations that the President’s constitutional powers will permit disclosure of the information to the intelligence community notwithstanding the restrictions of Title III. . . . [T]he Constitution vests the President with responsibility over all matters within the executive branch that bear on national defense and foreign affairs, including, where necessary, the collection and dissemination of national security information. Because ”t is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation,” Haig, 453 U.S. at 307 (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)), the President has a powerful claim, under the Constitution, to receive information critical to the national security or foreign relations and to authorize its disclosure to the intelligence community. Where the President’s authority concerning national security or foreign relations is in tension with a statutory rather than a constitutional rule, the statute cannot displace the President’s constitutional authority and should be read to be “subject to an implied exception in deference to such presidential powers.” Rainbow Navigation, Inc. v. Department of the Navy, 783 F.2d 1072, 1078 (D.C. Cir. 1986) (Scalia, J.). We believe that, if Title III limited the access of the President and his aides to information critical to national security or foreign relations, it would be unconstitutional as applied in those circumstances.

Accordingly, law enforcement officers who acquire information vital to national security or foreign relations would be obliged to convey it to the appropriate superiors (e.g., the United States Attorney), who would report it to the Attorney General or Deputy Attorney General, who would in turn report it to the President or his designee. The President (or appropriate officials acting on his behalf, such as the Attorney General) would be authorized to share such crucial information with his executive branch subordinates, including intelligence community officials, to the extent necessary to discharge his constitutional responsibilities. Of course, this constitutional authority should not be exercised as a matter of course. Rather, it should only be exercised in extraordinary circumstances and with great care, and only where disclosure is necessary to the discharge of the President’s constitutional responsibilities over matters of national security or foreign affairs. Even then, any contemplated exercise of this authority would necessitate careful consideration of the intrusion on privacy that might result.

Nor do we believe that disclosure of Title III information in these circumstances would violate the Fourth Amendment. Even if a disclosure of Title III information (as distinct from the seizure of the information) could otherwise violate the Fourth Amendment in some circumstances–a matter we do not address–we do not believe that this is an impediment to disclosure of Title III information of serious foreign affairs or national security import to the President. As we noted in our 1997 grand jury memorandum, the Supreme Court has recognized in other contexts that government actions overriding individual rights or interests may be justified where necessary to prevent serious damage to the national security or foreign policy of the United States. See Haig, 453 U.S. at 309 (invoking the principle that the Constitution’s guarantees of individual rights do not make it a “suicide pact”); American Communications Ass’n v. Douds, 339 U.S. 382, 408-09 (1950) (to the same effect). We consider it very unlikely that the Court would conclude that the Fourth Amendment prohibits the disclosure of information vital to the national security or foreign relations of the United States.