'I'd Be Very, Very Scared Right Now'

J$P Instant Transcript! Attorney Mark Smith on the legal ramifications of the NSA leak.

From Studio B, December 30 2005:

RICK FOLBAUM [FOX NEWS]: Well two weeks after the New York Times first published news of the Bush administration's secret spying program, the Justice Department now says it wants to find out who tipped off the newspaper. Prosecutors also looking into whether anyone broke the law in the process. The investigation comes on the heels of a request by the National Security Agency, which conducted the warrantless searches on behalf of the President. Joining us here in Studio B is Mark Smith. He's a constitutional attorney, and he's here to help us understand this. And as I said to you, it's kind of funny that the news of this investigation was itself leaked. So we have a leaked story about a leak investigation, another one here, and what's the gist? This is to try to find out exactly who told the New York Times that this program was in place, is that the idea?

MARK SMITH: Yeah. You know it's interesting, Rick, you're right. If Washington DC were a ship, it would already be sunk with all the leaks that come out of that city. But in this case though, this is a special case. Because what we're talking about here is not just any old leak about political information, about a particular political speech that somebody may be given. What we're talking about here was a highly confidential, top-secret program that the President was using to defend this country against Al-Qaeda and the like. This is very serious business, because at the bottom line, before anybody can get access to top-secret classified information of the type that this information clearly is, you have to sign very clear and express documents that say you understand that you're going to be given this top-secret information. You will do nothing with it; you will tell nobody about it. And if you do, you can go to jail. So the only people that would have known about this program, Rick, would have been people that were bound by this legal obligation. And the fact that any of them told anybody outside of the circle of information is a crime.

FOLBAUM: Critics of this program say that it is itself illegal, that the President, for him to order this surveillance without first going to the FISA Court and getting a court order, getting a warrant and go through those channels, that that was an illegal thing to do. What about somebody on the inside, perhaps--we're talking about the leaker, we don't know exactly who that is yet--but someone who him or herself said, you know what, this is not a legal program. This is illegal. I need to be in effect a whistle-blower about this, and let people know about it.

SMITH: Sure, and there's a long history of people who try to claim some sort of whistle-blowing defense to say: Hey, Rick, you know what, I was doing what I thought was right. I saw something that I didn't like. I wanted to let the world know to prevent it from happening. The fact is, that is not a legal defense. That does not exempt you from the legal consequences of your action. Now politically if it turns out somebody leaked this information, and they prevented something horrific from happening, which doesn't appear to be the case in this situation--


SMITH: --then potentially, politically, sort of in the public eye, that could dissuade somebody from prosecuting you. Because people would say: Hey, he was a good guy, so we're going to let him slide. But in a case like this, where it's at best you could say a gray area between what the President should and should not have done, the fact is, anybody who leaked this information to the New York Times, if I were them, I'd be very, very scared right now, about somebody finding out that I did it, and then putting me in jail for a very, very long time.

FOLBAUM: Constitutional Attorney Mark Smith, Happy New Year. Thanks very much for coming in.

SMITH: Happy New Year, Rick.

posted: Fri - December 30, 2005 at 04:04 PM       j$p  send