Did the NY Times Hurt National Security? 

Did the NY Times Hurt National Security?

Atrios has been very reasonably asking for one, just one reason to think the Times, in revealing Bush's warrantless searches on Americans, told terrorists anything they didn't already know.

Near total silence from Bush defenders, some of whom are calling "treason" on the Times. At a minimum they are saying nyah, nyah, just like the Plame imbroglio.

Orin Kerr has made one fairly sober attemptat answering Atrios's question (although he doesn't mention Atrios).

The more people abroad know that the NSA can easily watch their communications routed through the U.S., the less people will be willing to route their communications through the U.S. Cf. Bruce Hayden’s comment. No doubt it was a long-term priority of the NSA to ensure that lots of international communications traffic was routed through the U.S., where the NSA could have much better access to it. Indeed, Risen’s book more or less says this. The disclosure of the program presumably helps frustrate that objective.

The thing is, through no fault of Orin Kerr, this doesn’t touch on the controversial part of the program. It only explains why we’d keep secret the fact that we were monitoring calls that were routed through the US, but both placed by and received by people outside the US. As Kerr notes, these non-domestic wiretaps are not prohibited by FISA. If the program simply took advantage of foreigner-to-foreigner communications that happened to route through the country, there would be no criminal infraction, and probably no leak to discuss.

Rather, the controversy is about warrantless domestic wiretaps, which are obviously routed through the United States. If there’s a legitimate national security interest in keeping those wiretaps secret, I’m not aware of it.