[Alberta's Child]

Think of it this way . . . If I am standing in line at a bank and I recognize someone behind me who I know to be a notorious bank robber who is probably casing this bank out to rob it, am I breaking any laws by pointing out to him that there are security cameras all over the place?

By your reasoning, it is legal to "leak" any covert operation that is being conducted in accordance with the law.

No. You have to take it one step further. My point is that the "covert" operation can't possibly be truly "covert" if it has been challenged and discussed at length in a court of law. The fact that 99.999% of the U.S. population had no idea this NSA program existed does not necessarily make it "covert" -- it just makes us ignorant or blissfully unaware.

The fact that one of the earliest (and unsuccessful) challenges to the NSA program involved a specific defendant (whose name is part of the U.S. Supreme Court case that he eventually lost) and a specific security-related issue tells me that there is nothing classified about what the NSA has been doing. There are mechanisms in U.S. law to deal with classified information in criminal court cases (e.g., having the case heard in a special court outside public view), and the fact that these mechanisms were not put into motion in the 1979 case is a very telling sign.

[Joe 6-pack]

The program itself may not be classified information; however, its targets may be.

To publicly state (or publish) that the FBI collects evidence in internal investigations of subversion or espionage is a, "duh," moment...a restatement of the obvious (whether or not it is widely known).

On the other hand, if in the course of say, the HANSON investigation, it had been published that, "The FBI has gathered wire, fingerprint, and video surveillance evidence against Robert HANSON," this just might have constituted a disclosure of classified information, even if it was common knowledge that, "The FBI gathers evidence in espionage investigations."

That the NSA collects signals intelligence is another, "no duh." The disclosure of their targeting criteria, methods, techniques and results for a given operation, on the other hand, is not so innocent.

[Cboldt]

The fact that one of the earliest (and unsuccessful) challenges to the NSA program involved a specific defendant (whose name is part of the U.S. Supreme Court case that he eventually lost) and a specific security-related issue tells me that there is nothing classified about what the NSA has been doing.

The general capabilities of the NSA are public, and have been for years due to Senate hearings and court cases.

But the specifics of the capabilities, as well as the intelligence gathered, is classified and protected. One term of art in the law is "methods and procedures." An old method, for example, was a spike microphone. Disclosing the existence and/or capability enabled by a spike microphone would have been a violation.

I agree with your later conclusion, NYT is not in violation of a statute. NYT has disclosed a policy exapansion. THis does not provide any specifics relating to capability or methods for carrying out the policy.

There are mechanisms in U.S. law to deal with classified information in criminal court cases (e.g., having the case heard in a special court outside public view), and the fact that these mechanisms were not put into motion in the 1979 case is a very telling sign.

If you are thinking of the Jabara cases, some of the evidence was taken in Camera - not even provided to Jabara.

The NSA intelligence gathering operation is described sufficiently for present purposes in Halkin, 598 F.2d at 4, as follows (footnote omitted):

A brief description of NSA and its functions is appropriate. NSA itself has no need for intelligence information; rather, it is a service organization which produces intelligence in response to the requirements of the Director of Central Intelligence. Intelligence Activities: Hearings Before the Select Comm. to Study Governmental Operations with Respect to Intelligence Activities of the U. S. Senate, 94th Cong., 1st Sess. Vol. V at 9 (1975) (Hearings). The mission of the NSA is to obtain intelligence from foreign electrical communications. Signals are acquired by many techniques. The process sweeps up enormous numbers of communications, not all of which can be reviewed by intelligence analysts. Using "watch-lists"-lists of words and phrases designed to identify communications of intelligence interest-NSA computers scan the mass of acquired communications to select those which may be of specific foreign intelligence interest. Only those likely to be of interest are printed out for further analysis, the remainder being discarded without reading or review. Intelligence analysts review each of the communications selected. The foreign intelligence derived from these signals is reported to the various agencies that have requested it (Hearings at 6). Only foreign communications are acquired, that is, communications having at least one foreign terminal (Hearings at 9).

http://www.freerepublic.com/focus/f-news/1550960/posts?page=35#35 <- work back from there