The AP reports that the DoJ is going to investigate the Underwatergate "leak" to the New York Times. Many of course wish they would investigate the program instead, but since the AG was involved in it, that's difficult.

But this puts forward the complex problem of how to deal with, and stop, illegal classified programs. Because they are classified, they lack many of the checks and balances that exist for other government operations. Indeed, it is suspected that many programs get classified entirely or in part in order to avoid scrutiny.

In theory, one does not have to obey an illegal order. But in practice it takes a lot of guys to defy one. And it's hard to be certain an order is illegal when your superiors and their lawyers are insisting it is.

Senator Rockefeller is one of the people elected to provide oversight over intelligence activities, and he was told about the NSA spying. He was also told he could not consult with the advisors he needed on technical and legal issues to make proper judgements. This is an unacceptable situation. There must be checks and balances.

I don't like secret courts, but they are better than having no courts at all. There should be a secret court with auditing power over all secret activities of the government. Anybody should be able to file a complaint with this court that the government is engaging in illegal secret activities. The identity of the whistleblower must be fully protected, as well. The court should have full power to investigate any and all classified and secret programs to find out if they are engaging in illegal activity. And it should have full power and duty to punish illegal activity by anybody, including the President. (Judgements against the President and other top officials would be subject to appeal by the Supreme Court.)

Furthermore, when the court finds wrongdoing, details of this wrongdoing should be declassified as soon as possible and as much as possible. Even at risk to national security. That's because illegal covert activities by the government are a greater risk to the security of the people and the nation than most disclosures are.

How much auditing of secret programs does the GAO get to do? Can its role be expanded? This seems more a judicial idea than a congressional one but there's no reason that auditing of illegal secret activity should not go on in all branches, of all branches.

Absent such a process, the leak to the New York Times is the only answer. The whistleblowers who revealed this program did the right thing for the nation, and should be rewarded, not punished.