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April 21, 2009

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Topsecretk9

- Yesterday I flagged the odd detail in the CQ story which claimed that Porter Goss of the CIA was obliged to sign off on a FISA application relating to a domestic criminal/counter-intelligence investigation. That seemed outy of place since the CIA is not allowed to involve itself in domestic law enforcement. The Times story makes no mention of Goss or the CIA.

There are plenty of stories out there that say Mueller was not available to they went to Goss -- which apparently is protocol.

clarice

Secrecy News which has provided for me the most reliable and detailed accounts of the case agasint the two former AIPAC officials has some thoughts about the leaks of the Harman tape http://www.fas.org/blog/secrecy/ :

[quote]What makes the quid pro quo allegation questionable is that neither side of the reported conversation seemed to need an inducement to act as described. Of all potential candidates for chair of the House Intelligence Committee (Harman, Hastings, Reyes), Harman's views have probably been closest to those of pro-Israel lobbyists. Their support of her was not in doubt. Nor did Rep. Harman require extraordinary incentives to be concerned about the prosecution of the former AIPAC officials. That case has drawn widespread criticism (including from Secrecy News) for its over-broad reading of the Espionage Act that would make even the receipt of classified information a crime.

Ironically, the single identifiable crime in this whole story is the unauthorized disclosure of the classified contents of an intelligence intercept to CQ, and then to the New York Times. While there is no categorical legal prohibition against all classified leaks, several specific categories of classified information are protected by statute and their release is a felony offense. Under 18 U.S.C. 798, one of those is the unauthorized disclosure of communications intelligence, like that gathered by NSA.[/quote]

narciso

Looked at it that way, the story makes no sense, so of course it would run and be circulated up and down the Journolist. The counterpart would actually be the case of CAIR, the political arm of Hamas, which actually has had militant elements, more directly tied to the Democrats. Of course
the Bureau for a time, actually had liason
with CAIR, yet they rarely has this kind of scrutiny. Of course,Lictblau and Miller, actually tipped off such an operation with the Holy Land Foundation;

mark

...the prosecution of the former AIPAC officials. That case has drawn widespread criticism (including from Secrecy News) for its over-broad reading of the Espionage Act that would make even the receipt of classified information a crime.

I read the indictment somewhat differently. All three counts allege, as the offense, not that the defendants merely RECEIVED the specified information, but that they conspired to communicate the information to persons not authorized to receive it. That, conspiracy to communicate the information, is a significant step beyond mere possession.

The indictment thus appears to be firmly based on the very plain meaning of the Espionage Act (18 USC 793). For example, the two key provisions which the defendants are charged with violating, stripped to their essentials, state:

(d) Whoever, lawfully having possession of ... information relating to the national defense ... willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

(e) Whoever having unauthorized possession of ... information relating to the national defense ... willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;

To me, that appears to be eminently reasonable as a law and the indictment appears to be an eminently reasonable interpretation of that law.

anduril

Apologies for the seeming schizophrenia.

clarice

It might pass muster if we had an Official Secrets Act like the UK, but we do not. As Gabriel Schonfeld pointed out early no one has ever been prosecutred for receiving such information orally--that is without a document with the classification stamp on it and that's because there's no way without that, one could have the requisite mens re for a crime.

I also think the Act has other aspects--for example one must prove an intent to harm US interests. At least the judge in this case seems to have so ruled.

anduril

There are several problems with that, clarice.

1. The difficulty with oral receipt of information is always proof of receipt or communication. In ordinary criminal conspiracies that proof is not infrequently available, but in prosecutions under the Espionage Act the players are usually smarter and take precautions--like, they don't yack on the phone. Cf., Tradecraft 101. The statute clearly provides for communication of information in any manner. After all, how dumb would it be to have an Espionage Act that criminalized only documentary communication of classified information but left oral communication wide open and legal?

2. Anyway, Schoenfeld's objection, as you've presented it, is beside the point--as I noted above. The defendants are NOT being charged with the RECEIPT of the information but for conspiring to COMMUNICATE the information after the receipt.

3. Mens rea can be proven in a number of ways. Yes, in an espionage related prosecution that can be difficult without documents bearing classification marks. On the other hand, if you have wiretap evidence that includes the defendants telling their co-conspirators (indicted or not) that they are aware that they're not supposed to have or communicate certain information that they are conspiring to communicate, that may well go a very long way to proving mens rea. In this case the prosecutors think they can do that.

4. The Act doesn't actually state that there must be "an intent to harm US interests." What it talks about--and this is part of what I stripped out in the interests of brevity--is: ...information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation... That "or" appears to me to be clearly disjunctive.

clarice

http://www.rollcall.com/news/34130-1.html
Harman says she's outraged she was taped, asserts that there is absolutely nothing wrong with Congressmen talking to advocacy groups and demands the entire transcript me made public.

(Roll Call also reports that Welch as been removed as councel in the case of Rich, a Republican Congressional aid who went to work for Abramoff.)

anduril

Addendum: The somewhat better argument, IMO, would be that the advantage to the foreign nation should be considered to be in relation to the US. However, I don't think that would pass muster because it's definitely not in the interests of the US to have its closely held information disseminated to foreign nations for use against still other foreign nations. To decriminalize such conduct could lead to severe foreign policy repercussions.

clarice

**transcript Be made public**

clarice

Schonfeld's point was one of proof..and as to proof Judge Ellis has made a number of rulings that I do not see the govt overcoming. Including this:

"Judge Ellis wrote with perhaps a hint of admiration that the defense “understandably characteriz[es] Leonard’s experience and expertise as ‘unsurpassed’.”

As noted in the new opinion, Mr. Leonard will testify for the defense on the “pervasive practice of over-classification of information,” “the practice of high level officials of disclosing classified information to unauthorized persons (e.g. journalists and lobbyists),” whether the classified information in this case qualifies for protection under the Espionage Act, and “whether… the defendants reasonably could have believed that their conduct was lawful.”
http://www.fas.org/blog/secrecy/2009/02/aipac_case-2.html

The govt he ruled could not count on even the stamp on the document to establish if something was properly classified to come within the meaning of the Act--He said this was "inadmissible hearsay" and by all accounts Leaonard, an acknowledged top expert on this issue is going to argue that the information involved doesn't even pass the firs hurdle--properly classified secrets.

Here's the opinion:
http://www.fas.org/sgp/jud/aipac/rosen021709.pdf

But we are ahead of ourselves in a sense..My point only is that I still believe these leaks are designed by people inside the govt (illegally leaking the info re the wiretap and probably mischaracterizing the content) in order to make it hard for Holder to dismiss the case.

Mark

Is the leak a warning to Congressional Dems about how they might be outed if they cross the Keepers of wiretap secrets?


Considering that Haim Saban has given money to just about all of them (including Biden, Rahm and HRC), they must be racking their brains right about now in trying to figure what they agreed to do for his donations.

Topsecretk9

(Roll Call also reports that Welch as been removed as councel in the case of Rich, a Republican Congressional aid who went to work for Abramoff.)

Hmmmmmm

anduril

Well, given that the wiretap was pursuant to a court order (FISC), she should save her outrage--whose fault was it that she called the target of the FISA? Moreover, based on the NYT story, that probably wasn't an advocacy group she was talking to, unless the target was the actual advocacy group (highly unlikely for various legal reasons). Possibly the FISA target was an employee of an advocacy group--in which case the advocacy group (lets say, AIPAC) would not itself have been the target and only the phones known to be used by the target would have been tapped. Or maybe the target was a foreign power. Or maybe the target was an USPER who was allowed to use a phone on the premises of a targeted foreign power. We simply don't know.

OTOH, if she believes she did nothing wrong, the best thing would be to make the transcript public. Since the leak was probably illegal, the government might be less than pleased to take that step. But that's part of why we criminalize dissemination of classified information to persons not authorized to receive it. Cf. "AIPAC case."

clarice

Do we know this wiretap was pursuant to FISC? Isn't it possible that it was undertaken as part of a criminal investigation and no part of the normal FISA program?

I am confused about this..

One report said that Mueller was the person who would normally have okayed this wiretap but he was unavailable so Goss did it and that it was done after notification to Hastert and Pelosi.

I wish I had more reliable information.

anduril

I'm guessing that the Goss approval was the last "sign off" before the FISA application was presented to the FISC. Since the Espionage Act has criminal provisions but, by its very nature, is concerned with foreign intelligence matters, there is overlap (in these post Gorelick "Wall" days), but that's OK. However, there are several good reasons why the government would prefer to go the FISA route if at all possible. The news accounts say "FISA," and I believe them, since the target of the FISA is reported to have been "covert" activity by a foreign power--which I take to be foreign intelligence activity.

My understanding re Hastert/Pelosi is that Hastert was informed and that, when Pelosi took over as Speaker, she was informed as part of the transition. However, it's possible that, as with some of the other programs, Pelosi was informed as Minority leader. I don't think the news reports say that it was done "after notification" to either or both of them, i.e., that the tap was initiated after they were notified. I suspect that they were notified once the tap was approved by the FISC.

clarice

Could be..BTW the Roll Call article indicates that Harman also denied having contact with anyone in the WH about the AIPAC case..there was a question as to whether she was parsing when she originally said she never contacted anyone at DoJ--and now her denial is broader.

anduril

clarice, re Leonard's expert testimony, that may well be strong evidence for the defense. However, my understanding from what I've read is that the wiretaps contain one or other or both of the defendants stating that the information they are (according to the government) conspiring to communicate is information that they know they are not supposed to possess. It's also information that they received from Larry Franklin. Since Franklin pled guilty and his plea was accepted, he won't be able to quibble about any of that. So between the wiretap and Franklin's conviction, the government obviously believes they can overcome expert testimony which, by its nature, cannot be dispositive.

matt

perhaps some of these cases would be better served if the venue was outside of Washington. It seems there is far too much leaking and gamesmanship involved. Vendetta has polluted the halls of justice.

clarice

Franklin's not on trial they are and whatever he pleaded to cannot bind them. Of course they are going to argue that if in fact the information was not properly classified and not secret it is irrelevant what Franklin pleaded to or what they thought or what they said to tohers about it, anduril.
Leonard's testimony sure won't be dispositive, but I know the govt believes it will be impressive and persuasive (they tried hard enought to keep it out of the trial) and all the defense needs is ONE juror.

C'mon--this is criminal law not theology.

clarice

http://www.washingtonpost.com/
Alert Prosecutors Mulling Dropping AIPAC Case

clarice

Text:"Review comes amid reports that Rep. Jane Harman (D-Calif.) was overheard on federal wiretaps agreeing to seek lenient treatment for the two lobbyists from the Bush administration. Sources say the prospect of dropping the charges is unrelated to the disclosures about Harman's alleged role. "


Unrelated but as I said yesterday the disclosures seem to have been designed to impact on the review.

anduril

I don't understand the crack about theology--perhaps you could explain it, since I was unaware that theology entered into the AIPAC case.

Franklin's plea is not irrelevant, since he will be testifying. His plea may not bind the defendants, but it will be powerfully suggestive to a jury--along with the wiretap evidence.

As for Leondard's testimony and the government's efforts to exclude it--I suppose you expected the government to just roll over and allow it in without a fight?

C'mon, this is a jury trial, not a theology seminar.

clarice

More from the WaPo:
"Federal prosecutors are considering whether to drop the charges against two former pro-Israel lobbyists accused of violating the Espionage Act, law enforcement sources and lawyers close to the case said today. ...


The review of the case against Steven J. Rosen and Keith Weissman was triggered by a series of recent court rulings that make it harder for the government to win convictions, the sources said. Those included an appeals court decision allowing the defense to use classified information at trial and a judge's ruling that said prosecutors must show the two men knew the information they allegedly disclosed would harm the United States. That set a high bar for prosecutors because criminal intent can be difficult to prove."

clarice

More--because it appears typhus pad dropped it.

Ratsafratz


Federal prosecutors are considering whether to drop the charges against two former pro-Israel lobbyists accused of violating the Espionage Act, law enforcement sources and lawyers close to the case said today. ...


The review of the case against Steven J. Rosen and Keith Weissman was triggered by a series of recent court rulings that make it harder for the government to win convictions, the sources said. Those included an appeals court decision allowing the defense to use classified information at trial and a judge's ruling that said prosecutors must show the two men knew the information they allegedly disclosed would harm the United States. That set a high bar for prosecutors because criminal intent can be difficult to prove.

JM Hanes

I wonder where I got the impression that the AIPAC guys weren't aware that the info was classified? It seemed to me at the time that knowing something has been inappropriately leaked is a far cry from knowing that it was classified material. I remember some discussion of they could have taken the fact that Franklin(?) leaked it as an indication that it was in house info, i.e. being bureaucratically protected, but not actually classified. All of which could simply be an argument that someone was making early in the case, though.

JM Hanes

Clarice:

"One report said that Mueller was the person who would normally have okayed this wiretap but he was unavailable so Goss did it and that it was done after notification to Hastert and Pelosi."

That's interesting, because I've been thinking that the Harman leak has Pelosi's stink all over it.

Maybe she worries that Harman will confirm that Dem leadership knew all about the "enhanced interrogations" (and may have alluded to same previously?) -- which would be newly problematic with the release of the torture memos, and the fevered call for prosecutions. Harman would have been Intel chair, if it weren't for Pelosi's animosity, and Pelosi extracted the maximum public humiliation when she cut Harman out of leadership. She even supported a Dem challenger in Harman's district, IIRC.

Pelosi could easily be worried about additional revelations and wouldn't want a non-compliant type anywhere near a podium. I think she is out to permanently destroy Harman's credibility this time around -- if not as an initiator, surely as an enabler.

clarice

jmh, it's the way journos get 90% or more of their information in D.C. everyday--most of the time the person giving them the information has been cleared to "leak" it to them and the listener has no damned way of knowing whther the info is really secret and whether the exchange was approved by higher ups.

From the moment this case was brought every honest journo in town who deals with national defense said "WTF?"

anduril

Dueling quotes:

It is unclear when a decision will be made about whether to proceed with the case, but sources said they expect one soon because the trial is set for June 2 in U.S. District Court in Alexandria. The sources described the review as a legal analysis examining the recent court rulings and whether prosecutors can meet their burden of proof. They said the review was not begun by political appointees from the Obama administration and would have been undertaken even if Republicans had retained the presidency.

The sources also said the review is unrelated to the revelations that Harman, the top Democrat on the House Intelligence Committee for much of the Bush administration, was overheard on telephone calls intercepted by the federal government.

I'm not privy to the prosecution's case--nor the defense's, for that matter. From what I've seen, the government believes that some of the language in a trial court ruling could misconstrue their burden of proof. I say "could," because the trial court also uses language that seems to mirror the government's position. The appeal court refused to take an appeal on an issue of statutory interpretation. What's not clear to me is that the trial court actually ruled "that prosecutors must show the two men knew the information they allegedly disclosed would harm the United States." What the trial court appears to have held is that the concept of "national defense information" would be unconstitutionally vague unless the government is required to prove 1) that the information was closely held, and 2) that its disclosure might harm US interests that are related to national defense--I paraphrase. At one point the trial court used the "harm" language only, but later included the full statutory language re "advantage," which I quoted above.

I don't believe there has ever been a constitutional challenge on this issue. The dilemma for the government right now is whether to go to trial, not knowing whether they may have to later appeal based on the trial court's interpretation of the statute. IOW, the dilemma is the government prepared to argue the constitutionality of the Espionage Act using the facts in this case, or do they want to wait for a case more to their liking. This consideration does not necessarily have to do with their view of the merits of their case, but with potential long term impact.

clarice

You could say that about the entire case, anduril--How many Espionage Act cases have ever been successfully prosecuted? Was a single one of them ever as flimsy as this one? Look how many disastrous rulings for the govt it has already engendered...

anduril

most of the time the person giving them the information has been cleared to "leak" it to them and the listener has no damned way of knowing whther the info is really secret and whether the exchange was approved by higher ups.

Except that Franklin was NOT cleared to leak, and 1) one of the current defendants said on the wiretap that he was NOT supposed to have the info that Franklin gave him and 2) during the defendants' meetings with Franklin they engaged in suspicious behavior--went to like umpteen different restaurants before sitting down to talk in an empty one. 3) They also coordinated their meetings with Franklin with an official of a foreign power--one who was later denied a visa (2007) to the US based on a statute that allows the Justice Department authority to bar people who may seek "to violate any law of the United States relating to espionage or sabotage" from entering the country.

clarice

If I'm wrong and the case goes to trial, I suppose we will see more evidence to judge whether or not this was a stupid case to have brought. Having seen such descrepency between the Plame presser and pleadings and the trial testimony, I'm not willing to consider these allegations dispositive.

But I can tell you this, I would never have okayed the institution of this suit.
At best you can win these if you have someone slipping a properly classified top secret bit of information to an enemey, especially at time of war..I went looking again for prosecutions under this 1917 Act and you can be sure the Wilson stuff(prosecuting editors of socialist papers for encouraging men not to enlist in WWI) would not work.

We really need a new Espionage Act and will not get one because of concerns about enfringing on Frist Amendment Rights, something Woodrow didn't have to contend with much.The 1917 creaky bit of stuff is a weak reed .

anduril

But I can tell you this, I would never have okayed the institution of this suit.

I knew that already.

We have an advantage in this situation over Plame, in that we can read the various affidavits and so forth from the Franklin case. The same evidence that is documented there would be used again in this trial. I certainly agree 1) that there remains a presumption of innocence and 2) that our national security laws in general are creaky.

cathyf
I think she is out to permanently destroy Harman's credibility this time around -- if not as an initiator, surely as an enabler.
That's a pretty dangerous game. Harmon is exactly the sort of politician pointed to as "the kind we like and respect" not only by moderates and independents, but basically by everybody along the spectrum who isn't totally nuts.
centralcal

Oh, cathyf, how I wish someone, somewhere, someday, can bring Ms. Botox Pelosi down in complete and abject humiliation.

anduril

...basically everybody along the spectrum who isn't totally nuts.

Color me totally boxed in. If I say I want to "dispose" Pelosi do I earn some measure of redemption?

WOW! This is great!

Jack Bauer couldn't stop 'The Goldman Conspiracy': 10 reasons why Wall Street has absolute power over America's democracy

anduril

And for good measure:

Why Obama wants lawyers to rate judges.

centralcal, you need to get over the idea that taking down one or two liberals will somehow cleanse the "great guilty temple." I'm afraid our entire system is corrupt.

clarice

I'm in the middle of dinner but this is solid:

It's not public--TheHolder review is with an in house commission--like the one he empaneled before he dropped the Stevens case,

JM Hanes

cathyf:

That's precisely why Pelosi wants to get rid of her so badly. If she can make Harman look unreliable, (or like she was using info for her own gain), Pelosi could defend booting her from Intel entirely. I've wondered why Harman would be trying to get AIPAC to intercede with Pelosi in the first place.


anduril:

I'm not sure what difference it makes if leaks are sanctioned or not. Reporters basically know that whenever they get a leak, it's information they are not supposed to have.

There was some really awkward phrasing in the WaPo piece that made me think DoJ probably knew they had big problems with this case and were relieved to have an excuse (the rules have changed!) for dropping it.

JM Hanes

anduril:

Sinking Pelosi would be a hell of a good start. A lot of the most corrupt Dems would go down with that ship.

clarice

I suppose we'll never know who leaked the Harman "tape" story but if we knew that we'd have a sure shot at figuring out the why of it.

Let's trace this backwards..most of the stories refer to a couple (3/4?) "former or present officials. I saw only one name--Dave Szady, major league clown and the man Gertz established beyind peradventure of doubt was the dumbest, most incompetent CI head a human being could imagine. He's quoted as saying Harman never interfered with the case.
That means the reporter did talk to him. Did he leak about the tape? He had a vested interest in keeping this case going. He reportedly is the man who was behind it.

daddy

Interesting Clarice in that having just returned from the gym where I suffered through "Hardball" with the ususal suspects (David Corn etc), how intense Matthew's was at suddenly trying to track down who leaked classified CIA documents. Thankfully Corn was on hand to say it was not political, it just took this Stein guy a long time to get around to the stuff lying around his in-box.

Worth mentioning that just before a break, the almost exact quote from Journalist Matthew's was, "Now we'll have Dick Cheney to kick around for a couple more years." I didn't have a pen, so tried to remember it, but there is no way in hell I am going to suffer through a replay of Hardball to get his quote exact.

clarice

daddy, you've served your time in hell if you had to listen to it even once.

"Not political" huh? Meaning what? Not Republican generated?

centralcal

"centralcal, you need to get over the idea that taking down one or two liberals will somehow cleanse the "great guilty temple." I'm afraid our entire system is corrupt."

whoa, anduril (no capital A - heh!) you are reading way more into my desire than what I expressed.

I wasn't opining about the "collective," but rather the "singular." I really would like to see Mrs. Botox taken out. I don't see that as any sort of "cleansing." Actually, I see it as HER just due. Period. But, boy would I enjoy it!!!

centralcal

Plus, give me a break, please. Here in California we have to endure Pelosi, Boxer, Feinstein and no matter how devotedly we vote, they are in like "Flynn."

The Coast is blue. The inland is red. It is all about population concentration and "districting."

glenda

What state is Holder from? Is it Illinois or Maryland? Or?
How about the loons at Judicial Watch file a 'unfit for general' against Holder due to his involvement, up to his gray eyebrows in bad pardons sold during Clinton's last garage sale pardons that included terrorist and my personal favorite, Mark Rich. Wasn't he the point man in justice on these? Or what DOJ did in re:Waco,Elian Gonzales,Fosters'death,scores of women who brought abuses against WJC/travelgate/illegal chinese donations/
let's go all the way back to Kennedy and start investigations into his drug use and pecadilloes paid for with government funds under the eyes of willing mentors! this is pedantic stuff- Obama Hussein has lost his shakrah also known as a spine!

clarice

Holder's from D.C.

anduril

centralcal, try these names out:

obama
durbin
blagojevich
daley
emanuel
schakowsky

shall i go on?

clarice

This is getting even more mysterious:
"Rep. Jane Harman (D-Calif.) raised the possibility today that more members of Congress could have been wiretapped by the NSA or FBI.

Defending herself against reports that she was caught on tape offering to intervene in the espionage-related case of two former employees of the American Israeli Public Affairs Committee (AIPAC), Harman said other members are worried that they were taped as well.

"And let's see who else was wiretapped," Harman told CNN's Wolf Blitzer. "I mean lots of members of Congress talk to advocacy organizations. My phone is ringing off the hook in my office from worried members who are asking whether I think it could have happened to them. I think this is an abuse of power, Wolf."

She added later, "I want to make sure that members of Congress are not routinely wiretapped without their knowledge."

Harman added that the alleged conversation must have been with an American citizen, meaning the NSA did not have authority to listen.

"I cannot imagine I had any conversation like this with — with anyone who was not an American citizen," she said."

http://briefingroom.thehill.com/2009/04/21/harman-more-members-could-have-been-tapped/

JM Hanes

It's good to see her fighting back, isn't it? Give 'em hell Jane! No wonder Pelosi/Rahm/Anonymous want her gone.

clarice

Yes, it is.
Just before thie happened, I asked myself why she wants to be in Congress anyway? She's very rich, smart,attractive can do so many interesting and fun things and yet she wants to sit with a bunch of nitwits and be a pinata for who knows what evildoers? Interesting.

sbw

Clarice, if you do not stand up to the winds that blow, who will?

anduril

Sorry, I don't see a mystery.

clarice

I'm far too lazy--She has a gorgeous home overlooking the ocean, can travel wherever and whenever she wants, could engage in a million great worls--and she chooses to spar day in and out with the likes of Pelosi and Reyes? Not for me, but to each her own.

Later.

sbw

Clarice, the time will come for your gorgeous home on St. Janes overlooking the ocean but, until then, you are going to spar day in and out with the likes of us.

anduril

Back in the days when I spent a lot of time in my car I got in the habit of switching back and forth between country music and NPR. Call it bi-polarism, if you want. I liked a lot of the interview shows, like Terry Gross and Robert Siegel. Now Siegel has an interview with Jane Harman:

Harman 'Outraged' Over Alleged Wiretapping

It seems Harman knows a little about the law pertaining to wiretaps, but isn't entirely clear on the difference between Title III wiretaps and FISA wiretaps. In discussing this she touches, without seeming to realize it, on one of the reasons the government, given its druthers, will always go with FISA. But there are other useful tidbits, such as these:

But are you saying that you really don't have any recollection at all of a phone conversation like this?

I'm saying that, No. 1, I don't know that there was a phone conversation. If there was and it was intercepted, let's read exactly what I said to whom. We don't know who that was either.

But, by the way, in The New York Times article today, which is a pretty big piece, there is a quote from someone named David Szady, who was the FBI's former top counterintelligence official. And he says, quote, "In all my dealings with her" — that would be me — "she was always professional and never tried to intervene or get in the way of any investigation," unquote.

But here are some quotations attributed to the transcript of the wiretap of your conversation that CQ reported. At the end, you say to the caller, "This conversation doesn't exist." But that's after you're quoted as saying that you "would waddle into the matter" — that is, of Rosen and Weissman —if you "think it would make a difference." Can you recall saying that, or is that a fair conversation to have with someone?

No. I can't recall with any specificity a conversation I may have had four years ago. That is why I have asked Attorney General Holder to release any transcripts that he has that involve wiretaps of me. And, by the way, there's a question about whether they were legal, and there's another question about whether other members of Congress, who also talk regularly to advocacy groups and constituency groups, might have been picked up and may be wiretapped even now or maybe I'm even wiretapped now. I can't tell you with any specificity what the government did, since the first news I had about any of this was last Thursday night.

But, indeed, if what happened was, initially, your phone wasn't tapped [and that] the person you were talking with was being tapped — and if that was an investigation of a foreign agent, is it realistic to think that anybody is going to release a completely unredacted transcript of that conversation?

Well, let's find out. I mean, the person I was talking to was an American citizen. I know something about the law and wiretaps. There are two ways you do it. One is you get a FISA warrant, which has to start with a foreign suspected terrorist, a non-American foreigner. If this was FISA, Foreign Intelligence Surveillance Act, that would have had to happen.

But if you know that it was an American citizen —

If it was Article III, FBI wiretap, that's different. But I don't know what this was. And I don't know why this was done. And I don't know who the sources are who are claiming that this happened are and I think —

But you are saying that you know it was an American citizen. So that would suggest that you know that there was a —

Well, I know that anyone I would have talked to about, you know, the AIPAC prosecution would have been an American citizen. I didn't talk to some foreigner about it.

You never spoke to an Israeli? You never spoke to an Israeli about this.

Well, I speak to Israelis from time to time. I just came back from a second trip to Israel in this calendar year. I've been to the Middle East region as a member of Congress 22 times and was in Afghanistan and Pakistan and Israel and Turkey just a week ago.

But here's the problem, Robert — and I'm going to try and get this across again. These are selective leaks. They are quoting — allegedly quoting me — maybe out of context based on transcripts that these people say they've seen. I didn't even know there were transcripts. Apparently some people in the government, some people in Congress knew about this; but I didn't know a thing about this. And it seems to me very troubling and an abuse of power that members of Congress are wiretapped and may be some part of some kind of investigation. But I was never told. This was four years ago. I have never been told in any way by the Justice Department that I was being investigated for anything. So let me just —

But if you were being investigated, you wouldn't actually expect them to tell everybody they're investigating that they're being wiretapped?

Well, I think they would tell people if you're the subject of an investigation. I think they're required to do that or in some way importantly involved in an investigation. And I was told absolutely nothing. And maybe there are other members of Congress who are having this same problem. But more important than members of Congress who have bully pulpits are citizens.

It appears to me that Siegel got some decent interview prep and that Harman is dancing around a few things, maybe still not sure of the lay of the land. Interesting.

anduril

Here's a blog that sheds a little light (no pun on this thread) on a few matters: Bush-era CIA officials push back.

But I'll save you the trouble of wading through the turgid and not very informed speculation:

What is going on?

A former intelligence official familiar with the matter told Foreign Policy on condition of anonymity Monday that Goss had been asked due to the unavailability of FBI director Robert Mueller to certify a FISA warrant that was seemingly triggered by a captured communication between Harman and someone who was already being surveilled by the U.S. government (presumably, the suspected "Israeli agent"). Furthermore, the former intelligence official said, longstanding protocol involving the separation of powers required that when intelligence exists that includes a member of Congress, that the heads of the body in which that member sits, in this case, the top Republican and Democratic in the House of Representatives, then House speaker Denny Hastert (R-IL) and minority leader Nancy Pelosi, (D-CA) be informed.

Pelosi preceded Harman as the ranking Democrat on the House Intelligence Committee, during Goss's chairmanship of the committee, and before his appointment in late 2004 to become CIA director. While it's been fairly widely reported that Pelosi and Harman don't get along, and sources said Harman and Goss also had difficult relations, Pelosi and Goss are said to be on good terms. Pelosi awarded Goss the Distinguished Service* award in 2006, one source said. Pelosi also more recently signed off on Goss being made co-chairman of a bipartisan panel overseeing Congressional ethics. (This even though Goss was CIA director when he made what some in the Agency thought a controversial decision to appoint Kyle Dustin Foggo to be the number three official at the CIA. Foggo was recently sentenced to three years in prison after pleading guilty on a corruption-related case.)

A former senior U.S. intelligence officer said he heard during work on the Hill in the 2004 time period of whispers among members of the intelligence committees and their staffs that Harman was allegedly caught up in some Israel-related case that would likely prevent her from getting the chairmanship of the committee she sought. He also said that it was clear that Goss and Harman (and their staffs) fiercely disliked each other.

Anyone else agree that it's a super idea to inform the House or Senate about these super sensitive investigations?

clarice

I remembered reading that Hastert and Pelosi had been informed but forgot where I'd read it.
I think she's right to fight back about selective leaks and I think Szady made a mistake in getting his name into the story. We knoow now that he's one of the former or present agents talking to reporters. I know that on the record he only said nice things, but it's altogether possible he said more off the record. Dumb move, I think.

anduril

One of the problems with this supposed "separation of powers" approach of informing "interested parties" is that, as a practical matter, it can become almost impossible to track down a leaker--there are simply too many people privy to the information, scattered through institutions that span all three branches of government. Every leak investigation that ever was gets bogged down somewhere along the line. Who would have imagined such a result when that policy was established in the wake of Watergate--the enabling of selective leaking for political purposes? Now, of course, lawyers and investigators have learned and are getting in on the act.

clarice

And certainly a number of the leakers are operating on hearsay God knows how many times removed and inaccurate. It's very hard to respond. Good for her to demand release of the entire transcripts.

Topsecretk9

The leaker, I bet


The National Security Agency briefed Speaker Nancy Pelosi (D-Calif.) “a few years ago” that they had wiretapped Rep. Jane Harman (D-Calif.), Pelosi revealed Wednesday.

But Pelosi said she was not told what federal eavesdroppers picked up on the call — and never alerted Harman to it.

“It was not my position to raise it with Jane Harman,” Pelosi told reporters at the Christian Science Monitor lunch. “In fact, I didn’t even know if what they were talking about was real. All they said was that she was wiretapped.”


maryrose

Harman is a moderate and the only one who stood up to the radical dems when they were pushing to end wiretapping. Pelosi sees her as a threat so therefore she must be marginalized.

JM Hanes

TSK9:

“In fact, I didn’t even know if what they were talking about was real. All they said was that she was wiretapped.”

Talk about talking out of both sides of your mouth -- at the same time! I wouldn't have believed that Pelosi was only told that Harman was being wiretapped any way, but if Pelosi wasn't sure that "what they were talking about" was real, her second assertion is clearly false! It's also hard to believe that leaders of either the minority or majority would sit idly by while their members were being wiretapped without any indication of why. Recall the stink over raiding even the patently corrupt Jefferson's office.

We've got Pelosi seriously sucking up to Goss for years, and in possession of a politically incendiary grenade which explodes in the face of her nemesis in Congress -- at the very moment Harman could do her the most damage by confirming that Pelosi not only knew all about the interrogations when she was the ranking Intel Dem, she approved them.

Emanuel may have pulled the pin, but Pelosi is the one who desperately needs plausible deniability here. If those two aren't thick as thieves, then nobody is.

As a related aside, I don't think anyone has been asking what seems like an obvious question. In addition to a major Intel breach, we've also got the curiously redacted publication of documents which put the CIA in such anabject state of disarray that the President showed up in person to try to calm the waters. The one name that has never surfaced in this virtual tsunami is Leon Panetta. It's more than ironic that his single identifiable expertise was said to be political management.

JM Hanes

anduril:

"It appears to me that Siegel got some decent interview prep and that Harman is dancing around a few things, maybe still not sure of the lay of the land. Interesting."

I'l leave you to expand on what you mean by "interesting," but I suspect on reflection Harman thought better of denying the details of four year old conversations she does not specifically remember, especially if she talks to representatives of key interest groups all the time.

Harman could be absolutely sure that she would never carry on that sort of conversation, but she's faced with selective leaks that are clearly intended to be damaging, and the very real prospect of more bits and pieces deliberately designed to make mince meat of her credibility. It could be politically suicidal to do anything other than demand the full disclosure of the original transcripts, as she is doing.

Scooter Libby certainly provides a cautionary tale here! Not just in terms of dire consequences which can attach to faulty recollections, but in terms of Intel agencies sitting on their hands while key players in Washington are destroyed on the basis of leaks from their own departments.

bad

We've got Pelosi seriously sucking up to Goss for years...

JMH, I wonder what she has on other members...

clarice

Yes, on all counts,JMH.

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Wilson/Plame