Secrecy Expert: Harman Leakers Likely Committed Felony

Did the people — whoever they may be — who leaked details about Rep. Jane Harman’s wiretapped conversation with a suspected Israeli agent, break the law?

The law quite clearly prohibits the unauthorized disclosure of classified information “concerning the communication intelligence activities of the United States or any foreign government.” And Steven Aftergood, the director of the Project on Government Secrecy, confirmed to TPMmuckraker: “It seems crystal clear that if this was a FISA wiretap,” as appears to be the case, “then whoever disclosed it committed a felony.”

Aftergood explained that under FISA, the communications of American citizens “are supposed to be minimized”. But in this case, he said, “they were publicly revealed. It seems to be the clearest violation of law in the whole episode.”

Aftergood added that it’s “all but certain that the wheels are turning at the Justice Department to investigate the leak.”

And Melvin Goodman, a former CIA analyst who’s now a senior fellow at the Center for International Policy, underlined the extent to which a leak of this nature would violate national security protocol. “When American names came up on these intercepts, they were handled very carefully,” Goodman told TPMuckraker. “The names would be blacked out.”

Goodman added: “The investigation of the leak from a counter-intelligence standpoint would be a requirement.”

Asked by TPMmuckraker whether it has begun an investigation, a Justice Department spokeswoman declined to comment.

Taking Stock
Before we consider just who such an investigation might implicate, let’s take a minute to review what we know about the story at this point, and what it might all add up to.

First, here’s the Cliff’s Notes version of the key factual elements in the story, thanks to that original story by CQ‘s Jeff Stein, an earlier story by Time in 2006, as well as recent follow ups from Stein and others:

– Harman was picked up on a 2005 government wiretap, telling a suspected Israeli agent that she would urge the Bush White House to go easy in the AIPAC spying case, in exchange for AIPAC’s help lobbying Nancy Pelosi to give Harman the job of House intelligence committee chair. Before signing off, she’s alleged to have said: “This conversation doesn’t exist.”

– Haim Saban, a major Democratic fundraiser and AIPAC supporter, later called Pelosi and threatened to withhold contributions if Harman wasn’t given the intel chair post.

– Porter Goss, at the time the director of central intelligence, read the transcript of Harman’s conversation, and signed off on the Justice Department’s application for a FISA warrant to wiretap Harman herself. (Ed Note: See update at bottom of post.)

– But Alberto Gonzales, at the time the attorney general, quashed an investigation into Harman, because he needed her to defend the administration’s warrantless wiretapping program, and didn’t want her credibility damaged. (Harman did indeed go on to defend the program, after the New York Times had revealed its existence.) John Negroponte, then the intelligence czar, also stepped in to get the investigation called off.

– Both Pelosi and then House Speaker Dennis Hastert learned about Harman’s wiretapped conversation. Pelosi has said she did not notify Harman.

– Ultimately, Harman didn’t get the intel chair job, which went to Rep. Silvestre Reyes, and Saban didn’t withhold contributions to Democrats.

– Since CQ‘s story came out, Harman has claimed not to remember the conversation in question, but has given vague denials that she would have offered a quid pro quo of the kind described by CQ‘s sources. She has also denied intervening in the AIPAC case, and no information has emerged suggesting she did. In addition, Harman has called on the Justice Department to release all information connected to any investigation into her, including transcripts of wiretapped calls.

– Harman has hired Lanny Davis — a former Clinton White House counsel who’s close to AIPAC — as a “media advisor”.

– Reyes has announced that the committee will investigate the circumstances under which Harman’s conversation was wiretapped.

– The AIPAC case that Harman agreed to try to intervene in — in which two former AIPAC lobbyists were charged with espionage, after receiving classified information from a Pentagon source — was dropped last week.

Parallel Tracks
So, what does it all mean? That’s the harder question.

Among reporters and observers, two parallel ways of approaching the story — what we might call the “face-value” track, and the “meta” track — have quickly emerged.

The face-value track is concerned — as the sources for CQ‘s original report appear to have intended — with Harman’s potential culpability.

As a legal issue, it’s a crime for a public official to pledge to use his or her position to exert influence in exchange for anything of value, but it’s far from clear that a credible case could have been built against Harman. Still, as an ethical matter, for a member of Congress to tell a possible foreign agent that she’s willing to intervene in an ongoing DOJ case, and, in the same conversation, to talk about how her interlocutor could help her advance her own political ambitions, doesn’t look great, to put it mildly.

Kos, for one, has called on Harman to resign. And Michael Scheuer, who resigned from the CIA in 2004 after a 22-year career, told TPMmuckraker that Harman committed a serious breach of national security, and that the incident underlined Israel’s outsized influence in Washington. “This country’s foreign policy is controlled by Israel,” said Scheuer — who recently wrote in an online op-ed that he was dismissed from the Jamestown Foundation, a foreign policy think-tank, thanks to his outspoken views on the US-Israeli relationship.

But, as Aftergood’s comments to TPMmuckraker suggest, the meta track — which focuses on the identity and motive of the sources for CQ‘s original report — may be more consequential.

Flight Of The Gosslings?
So: where might an investigation on that subject lead? Over the last week, several writers — including Foreign Policy‘s Laura Rozen, the JTA‘s Ron Kampeas, and us here at TPMmuckraker — have been taking a close look at Porter Goss, one of Harman’s prime political opponents, both when Goss chaired the intel committee from 1997 to 2004, and when he went on to run the CIA from 2004 before his forced resignation in 2006.

As we wrote last week, Goss’s staff, known as the Gosslings, earned a reputation as vicious partisan schemers — with close ties to the Bush White House — who were known to use selective leaks to advance their political agenda. We also noted that the investigation into Harman was first reported in October 2006, just three days after Harman had released a report on the Duke Cunningham imbroglio, which further tarnished Goss’s legacy.

“Goss was totally inept and corrupt,” Ray McGovern, who was a CIA analyst for 27 years, told TPMmuckraker.

Goodman, the former CIA analyst, agreed, telling TPMmuckraker that Goss was “one of the worst committee chairman and one of the worst CIA directors” in history. While he was on the committee, said Goodman, Goss made clear that supporting the Bush administration was his only priority. “Goss was extremely partisan on the committee,” Goodman continued. “The agency could do no wrong.”

As for whether the Goss camp could have leaked Harman’s wiretapped conversation to CQ, Goodman said: “All these people have very long memories, and long knives. The Gosslings were particularly bitter about the way he was cashiered. So I think if they have a chance to extract some sort of price, I’d expect them to do it.”

Goodman noted, as others have, that Harman had been one of the few members of Congress to have challenged the Bushies’ torture policy — a subject that, perhaps not incidentally, has been back in the news — earlier this decade. “Harman went on record questioning whether this was the right policy to be adopting,” he said. “I would think that would be remembered.”

Goss did not respond to TPMmuckraker’s request for comment last week.

Still, the Gosslings are hardly the only possible culprits. CQ‘s report came just twelve days before the Justice Department announced it was dropping the AIPAC case. According to Goodman, some within the FBI were “incredibly bitter about the way [Attorney General Eric] Holder dropped the case.” It’s not far-fetched to think that there were those in law enforcement who calculated that leaking Harman’s conversation might help put pressure on DOJ to keep the case alive.

So right now, there are still more questions than answers. But it’s at least possible that it may soon be the federal government — not just little old TPMmuckraker — asking some of those questions.

Late Update 05/05/09, 10:30am: CQ‘s Jeff Stein, who broke the original story of the wiretapped call, told TPMmuckraker this morning that Goss did not in fact sign off on a Justice Department application for a FISA warrant to wiretap Harman herself, as we wrote above and as his original report suggested. Rather, says Stein, his sources tell him that Goss signed off on DOJ’s application to renew its tap on the suspected Israeli agent, merely certifying that, from CIA’s viewpoint, it was a legitimate national security tap. Stein blamed the confusion on poor wording in his original story.

“I could have been more precise on this point,” Stein said. “I did not mean to imply that Goss had approved of a Justice Department investigation of Harman. He would have no role to play in that. At this point I do not know for sure what DOJ did specifically about Harman, beyond the fact that the FBI wanted to question her about her conversation with the wiretap target. The main point, which I could have made clearer, is that Goss was obligated to notify Hastert and Pelosi that the FBI intended to question her about the conversation.”

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