Why Did The NSA–And Not The FBI–Conduct The Wiretap Which Snagged Harman?

April 21, 2009 9:56 a.m.

Sunday’s bombshell article by Jeff Stein–and the New York Times‘ helpful follow up piece–open up so many new lines of inquiry it’s hard to know where to begin. But a few things definitely stuck out at us. One question we had is why, according to Stein’s story, did the NSA (and not the FBI) conduct the wiretaps? (Yesterday afternoon a couple reports emerged indicating that perhaps the FBI, and not the NSA had done the surveillance, but the Times story seems to confirm what Stein wrote).

Why the curiosity? Well, for one thing, at the time Harman’s conversation was supposedly recorded, the FBI had long been investigating the conduct of AIPAC officials under suspicion of passing on classified information and the Harman conversation allegedly involves an attempt to obstruct the DOJ’s case. Harman has strenuously denied any wrongdoing, but assuming the taps were conducted in conjunction with the AIPAC investigation, this was certainly the FBI’s bailiwick, and, for that matter, the FBI has real investigative capability whereas the NSA, though equipped with robust interception capability, does not. NSA furthermore is almost largely in the business of foreign intelligence surveillance, so why would they become involved?One benign possibility is that the NSA was surveilling this agent for completely separate reasons. But Electronic Frontier Foundation’s Kevin Bankston cautions that there “has been a greater level of cooperation since 9/11,” so there’s no reason to assume the NSA wasn’t involved from the outset.

I asked FBI spokesman Richard Kolko if he’d describe, in generic terms, the level of interagency co-operation between the NSA and the FBI and the circumstances under which such co-operation would occur. Kolko said he was aware that my inquiry was pursuant to this still-emerging story and refused to comment. (At his behest, I’ve passed the inquiry along to the Department of Justice.)

A former FBI source who declined to speak on the record suggested that perhaps the NSA’s involvement stems back to the origins of this controversy. As my colleague Zack Roth noted yesterday, in May 2005, former Defense Intelligence Agency analyst Larry Franklin was taken into custody by federal agents after a months-long investigation revealed he had handed over secret U.S. national security information to Israeli agents. That may be key, because, according to the source, for the most part, the NSA’s investigative capability is limited to inquiries into their own people–and as a Defense Department agency, that would include Pentagon officials.

But, of course, the Harman conversation supposedly took place in October 2005, several months after Franklin had already been indicted, and around the same time as Franklin pleaded guilty. And that raises the question: if the NSA was involved because of Franklin (still a big if), why were they still involved after his specific case was all but wrapped up?

I’ll pass along any more information as I learn it–the explanation may prove interesting.

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