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