No one ever said she was under investigation by the Justice Department for anything.
Reports in April, first
here, and subsequently corroborated by The New York Times and Washington Post, revealed that Harman had been overheard during a foreign intelligence investigation of a suspected Israeli operative, whose name has yet to surface.
According to three former national security officials with first-hand knowledge of the wiretap transcript, Harman promised the target of the court-approved wiretap that she would lobby the Bush Justice Department to reduce charges against two former officials of the American Israel Public Affairs Committee (AIPAC) who had been accused of violating the Espionage Act.
In exchange, according to those
reports, the suspected Israel agent promised to help Harman get the chairmanship of the Intelligence Committee after the 2006 congressional elections, which the Democrats were expected to win, by raising campaign money for then-Minority Leader Nancy Pelosi, who would make the appointment.
The post would have given Harman access to the nation's most sensitive secrets. In the end, because of Pelosi's wrath at Harman's strenuous campaigning for the job, she ended up with a lesser post, chairing an intelligence panel of the House Homeland Security Committee.
No evidence has emerged that Harman did, in fact, discuss the AIPAC case with Justice Department officials, although The Washington Post reported in April that she called the White House on the defendants' behalf.
In the opinion of some attorneys in the Justice Department's Public Integrity and Intelligence Oversight sections, Harman had committed a "completed crime" merely by agreeing to use the power of her office in exchange for something, CQ SpyTalk
reported on April 19.
In any event, the AIPAC charges were not reduced by Bush officials. They were dropped last month by President Obama's attorney general, Eric Holder, because the judge in the case had set an impossibly high bar for the government to get a conviction.
But back in late 2005, following the discovery of Harman's conversation on the court-ordered wiretap, then-CIA Director Porter Goss was supposed to notify the leaders of the House, Pelosi and Speaker J. Dennis Hastert, that Harman had been picked up on a national security electronic intercept, and that FBI agents would seek to question her.
But Goss, according to reports
here and elsewhere, was blocked from notifying Pelosi and Hastert by then-Attorney General Alberto Gonzales and National Intelligence Director John D. Negroponte, who told the CIA director they needed Harman's support for the administration's warrantless NSA wiretap program, which was about to surface in the New York Times.
Any revelation that she was under investigation for ties to Israeli intelligence would effectively neutralize her as a useful Democratic supporter of the Bush wiretaps, they argued.
Ultimately, Harman was never questioned by the FBI about her remarks on the wiretapped conversation, much less investigated.
But when excerpts from the wiretap transcript
surfaced here in April, Harman
attempted to deflect attention from her alleged remarks by claiming, falsely, that she had been the victim of the Bush administration's illegal NSA wiretapping program -- which, in any event, she had supported, both privately, when it began after the 9/11 attacks, and publicly, in 2005, when it was revealed.
Harman had been heard on a wiretap that had been approved by the Foreign Intelligence Surveillance Act (FISA) court.
Nevertheless, her tack was to make herself out to be a victim of Bush's extralegal wiretap program, suggesting along the way that NSA was targeting members of Congress.
Aided by veteran Democratic public relations advisor Lanny Davis, whom she hired to deal with the burgeoning flap, Harman took to the airwaves to accuse the Bush administration of an "
outrageous abuse of power."
She demanded that current Attorney General Eric Holder "release all transcripts and other investigative material involving me in an unredacted form," and told him, "It is my intention to make this material available to the public."
Veteran intelligence observers remarked that Harman, a member of the Intelligence Committee for several years and well schooled in security issues, had to know there was no chance that the government would release its most highly sensitive and classified material -- raw national security wiretap transcripts -- especially since they would reveal the target of its investigation into Israeli espionage.
A Harman aide did not respond to my request for clarification of these issues, except to have her lawyer,
Reid H. Weingarten, himself a former Justice Department prosecutor, call me.
Weingarten said that he made inquiries on Harman's behalf with officials in the Justice Department's criminal division, whom he declined to identify, to inquire about the status of her demand for "all transcripts and other investigative material ... in an unredacted form."
"Several weeks had gone by and we hadn't heard anything," Weingarten, a prominent criminal defense attorney and partner at the D.C. powerhouse law firm Steptoe & Johnson, told me.
Weingarten characterized the June 16
letter to Harman from Rita M. Glavin, acting principal deputy assistant attorney general, as a complete exoneration of his client.
"Whatever has been picked up [by the wiretap] has been reviewed by career prosecutors and she has been completely cleared," he maintained.
A closer examination of the letter, however, reveals that Glavin said that Harman "is neither the subject nor the target of an ongoing investigation by the Criminal Division."
In addition, sources
told CQ SpyTalk in April that Harman's remarks on the wiretap had been scrutinized the department's
Public Integrity section -- which is responsible for the investigation and prosecution of elected officials -- not the Criminal Division.
Weingarten avoided answering the question of why Harman would claim that she had been absolved of any past wrongdoing by the Justice Department, when in fact, Glavin's letter referred only to the present time, and when no one had alleged she had been under official investigation in the first place.
As reports here and elsewhere in April made clear, the FBI was never able to question Harman about her alleged conversation on the NSA wiretap.
And in April,
The Washington Post, quoting an anonymous former government official, alleged that "the Justice Department decided not to proceed with a criminal case against Harman or to notify congressional leaders of the preliminary investigation because the evidence was at best murky and such cases are hard to prove."
But to him, Weingarten said, the Justice Department's letter meant "nothing about her conduct merits inquiry."
But "there is a significant chance," he added, that the Justice Department "will determine who leaked the information (on the wiretap) initially."
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Comments
I've been following this as you and others have reported on it and one thing I haven't seen discussed much, but it puzzles me.
What kind of minimization order would there have been that would have allowed for the capture of the full conversation (capture and transcription) of discussions with a member of Congress? That seems odd, and it makes you wonder if the real certainty Harman had when she made the demand for the transcript would have been related to the fact that, with her background, she knew it was unlikely that under a normal FISA order it should exist without a FISA order allowing her to be targeted or a subsequent FISA order?
IOW, you are pretty safe demanding a transcript that, no matter how redacted as to the target (who knows by now that he was/is a target) shouldn't really exist as to your part in the conversation. It would be nice to see some minimizaton questions to just put that to bed or not - maybe they had a FISA order that allowed the full transcription of conversations with all US persons with whom the target spoke and with no destruction requirements - I'm no FISA order expert - but that seems odd-ish.
Posted by: Mary
| June 26, 2009 1:09 PM
Mary, thanks for your thoughtful question. I simply don't know how long the eavesdroppers stayed on the line, so to speak. In any event, according to my sources, she was not the target of the tap. -js
Posted by: Jeff Stein
| August 2, 2009 11:49 PM
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