The FBI is seeking interviews with top House Members from both parties to determine whether they leaked details of the National Security Agency’s domestic surveillance program to The New York Times, further fanning the flames of an already tense relationship between Capitol Hill and the Bush administration.
Those being targeted for interviews include GOP and Democratic leaders, as well as the chairmen and ranking member of the Intelligence committee. Altogether, 15 senior Members and Senators were briefed about the existence of the NSA program before the Times first disclosed it in a Dec. 16 article, according to briefing records released last week by John Negroponte, director of the Office of National Intelligence.
It is unclear what level of interest the FBI has at this time in speaking with Senators who were briefed about the NSA program, although one senior Senate Republican said he expects that the FBI will interview current and former Senators about the leak as well.
The request for FBI interviews has angered some in Congress who see it as yet another example of the increasingly aggressive tactics being used by the Justice Department and federal investigators in their dealings with lawmakers. Speaker Dennis Hastert (R-Ill.) has vehemently denounced an FBI raid last weekend on Rep. William Jefferson’s (D-La.) office, and three House committees have objected to a request for documents and staffer interviews by the U.S. Attorney’s office in San Diego as part of the criminal probe into former Rep. Duke Cunningham’s (R-Calif.) activities.
When asked about her knowledge of the FBI inquiry into lawmakers’ contacts with the Times, Rep. Jane Harman (D-Calif.), the top Democrat on the House Intelligence Committee, would only say, “There is no credible claim that anyone in Congress leaked anything.”
“So far as I know, there has been no request in writing,” Harman added. “I urge the Justice Department to carefully consider separation-of-powers issues and the appearance of intimidation before proceeding any further.”
House Intelligence Chairman Pete Hoekstra (R-Mich.), who has retained his own personal lawyer in the case, said he was aware that the FBI wanted to talk to him about the NSA leak, but added he has not yet met with agents conducting the probe. Whether the interviews with lawmakers will actually occur, and what the ground rules for those sessions would be, is the subject of ongoing negotiations between the Justice Department and Congressional lawyers, said Hoekstra.
While acknowledging his support for rooting out those who leak classified information, Hoekstra expressed concerns over whether having the FBI question the lawmakers who oversee their agency would upset the balance of power between Congress and the administration.
“I am passionate about finding out who leaked what and who is breaking the law,” the Michigan Republican said. “With that in mind, we need to be very careful in protecting the prerogatives of the House.”
Hoekstra said his decision to retain an attorney was based on an abundance of caution, not fear that he would be implicated in the probe.
“After all the stuff that’s been happening lately, you don’t talk to the Justice Department without a lawyer,” said Hoekstra, referring to the FBI’s raid on Jefferson’s office.
Hoekstra noted that he had been interviewed by the FBI several years ago as part of an investigation into the unauthorized disclosure of NSA telephone intercepts given to the House-Senate Intelligence Committees’ examination of pre-9/11 intelligence gathering.
But that leak probe was requested by the two chairmen of the joint inquiry, former Sen. Bob Graham (D-Fla.) and former Rep. Porter Goss (R-Fla.), while the current investigation was initiated by the Justice Department just two weeks after the original Times story was published.
“I’ve been interviewed before by [the FBI] on leak cases, so it’s not unprecedented,” said Hoekstra, who served on the 9/11 committee. “We have to make sure what is done now is in agreement with the privileges of the House.”
Hoekstra’s committee is scheduled to hold a hearing Thursday on the “on the role and responsibilities of the media in national security reporting.”
House Minority Leader Nancy Pelosi (D-Calif.), who was one of the first lawmakers briefed on the existence of the NSA surveillance program back in October 2001, did not object to being interviewed by FBI agents.
“It’s not unusual that the investigation would extend to all who were aware of the [NSA] program,” Pelosi said in a statement from her office. “If an interview is requested, I intend to be interviewed.”
Hastert’s office had no comment.
Justice Department and FBI officials were tight-lipped about the leak investigation widening to include Capitol Hill. The New York Times has reported that investigators have interviewed officials at the FBI, NSA, the Justice Department, CIA and the office of the Director of National Intelligence as part of the probe.
“This is a sensitive and ongoing matter and it would be inappropriate for the FBI to comment on this investigation at this time,” said Richard Kolko, an FBI spokesman. The Justice Department also declined to comment.
The Times reported on Dec. 16 that “President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying” shortly after the Sept. 11, 2001, terrorist attacks.
Sen. Jay Rockefeller (D-W.Va.), ranking member on the Senate Intelligence Committee, was among those government officials who expressed concerns about the legality and scope of the NSA effort, the Times reported, although Rockefeller was not in fact told of the program until January 2003. Rockefeller, who was absent from the Senate this week because of health issues, was not available for comment about whether he has been contacted by the FBI.
Initially, only a handful of lawmakers were let in on the details of the NSA’s program. The first Congressional briefing took place on Oct. 25, 2001, and included Pelosi, Goss, Graham and Sen. Richard Shelby (R-Ala.), then ranking member on Senate Intelligence, according to ONI. Other members of the House and Senate intelligence panels were not informed of the program.
Until the Times ran its story in December 2005, less than a dozen additional lawmakers had been let in on the secret. For instance, Hastert was not briefed until March 2004, as was Senate Majority Leader Bill Frist (R-Tenn.) and then-Senate Minority Leader Tom Daschle (D-S.D.).
Recent media reports, including a May 11 article in USA Today, suggest the NSA surveillance effort was far more widespread than originally believed. In response to the continuing political furor surrounding the program, the White House has widened the list of those authorized to be briefed to include all members of the intelligence panels in both chambers.
If the FBI sends its investigators to Capitol Hill this spring, it will mark the second time in less than four years that the bureau has questioned lawmakers regarding alleged leaks about sensitive NSA information.
The first probe came in the summer of 2002 and was centered primarily on Senators and their staffs, after the leaking of the joint intelligence committees briefing on NSA intercepts of terrorist chatter on Sept. 10, 2001. Shortly after the briefing, CNN reported about the NSA intercepts and the agency’s failure to translate them until after the Sept. 11 attacks.
Because the report came from a CNN producer who covered the Senate, that leak investigation focused intensely on the Senators at the briefing — and ultimately a criminal probe centered around Shelby. The Justice Department never brought a case against Shelby, who claimed all along he never “knowingly” leaked classified information, and the Senate Ethics Committee cleared Shelby of any wrongdoing late last year in a one-page letter that did not indicate whether Shelby was CNN’s source for the leak.
Despite the federal probe into his activities several years ago, Shelby said Tuesday he would be willing to speak with “any investigators if they would call me” about the latest NSA leak probe.
In the 2002 probe, the House and Senate legal counsels worked closely together in coordinating how the Justice Department would handle its interviews with lawmakers and Congressional aides, largely because the circumstances of the joint committee during the pivotal hearing required them to do so.
This time around it’s unclear whether the counsels will need to work as closely together, if at all, according to several Congressional sources, given that the number of lawmakers involved is more limited.
However, this investigation would involve the potential questioning of at least two, and possibly three, former lawmakers: Graham, who received briefings in 2001 and 2002 as Senate Intelligence chairman, and Daschle, who was briefed in 2004 when top leaders were given sit-downs about the controversial program. In addition, Rep. Tom DeLay (R-Texas) was briefed in 2004 about the NSA surveillance in his capacity as House Majority Leader, and any interview with him after June 9 would be dealing with him as a retired Member.
Those retired lawmakers are allowed to use Senate and House counsels to assist with their interviews, since the questioning would be regarding their actions as officials during their Congressional service.
Sens. Daniel Inouye (D-Hawaii) and Sen. Ted Stevens (R-Alaska) were briefed on the NSA’s surveillance program in December 2001, before House and Senate leaders, due to their positions as the top Democrat and Republican on the Senate Appropriations Defense subcommittee, which funds a large chunk of the intelligence services’ budgets.
Inouye said he was unaware that the Justice Department is interested in speaking with lawmakers who were briefed about the program, but said that he couldn’t have been the source for The New York Times report.
Without addressing the particulars of the NSA program and his briefing, Inouye said that the information that appeared in the Times was “something I’ve never been briefed on.”
In addition, Inouye joked that he tries not to remember too much of his classified briefings for fear of breaking the laws. “I do my utmost to forget what I’ve been briefed,” he said. “I might talk in my sleep.”
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.