Leaks Probe Evaporates

Posted March 19, 2003 at 6:16pm

As the White House prepares to provide lawmakers daily intelligence briefings on the state of the imminent invasion of Iraq, key Senators say an FBI probe begun last summer into an alleged leak of highly sensitive information provided to a Congressional panel investigating the Sept. 11, 2001, terrorist attacks has simply faded away, apparently with no resolution to the controversy.

Sen. Trent Lott (R-Miss.), who was serving as Minority Leader when the probe began and is still a member of the Intelligence Committee, said the FBI’s investigation “just kind of frittered away. I don’t know what the conclusion was. It was a little awkward situation, to say the least.”

A veteran Senate Democrat who serves on the Intelligence Committee joked that the whole incident seems “to have floated away like a spore on the breeze.”

Sen. Bob Graham (D-Fla.), the former chairman of the Intelligence Committee and one of two lawmakers who actually asked the Justice Department to find the source of the alleged leak in the first place, said he has not heard from FBI officials in months about the status of their investigation.

“The FBI has not informed me that they have either completed their investigation or are prepared to do something more,” Graham said.

Graham added that he was interviewed by FBI agents last year on the topic, and believes his office made available to the special agents any records they were seeking, but never has had any follow-up discussions with the bureau on the matter. “I’m not aware of any other activities on their part,” he said.

The furor erupted last summer just as the oversight panel was beginning its work just as questions were being raised about the preparedness of the Bush administration in the months before the Sept. 11, 2001, terrorist attacks. [IMGCAP(1)]

In an extraordinary move, the leaders of the Congressional panel called in the FBI to investigate after Vice President Cheney complained to Graham and House Intelligence Chairman Porter Goss (R-Fla.) about the alleged leak, which came a day after the National Security Agency director, Lt. General Michael Hayden, testified to the joint House-Senate panel.

Hayden told the lawmakers about highly classified radio intercepts of two messages that hinted at impending action by al Qaeda terrorists shortly before Sept. 11. The messages, originally in Arabic, were not translated until after the attacks occurred.

One day after Hayden’s appearance before the joint panel, CNN aired a report on his testimony. While the existence of the messages had already been reported, White House officials said they were furious over the leak, and the hunt for the leaker was on. Goss and Graham asked Attorney General John Ashcroft to conduct the inquiry, despite the fact that both House and Senate rules specifically require the ethics committees of the respective bodies to handle such probes.

The Congressional acquiescence created an almost surreal situation where the Congressional officials charged with overseeing and investigating the intelligence agencies were themselves the subject of an investigation by the very same FBI that they were investigating.

FBI agents questioned dozens of lawmakers and staffers about the leak, although they quickly began to focus on members of the Senate Intelligence Committee. There was even talk of polygraphs for Senators on the panel, a number of whom were asked whether they would submit to the procedure. An FBI memo was sent to the Senate legal counsel’s office in early August asking Intelligence Committee members to turn over their phone logs and other documents from June 18 and 19 of last year.

While most lawmakers quietly complied with the FBI, some Senators bristled at the request for information. Now-retired Sen. Fred Thompson (R-Tenn.), a member of the Intelligence Committee at the time, charged that the FBI probe was a violation of the Constitution’s separation of powers.

“The whole process concerns me,” said Thompson. “At a time when we’re investigating the FBI, they’re investigating us? It really bothers me.”

Sen. Robert Byrd (D-W.Va.) thundered that the nation “must guard against turning our country into a police state where personal privacy rights are trampled in the name of the Justice Department. This must not be the price for security in these United States.”

Now, months later, no one at the Justice Department or FBI wants to talk about the case. Ashcroft himself refused to comment when asked about the investigation last week during a visit to Capitol Hill. FBI and Justice Department officials were unavailable as well.

Goss said FBI agents remain on the case, although he added that it was up to the bureau to talk about their efforts.

“As far as I know, that is still under investigation by the FBI,” said Goss, himself a former CIA agent. “The ground rules are that they do all the communicating.”

Charles Tiefer, a University of Baltimore law professor and former deputy general counsel to the House, said that episode demonstrated skillful use of the FBI by the White House.

“First, the FBI questioned every Senator and Representative on the Intelligence committees in a little room with not-so-subtle intimidation like suggesting polygraphs, and then holds the matter quietly, neither formally closed nor still active,” Tiefer said.

“The administration knows that this avoids embarrassing questions about why it resorted to such inappropriate anti-Congress tactics in the first place while the Intelligence Committee members are kept under the shadow of their never-closed FBI dossiers,” Tiefer added.

As for the Senators themselves, several had to be reminded that the FBI was even investigating them, and none seemed to have any idea how it was all resolved in the end.

Senate Minority Leader Thomas Daschle (D-S.D), an ex officio member of the Intelligence Committee, was also perplexed when queried about the status of the probe. “That’s a good question. What did happen with it?” Daschle asked.

“I don’t know what happened to that,” added Sen. Richard Shelby (R-Ala.), who was the vice chairman of Intelligence at the time of the leak.

Sen. Orrin Hatch (R-Utah), who was publicly slammed by the White House for his own leak of sensitive information about Osama bin Laden in the immediate aftermath of the Sept. 11, 2001 attacks, said he never had any additional contact with the FBI beyond an initial interview, and never took a polygraph.

“I don’t know what happened,” Hatch said. “I never heard anything more about it.”

Current Senate Intelligence Chairman Pat Roberts (R-Kan.) said FBI agents interviewed every member of the joint House-Senate panel on the leak, as well as “a lot of staffers. I think they focused on one or two reporters as well.”

Roberts repeatedly emphasized that he thought one or more lawmakers were the source of the leak. “In these kind of things, it’s my contention that it’s not the staff, its Members,” said the Kansas Republican. “Like moths to a flame, Members will say things they don’t mean and that will cause problems.”

Roberts joked that the only way to prevent lawmakers from inadvertently leaking classified information was to “duct tape them.”

Roberts said he intends to bring this issue up with FBI officials the next time they appear before his panel to talk about reforming the bureau, although he will not press the matter during any military campaign in Iraq. “Sooner or later, we’ll have the FBI up here to discuss reform and I’ll ask them about it,” he said.