Harman, AIPAC, and Leaks

04.21.09 | 4 min read | Text by Steven Aftergood

Updated below

By all authoritative accounts, Rep. Jane Harman (D-CA) did not interfere in the investigation of two former pro-Israel lobbyists who were suspected of unlawfully receiving and transmitting classified information.  She did not seek to win favorable treatment for them from the Justice Department.  They did not receive any such treatment.  And she did not become chair of the House Intelligence Committee.

Nevertheless, she stands accused of saying that she would get involved in the case of the pro-Israel lobbyists in exchange for outside efforts to promote her candidacy to be chair of the House Intelligence Committee.

In a widely cited story in CQ Homeland Security, Jeff Stein reported that several former government officials had told him that Rep. Harman had been captured on a National Security Agency wiretap speaking with an unidentified “suspected Israeli agent” agreeing to “waddle into” the controversial case of the two former AIPAC officials, who were charged under the Espionage Act with mishandling classified information, and to try to get the charges against them reduced.  “In exchange for Harman’s help,” Stein wrote, the suspected Israeli agent pledged to help lobby for Harman’s appointment as intelligence committee chair.

Rep. Harman denied any misconduct.  “These claims are an outrageous and recycled canard, and have no basis in fact,” Harman said in a statement to CQ. “I never engaged in any such activity. Those who are peddling these false accusations should be ashamed of themselves.”

In a follow-up story by Neil A. Lewis and Mark Mazzetti, the New York Times confirmed the existence of an NSA recording, but also added several important points.

David Szady, the former FBI counterintelligence official who zealously led the investigation of the two AIPAC suspects told the Times that Rep. Harman never interfered in his pursuit.  “In all my dealings with her, she was always professional and never tried to intervene or get in the way of any investigation,” Mr. Szady said.

(The trial of the AIPAC defendants, Steven Rosen and Keith Weissman, who are charged with multiple counts of violating the Espionage Act, is scheduled to begin on June 2.)

The Times did not independently confirm the CQ claim that former Attorney General Alberto Gonzales had quashed an investigation into Rep. Harman’s statements purportedly because he wanted her support of the Bush Administration’s warrantless surveillance program. [Update, 4/24/09: In a follow-up story published April 23, the Times did independently confirm that Gonzales intervened in the case.]

The Times reported that an official familiar with the NSA transcript said that Rep. Harman “appeared to agree” to intervene in the AIPAC case in exchange for support of her chairmanship of the House Intelligence Committee.

But by introducing some equivocation about her “apparent” agreement, the Times implied that the transcript is susceptible to other interpretations.  It also highlighted the least credible aspect of the story — the alleged quid pro quo between Harman and the “suspected Israeli agent.”

What makes the quid pro quo allegation questionable is that neither side of the reported conversation seemed to need an inducement to act as described.  Of all potential candidates for chair of the House Intelligence Committee (Harman, Hastings, Reyes), Harman’s views have probably been closest to those of pro-Israel lobbyists.  Their support of her was not in doubt.  Nor did Rep. Harman require extraordinary incentives to be concerned about the prosecution of the former AIPAC officials.  That case has drawn widespread criticism (including from Secrecy News) for its over-broad reading of the Espionage Act that would make even the receipt of classified information a crime.

Ironically, the single identifiable crime in this whole story is the unauthorized disclosure of the classified contents of an intelligence intercept to CQ, and then to the New York Times.  While there is no categorical legal prohibition against all classified leaks, several specific categories of classified information are protected by statute and their release is a felony offense.  Under 18 U.S.C. 798, one of those is the unauthorized disclosure of communications intelligence, like that gathered by NSA.

Jeff Stein provides a second-day review and update of the story here.

Update: In an April 21 letter to the Attorney General (pdf), Rep. Harman demanded the release of “all transcripts and other investigative material involving me in an unredacted form. It is my intention to make this material available to the public.”

“Let me be absolutely clear: I never contacted the Department of Justice, the White House or anyone else to seek favorable treatment regarding national security cases on which I was briefed, or any other cases,” she wrote.