As U.S. President Barack Obama appeared at the CIA Monday, a conflagration sparked by his administration's decision last week to release Bush-era memos describing harsh interrogation techniques was having gasoline poured on it.
Though Obama pointedly said he would decline to pursue any legal action against the intelligence officers involved, his decision seems to have left the intelligence community, and in particular its Bush-era leadership, feeling targeted. Even as Obama chief of staff Rahm Emanuel reiterated the White House's desire to move forward, several former intelligence directors and former attorney general Michael Mukasey took to the talk shows and oped pages to argue against the Obama administration's decision to release the memos.
The memos' release coincided with a report in the New York Times last week alleging that the NSA had captured the communications of an unidentified congress-member without a warrant and committed other recent abuses as part of the controversial domestic surveillance program.
So it's perhaps not surprising that Bush-era intelligence officials might want to push back against a Democratic congresswoman and, by extension, the Democratic Congress as well. After all, even as the Obama administration insists it opposes any legal action against those involved, Democrats on the Hill might feel pressured to step up their investigations and even pursue legal actions. The message of the pushback is loud and clear: Congress and the Democrats weren't innocent in these activities either.
Overnight Sunday, CQ's Jeff Stein reported that California Democrat Jane Harman was caught on an NSA wiretap in 2005 allegedly offering to try to help someone described as a "suspected Israeli agent" get charges reduced against two former AIPAC officials accused of trafficking in national security information. In exchange, the report said, the so-called Israeli agent (initially identified by JTA's Ron Kampeas as Haim Saban, an Israeli-American donor to both the Democratic party and AIPAC as well as a Middle East studies program at the Brookings Institution) reportedly offered to lobby Democratic leader Nancy Pelosi (D-CA) to make Harman chairman of the House intelligence committee should the Democrats retake the House in 2006.
The gist of the Harman-Saban-AIPAC story had been previously reported by Time magazine back in 2006.
But Stein offered several new wrinkles, including sources alleging that Harman's communication with the suspected "Israeli agent" was reportedly captured by the NSA and not the FBI. (Hill intelligence committee sources cast doubt Monday on whether the NSA was the relevant agency here). Stein's story contained descriptions of the Harman-"Israeli agent" conversation supposedly on the transcript of the captured communication. It also newly alleged that former CIA director Porter Goss - a past colleague of Harman's on the House intelligence committee - signed off on a FISA warrant authorizing a wiretap of the California congresswoman. And it also newly alleged that then Attorney General Alberto Gonzales had squashed the investigation of Harman because he said she was an ally in making the case against public revelation of the administration's secret NSA domestic surveillance program.
In a statement issued through a spokesman to CQ's Stein, Harman vehemently denied the charges. "These claims are an outrageous and recycled canard, and have no basis in fact," Harman said in a prepared statement, according to Stein. "I never engaged in any such activity. Those who are peddling these false accusations should be ashamed of themselves."
A call to Harman's office Monday by Foreign Policy was not returned. But her office put out a lengthier statement Monday, saying she had never contacted the Justice Department concerning the AIPAC case, nor ever been informed by the Justice Department that she was a subject of, or involved with any investigation. "The CQ Politics story simply recycles three year-old discredited reporting of largely unsourced material to manufacture a 'scoop' out of widely known and unremarkable facts - that Congresswoman Jane Harman is and has long been a supporter of AIPAC, and that some members of AIPAC regarded her as well-qualified to chair the House Intelligence Committee following the 2006 elections. Congresswoman Harman has never contacted the Justice Department about its prosecution of present or former AIPAC employees and the Department has never informed her that she was or is the subject of or involved in an investigation. If there is anything about this story that should arouse concern, it is that the Bush Administration may have been engaged in electronic surveillance of members of the congressional Intelligence Committees."
But if one expected the relevant agencies and actors in the story to issue equally vehement denials, that wasn't the case on Monday. The Office of the Director of National Intelligence sent inquiries to the Justice Department. The Justice Department said it wouldn't have any comment and didn't anticipate having any anytime soon. Goss denied to comment to CQ, as did Alberto Gonzales.
What is going on?
A former intelligence official familiar with the matter told Foreign Policy on condition of anonymity Monday that Goss had been asked due to the unavailability of FBI director Robert Mueller to certify a FISA warrant that was seemingly triggered by a captured communication between Harman and someone who was already being surveilled by the U.S. government (presumably, the suspected "Israeli agent"). Furthermore, the former intelligence official said, longstanding protocol involving the separation of powers required that when intelligence exists that includes a member of Congress, that the heads of the body in which that member sits, in this case, the top Republican and Democratic in the House of Representatives, then House speaker Denny Hastert (R-IL) and minority leader Nancy Pelosi, (D-CA) be informed.
Pelosi preceded Harman as the ranking Democrat on the House Intelligence Committee, during Goss's chairmanship of the committee, and before his appointment in late 2004 to become CIA director. While it's been fairly widely reported that Pelosi and Harman don't get along, and sources said Harman and Goss also had difficult relations, Pelosi and Goss are said to be on good terms. Pelosi awarded Goss the Distinguished Service* award in 2006, one source said. Pelosi also more recently signed off on Goss being made co-chairman of a bipartisan panel overseeing Congressional ethics. (This even though Goss was CIA director when he made what some in the Agency thought a controversial decision to appoint Kyle Dustin Foggo to be the number three official at the CIA. Foggo was recently sentenced to three years in prison after pleading guilty on a corruption-related case.)
A former senior U.S. intelligence officer said he heard during work on the Hill in the 2004 time period of whispers among members of the intelligence committees and their staffs that Harman was allegedly caught up in some Israel-related case that would likely prevent her from getting the chairmanship of the committee she sought. He also said that it was clear that Goss and Harman (and their staffs) fiercely disliked each other.
But he wondered if the timing of this story was about changing the subject, from what Bush-era officials had authorized, to what the Congress was complicit in. "Is this about taking pressure off the revelations of waterboarding and the memos?" he speculated. "And the fact," he added, "that no real intelligence came out of this whole effort?" referring to the enhanced interrogation/torture regime revealed in the memos, which he said produced no actionable intelligence.
(For his part, Stein said in an online chat Monday afternoon that he had had the story for a while, and only decided to move on it now.)
But the former intelligence official familiar with the matter noted that Goss has given only one on-the-record interview on these CIA controversies since leaving the CIA director job. In the December 2007 interview, he said that Congressional leaders, including Representatives Pelosi and Goss himself, Sen. Bob Graham (D-FL) and Sen. Richard Shelby (R-AL), and later Rep. Harman, Sen. Jay Rockefeller (D-WV) and Sen. Pat Roberts (R-KS), had been briefed on CIA waterboarding back in 2002 and 2003. "Among those being briefed, there was a pretty full understanding of what the CIA was doing," Goss told the Washington Post. "And the reaction in the room was not just approval, but encouragement."
Who was the lone lawmaker the article identified as objecting to the program?
"Harman, who replaced Pelosi as the [House intelligence] committee's top Democrat in January 2003, disclosed Friday that she filed a classified letter to the CIA in February of that year as an official protest about the interrogation program," the Post reported. "Harman said she had been prevented from publicly discussing the letter or the CIA's program because of strict rules of secrecy. ‘When you serve on intelligence committee you sign a second oath -- one of secrecy,' she said. ‘I was briefed, but the information was closely held to just the Gang of Four. I was not free to disclose anything.'"
UPDATE: Goss received the Congressional Distinguished Service Award in 2006, not the Congressional Medal of Honor, as previously reported. FP regrets the error.
John Hudson reports on national security and foreign policy from the Pentagon to Foggy Bottom, the White House to Embassy Row, for The Cable.