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L.A. Daily Journal July 3, 2002

Snooping Around on Capitol Hill Is FBI Inquiry a Full-Blown Leak Investigation or Just for Show?

By James Gordon Meek

WASHINGTON -- In the blame game following the worst terrorist attacks in U.S. history, some of those investigated in government now are investigating the investigators.

That's more than just a tongue twister -- it describes the present state of a seemingly troubled congressional probe into U.S. intelligence failings before Sept. 11.

A joint House and Senate Intelligence Committee is investigating what intelligence officials knew about terrorist threats to the homeland and when they knew it, and one of the targets is the FBI.

But the FBI, at the request of the committee chairmen, is investigating alleged leaks of classified information by the committee's members or staff.

The investigation potentially puts agents in a conflict of interest, or at least creates the appearance of one.

At issue was the disclosure last month to the media that the National Security Agency had intercepted al-Qaida communications on Sept. 10 indicating that "tomorrow is zero hour," an Arabic message that wasn't translated until Sept. 12.

The information was classified secret. But after CNN reported the intercept and that it had come from congressional sources, intelligence sources confirmed it to other news outlets.

Some senators and expert observers are fretting over the propriety of the decision by committee leaders to ask the Department of Justice to open a criminal inquiry.

"I personally have real qualms about that," Orrin G. Hatch, R-Utah, a Senate Select Committee on Intelligence member, said last Wednesday, according to Congressional Quarterly. "It's a little unseemly to have the people we're investigating investigate us."

Though the FBI agents on the leak probe likely will be drawn from the criminal investigative division rather than national security units under scrutiny for allegedly not connecting pre-Sept. 11 dots, having the bureau nose around the Hill is problematic, said a former senior intelligence official, who asked not to be named.

"The thing I would worry about is a combination of the perception and the fact that people are human beings and there's bound to be an uneasiness there," the former official said.

Terry L. Cooper, a USC professor of law enforcement ethics, said the FBI shouldn't be snooping around the intelligence oversight committee during this special review.

"If the leak investigation is real, it puts the FBI into an obvious conflict of interest," Cooper said. "They're interested parties in this whole thing."

Elizabeth Rindskopf Parker, dean of the McGeorge School of Law and a former CIA and NSA general counsel, said concern is misplaced.

"The FBI is not in a position to influence the outcome of the [congressional] review," Rindskopf Parker said.

Neither will they be able to influence "what committee members make of the basic facts," she said.

The notion of the FBI probing an oversight committee that is itself probing the FBI strikes some as almost comical.

It's like a "circular firing squad," said intelligence expert John Pike of GlobalSecurity.org.

But Pike doubted that the FBI is really trying to track down a leaker, surmising instead that the referral to the Justice Department really was intended to stifle further disclosures.

"The message is [that] loose lips sink ships," he said, invoking a famous World War II-era secrecy mantra. "If there's any inquiry, I think it will be entirely pro forma."

The proof may be in that the NSA intercept -- first disclosed by the Washington Times last September -- was almost trivial amid the hundreds of thousands of classified intelligence documents the joint House-Senate panel has received and kept confidential in recent months, Pike said.

But other intelligence experts, such as Jeffrey Smith, a former CIA general counsel now at Arnold & Porter in Washington, argue that the FBI leak investigation is as grave as the unauthorized disclosure itself.

"Those leaks are serious blows because the window closes and you can't see what's going on inside the house anymore," Smith said, citing a 1998 leak revealing that terrorist Usama bin Laden's satellite phone was being monitored by the United States.

Afterward, bin Laden ceased using the telephone.

So is the FBI really beginning a full-blown leak investigation? Or is it just meant for show?

FBI representatives directed inquiries about the new probe to the Department of Justice. An administration spokesman there refused to comment on the leak investigation.

"All we're acknowledging is that the chairmen of the joint intelligence committee referred the matter to the attorney general," Justice Department spokesman Mark Corallo said.

In a press conference two weeks ago on Capitol Hill, the chairmen said as much.

"There has been a report that has reached the highest levels of the White House that has said that congressional sources may have been involved in a leak of information," Rep. Porter Goss, R-Fla., former CIA agent and chairman of the House Permanent Select Committee on Intelligence, said.

Goss said that the committee on June 13 asked Attorney General John D. Ashcroft to inform its leaders if inappropriate leaks came from Congress so that the committee could "take appropriate action."

The move followed a reportedly angry call from Vice President Dick Cheney to the chairman of the Senate intelligence committee, Sen. Bob Graham, D-Fla., about the leak of the NSA intercept to CNN.

"They're trying to keep the congressional investigation out of the news by discouraging the daily drip, drip, drip of 'this is what we learned today' news coverage," Pike said.

He noted that, for several weeks, the White House lost control of "The Message," as public relations is referred to in this city, and was forced to defend itself from political "Bush knew" rhetoric that implied the president could have prevented the terrorist attacks last fall.

Cheney was "not a happy man," when he called, Goss said.

Yet even veteran FBI agents doubt the bureau's leak investigation has teeth.

Two FBI sources, who are familiar with this type of probe and have a combined 50 years of sleuthing experience, say such inquiries rarely produce results because it is often impossible to pin down who leaked classified information to a reporter.

Short of circumstantial evidence such as telephone toll records, proving a leak from a source to a reporter is difficult, said an FBI agent on the West Coast, who spoke on condition of anonymity.

The other FBI agent -- this one working on the East Coast -- said the political dynamic can't be overlooked, either.

"On Capitol Hill, it's just impossible to use the kind of intimidating investigative techniques that detectives and FBI agents use in other criminal investigations," said the veteran agent, who gave as examples "'good cop, bad cop' oblique threats and ruses."

Congressional leaders and the Bush administration might be using the simple existence of an FBI criminal probe to scare would-be leakers from sharing sensitive information.

"Even when these investigations are unsuccessful in finding the leaker, they do often have a chilling effect on further disclosures," the agent said.

If the FBI's leak investigation doesn't amount to much more than a scare tactic intended to silence those contemplating a leak, that's inappropriate, Cooper said.

Investigations of classified disclosures by Congress -- which are not always violations of law -- are rare but not unheard of.

Exactly 31 years ago this week, a U.S. senator from Alaska serving on the Public Works Committee read into the record 47 volumes of "Top Secret-Sensitive" documents about Vietnam policy known as the "Pentagon Papers." A federal grand jury tried to subpoena an aide to the senator regarding that action, but the Supreme Court ruled that the aide was conducting constitutionally protected legislative business on behalf of the lawmaker and was therefore immune from questioning. Gravel v. United States, 408 U.S. 606 (1972).

The intelligence community frequently reports information about unauthorized leaks to the Justice Department, but few cases result in investigations and fewer still end in criminal prosecutions, according to Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists.

No member of Congress has ever been prosecuted for leaking confidential or classified information to the media, though many have done it, and some have been caught in the act of doing it.

In 1987, Sen. Patrick J. Leahy, D-Vt., admitted that he showed an NBC News reporter a draft of the Senate intelligence committee's unreleased Iran-Contra report. Leahy, today chairman of the Senate Judiciary Committee, was blasted by then-Rep. Dick Cheney, who served as ranking Republican on the House intelligence committee.

While no classified information was leaked in that case, Leahy resigned from the Senate intelligence committee amid the flap.

When Sen. Robert Torricelli, D-N.J., served in the House, he was accused of leaking secret CIA documents regarding human rights abuses in Guatemala. The material was provided by a CIA agent Torricelli later hired. Neither were prosecuted.

In fact, there have only been two cases of individuals prosecuted for leaking government secrets to journalists.

The first was the unsuccessful prosecution of former Defense Department official Daniel Ellsberg, who disclosed the Pentagon Papers to the New York Times and other newspapers in 1971.

The second case, in the 1980s, involved naval intelligence analyst Samuel Morison, who provided Jane's Defence Weekly with secret U.S. surveillance photos of a Soviet nuclear-powered aircraft carrier under construction. That got him a two-year stretch in federal prison, but President Clinton pardoned Morison on his last day in office.

The inbred nature of the FBI's involvement in the joint congressional probe of Sept. 11 missteps is only the latest odd development in the short history of the high-profile review.

In April, a former CIA inspector general named Britt Snider, who was running the Sept. 11 probe, abruptly resigned and was temporarily replaced by his deputy, Rick Cinquegrana, on detail from the CIA inspector general's office. A few weeks ago, a former Pentagon inspector general, Eleanor Hill, took charge of the 23-member staff.

The joint committee has heard from few witnesses, however, during its closed-door sessions, which have been mired at times with procedural disputes among members.

At the very least, said a former Justice Department senior official, the leadership upheaval and leak investigation must be distracting to the staff, who may be challenged to find inspiration in their work.

But the Sept. 11 review is moving forward at full steam, according to knowledgeable sources.

Pike said that, even if the FBI's inquiry is intended as no more than a stern message to leakers and to restore the committee's investigative credibility, a determined agent could make waves.

"Never underestimate the potential of patriotic, energetic people to do things that seemed like a good idea at the time," he said.

Rindskopf Parker said she has pursued leakers during her government career but doubted any substantive measures will be taken against those who distributed sensitive information to reporters last month.

"There's never any prosecution out of a leak investigation. That's part of the problem," she said. "If what's happening here is a message is being sent that says, 'We're serious about this,' then that's probably good."

Copyright 2002, L.A. Daily Journal