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Probe intensified { August 24 2002 } Original Source Link: (May no longer be active)
http://www.washingtonpost.com/wp-dyn/articles/A55137-2002Aug23.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A55137-2002Aug23.html
Probe of Hill Leaks On 9/11 Is Intensified
FBI Seeks Records From 17 Senators
By Dana Priest
Washington Post Staff Writer
Saturday, August 24, 2002; Page A01
The FBI has intensified its probe of a classified intelligence leak, asking 17 senators to turn over phone records, appointment calendars and schedules that would reveal their possible contact with reporters.
In an Aug. 7 memo passed to the senators through the Senate general counsel's office, the FBI asked all members of the Senate Select Committee on Intelligence to collect and turn over records from June 18 and 19, 2002. Those dates are the day of and the day after a classified hearing in which the director of the National Security Agency, Lt. Gen. Michael V. Hayden, spoke to lawmakers about two highly sensitive messages that hinted at an impending action that the agency intercepted on the eve of Sept. 11 but did not translate until Sept. 12.
The request suggests that the FBI is now focusing on the handful of senior senators who are members of a Senate-House panel investigating Sept. 11 and attend most classified meetings and read all the most sensitive intelligence agency communications. A similar request did not go to House intelligence committee members.
The request also represents a much more intrusive probe of lawmakers' activities, and comes at a time when some legal experts and members of Congress are already disgruntled that an executive branch agency, such as the FBI -- headed by a political appointee -- is probing the actions of legislators whose job it is to oversee FBI and intelligence agencies.
The FBI declined to comment. Most senators are away for the August recess, but Sen. Bob Graham (D-Fla.), who heads the Senate intelligence committee, said through a spokesman that he is cooperating with the investigation and has asked staff members to gather the requested records.
In recent weeks, FBI agents finished questioning nearly 100 people, including all 37 members of separate House and Senate intelligence committees and some 60 staff members. At the conclusion of their interviews with members and staff, FBI agents typically asked them if they would be willing to take polygraph tests. Most declined.
Requesting calendars, phone logs and schedules over a two-day period "has much more of a fishing-around feel to it, trying to find out which senators are talking to the media," said Charles Tiefer, a University of Baltimore law professor and former House deputy general counsel. "That might frighten senators out of the business of telling the public [through the media] what they need to know."
Some officials generally involved in the probe believe that quashing the release of information to the public about embarrassing or sensitive information related to the Sept. 11 attacks was exactly what the administration intended when it sent Vice President Cheney to chastise committee members for unauthorized leaks that end up in news reports.
Others say that although references to the intercepts had been in print before, the specific words in messages, which might be code words, were never released. Those code words, U.S. intelligence officials said, could well have tipped off the individuals targeted and dried up a source of valuable information.
On June 19, CNN reported the contents of two messages based on NSA intercepts. The Arabic-language messages said, "The match is about to begin," and "Tomorrow is zero hour." Other news outlets, including The Washington Post, also reported on the intercepts.
The NSA, based at Fort Meade, is one of the government's most secretive intelligence agencies. Much of its information carries a higher classification than other sorts of intelligence. It is illegal to release classified information.
For that reason alone, other legal experts knowledgeable about executive-legislative branch relations said that, in a case like this, "criminal matters trump everything else."
Neither congressional historians nor legal experts could recall any situation in which the FBI was probing a leak of classified information in this way.
The closest example cited is the 1972 Supreme Court case involving Sen. Mike Gravel (D-Alaska), who read portions of the classified Pentagon Papers to reporters attending a Senate public works subcommittee hearing on June 29, 1971.
The papers revealed secret war plans and the Joint Chiefs of Staff's opposition to any limits on bombing in North Vietnam and were classified, although some by then had been published in the press.
Before he began the three-hour-long reading, Gravel stated: "I will not accept the notion that the president of the United States can manipulate the United States Senate into silence. It is my constitutional obligation to protect the security of the people by fostering the free flow of information absolutely essential to their democratic decision-making."
He was subpoenaed to testify before a grand jury, as was his aide, as part of an inquiry into the release of secret documents. Gravel challenged the inquiry as a violation of his congressional immunity.
The high court found that the constitutional "speech or debate" clause providing immunity from arrest to legislators only applied in matters that were "an integral part of the deliberative process and communicative process" in considering legislative actions. The clause "does not privilege either senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts."
If publishing the papers, it said, was a crime, "it was not entitled to immunity."
Legal experts said that the privilege protected during speech and debate does not extend to leaking classified information used by legislators to deliberate over legislative matters.
© 2002 The Washington Post Company
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