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Monday, April 20, 2009

A gathering storm or a tempest in a teapot?

CQ Politics reports on alleged attempts by California Democrat Jane Harman to get charges against two AIPAC lobbyists reduced in 2006 (Hat Tip: Memeorandum).
Rep. Jane Harman, the California Democrat with a longtime involvement in intelligence issues, was overheard on an NSA wiretap telling a suspected Israeli agent that she would lobby the Justice Department reduce espionage-related charges against two officials of the American Israeli Public Affairs Committee, the most powerful pro-Israel organization in Washington.

Harman was recorded saying she would “waddle into” the AIPAC case “if you think it’ll make a difference,” according to two former senior national security officials familiar with the NSA transcript.

In exchange for Harman’s help, the sources said, the suspected Israeli agent pledged to help lobby Nancy Pelosi , D-Calif., then-House minority leader, to appoint Harman chair of the Intelligence Committee after the 2006 elections, which the Democrats were heavily favored to win.

Seemingly wary of what she had just agreed to, according to an official who read the NSA transcript, Harman hung up after saying, “This conversation doesn’t exist.”

Harman declined to discuss the wiretap allegations, instead issuing an angry denial through a spokesman.
The allegations are nothing new. They were investigated in 2006 and dropped by the FBI for lack of evidence. But now it is claimed that they were dropped under pressure from then-Attorney General Alberto Gonzales in return for Harman defending a probe of the Bush administration's warrantless wiretap program, a 'scandal' that was just breaking at the time.

Harman did not get the committee chairmanship she sought.

There are a couple of factors that make this story - and its timing - curious. First, note this statement from the CQ article:
“It’s the deepest kind of corruption,” said a recently retired longtime national security official who was closely involved in AIPAC investigation, “which was years in the making.

“It’s a story about the corruption of government — not legal corruption necessarily, but ethical corruption.”
Is the argument being made that Harman did not do anything that was substantively illegal but only something 'unethical'? If so, it seems unlikely she can be convicted of anything.

Moreover, as I noted last month, citing an article by Clarice Feldman, it seems likely that the AIPAC case will be dropped or that the two AIPAC employees will be acquitted.
In sum, this case should not have been brought. Why it was brought is most likely a function of incompetence, if not inappropriate animus toward those who lawfully work in the U.S. advancing Israeli concerns. Whether or not that is the case, the Espionage Act is a creaky, antiquated vehicle for bringing such a case and the judge is too smart to allow the Justice Department’s prosecutors to get away with ignoring the clear words of the statute.

Finally, since no one in the Justice Department has the guts to stop this, it probably will continue on to trial in late May. The government will lose, and the burden which will fall on subsequent prosecutions under the Espionage Act is so substantial that in effect we will be without the means to punish those who (unlike Rosen and Weissman) actually do engage in espionage on U.S. soil.
Josh Marshall raises a number of questions about the case as well.
Among the many questions the story raises are some that Harman should probably answer, but not all. High on my list would be finding out more about the circumstances under which a member of Congress ended up having her phone conversations recorded by the NSA. The article suggests it was a by-the-books wiretap -- part of a highly-classified probe of Israeli agents in the US, which led to the indictments of two AIPAC employees -- and not one of the 'warrantless' ones. But we've seen so much funny business on that front that I'm not sure that's enough information.

Next, is it possible Harman knew these tapes existed and was compromised vis a vis the administration? That's purely speculation on my part. Nothing in the article suggests that. But hearing it alleged that Gonzales protected her because he knew she'd be so helpful -- that really makes me wonder.

This raises lots and lots of questions -- not least of which is why this is coming out right now. Any particular reason people in the intel community would want to start talking to the press right now?
I can suggest an answer to the last question anyway. Yes, the AIPAC case is scheduled to go to trial next month. The 'intel community' may be seeking new evidence to make the AIPAC charges stick. A juicy story involving bribing an influential Democratic congresswoman and the disgraced former Attorney General killing an investigation into a Congressional Democrat's actions because he needed her, may be just what the US Attorney ordered.


At 6:01 PM, Blogger Steve said...

It seems like there's one other wrinkle here - was the person on the other end of Harman's conversation a US citizen?

Josh Marshall is running updates on this story, reporting that the "agent" may be Haim Saban, a naturalized US citizen. Josh reports:
There are obviously a lot of facts we don't know here. But if Saban is the interlocutor, it seems to me that any legal case against Harman would likely be very shaky since the claim that Saban was an agent of a foreign power would quite likely be legally unsustainable.


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