from the FAS Project on Government Secrecy
Volume 2009, Issue No. 36
April 21, 2009

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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.

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:


"The value and the major limitations" of a recently released CIA documentary collection on Col. Ryszard Kuklinkski, the Polish official who provided a vast quantity of political and military intelligence to the CIA in the 1970s and early 1980s, are assessed by Mark Kramer of Harvard University in a new publication of the Cold War International History Project. See "The Kuklinski Files and the Polish Crisis of 1980-1981," March 2009:

The Office of Technology Assessment played a significant role in informing Congressional deliberations on science policy over the course of two decades and generated a body of policy analysis that retains much of its value years after OTA was terminated in 1995. Today, "the argument to restart the OTA is overwhelming," argued Gerald Epstein in an essay in Science Progress.

Had Amb. Charles Freeman not withdrawn from his appointment as chairman of the National Intelligence Council, under pressure of controversy regarding his views on Israel, Saudi Arabia and China, he would have attempted to alter the Intelligence Community's classification practices, he said in an interview with Jim Lobe of Interpress Service news agency. "I would have liked to have tried to change the culture to value lower levels of classification rather than higher in terms of output," Amb. Freedman said. "In general, I would’ve tried very hard to encourage members of the intelligence community to use classified information as a form of corroboration for information that is not classified, or is not terribly sensitive even if it is classified. In other words, I would urge analysts to write down rather than write up terms of levels of classification."


Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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