State of play in the Harman case

Rep. Jane Harman has hired lawyer Lanny Davis, a former special counsel to President Bill Clinton during the Lewinsky affair, as a media advisor, The Cable has learned.

The enlisting of the heavyweight help is the latest sign that the California Democrat intends to push back hard against what she sees as an attempt by current and former national security officials to damage her reputation by providing alleged excerpts from transcripts of her surveilled phone conversations to the press. In the end, Harman may be able to make a public case that she was the victim of an abuse of power, including by the decision of Porter Goss, a former fellow House intelligence committee member turned director of central intelligence, to authorize a wiretap of her. She may also argue that the leaks of the alleged wiretap excerpts constitute a criminal act that merits prosecution.

Citing unnamed sources, CQ‘s Jeff Stein first broke the story, subsequently echoed in the New York Times, that sometime between 2004 and 2005, Harman was asked by an interlocutor already under U.S. government surveillance and described as a suspected "Israeli agent" to help seek leniency for two former officials with the pro-Israel lobby group AIPAC. The two men were indicted in 2005 on charges related to unauthorized disclosure of national defense information.

Director of National Intelligence Adm. Dennis Blair (ret.) said Monday that the NSA was not involved in placing a wiretap that captured any communication of Harman. The implication of his remarks, reported by the Associated Press, is that Harman was caught on a wiretap by the FBI, and that her interlocutor presumably targeted by the wiretap was also likely a U.S. person. Harman has said that any conversation she would have had about AIPAC would have been with a U.S. citizen.

While acknowledging Blair’s remarks, a spokesperson for the Office of the Director of National Intelligence directed questions to the Justice Department, which said it was not commenting on the case.

According to both the CQ and the Times accounts, Harman’s interlocutor offered to enlist Haim Saban, a major Israeli-American donor to the Democratic Party and AIPAC, to pressure House Democratic leader Nancy Pelosi (D-CA) to give Harman the chairmanship of the House Intelligence committee should the Democrats take the House in the ’06 midterm elections. Harman was widely known to be seeking the chairmanship of the committee.

Harman has firmly denied using her influence to seek leniency for the former AIPAC officials with anyone, or agreeing to any sort of quid pro quo.

The stories further allege that then Attorney General Alberto Gonzales quashed an investigation of Harman because he said he "needed Jane" to help dissuade the New York Times from publishing what became its 2005 Pulitzer prize winning story on the NSA’s warrantless domestic wiretapping program. The Times has since reported that Harman did speak with the paper to argue against publication, and she has consistently opposed public revelations of the classified NSA program.

Although Harman took the Bush administration’s side in that debate, she has criticized its program authorizing the CIA to subject terrorism suspects to harsh interrogation techniques, including waterboarding. Upon being briefed on the covert program in January 2003 when she became the ranking Democratic on the House intelligence committee and a member of the "Gang of Four," Harman filed a classified letter registering her opposition.

A former intelligence official familiar with the matter has previously confirmed to The Cable that then Director of Central Intelligence Porter Goss certified a FISA warrant based on the alleged captured communication between Harman and the unidentified suspected "Israeli agent." It’s not clear, however, that Harman ever did become a target of a FISA warrant authorizing her communications to be surveilled. A 2006 alleged communication between Harman and the suspected "Israeli agent" subsequently reported by CQ suggests the captured communications of Harman may be confined to her conversations with the previously targeted figure.

As the top Republican and Democrat on the House intelligence committee from 2002-2004, Goss and Harman were among the few lawmakers privy to controversial covert programs such as NSA warrantless domestic surveillance and waterboarding undertaken by the Bush administration in its war on terror. Although the two representatives were not openly hostile, their staffs are said by many sources to have fiercely disliked each other.

When Goss went on in late 2004 to head the CIA, he took many of his House staff with him, where they became known, not affectionately, as the "Gosslings" by some CIA operations veterans who found them highly partisan.

Given such a history, Goss’s decision to authorize a FISA warrant that would tap a former fellow lawmaker and rival seems potentially troubling. What’s more, it raises the question of why FBI Director Robert Mueller was unavailable — or perhaps made himself unavailable — to sign off on the FISA warrant himself. A report this week by CQ said then Director of National Intelligence John Negroponte also tried to shut down what became a seemingly rogue effort to pursue investigation of Harman.

A point of friction between Harman’s and Goss’s staffs was the revelation in November 2005 that a member of the House intelligence committee, Rep. Randy "Duke" Cunningham (R-CA), was pleading guilty in a massive corruption scheme that was underway for years during Goss’s chairmanship. Harman’s decision a year later to release the unclassified portion of a report related to the Cunningham case also angered Republican lawmakers. In May 2006, it was revealed when the FBI raided his offices at the CIA that a man Goss had appointed to be the No. 3 official at the CIA was also implicated in the wider Cunningham corruption case, and Goss was forced to resign. The official, Dusty Foggo, recently pleaded guilty and was sentenced to three years in prison.

Former FBI counterintelligence official David Szady, who led the investigation that targeted the AIPAC figures, told the New York Times in an interview last week that he was confident Harman had never sought to intervene in the case. "In all my dealings with her, she was always professional and never tried to intervene or get in the way of any investigation," Szady told the Times. The remark, while exonerating, is still perhaps puzzling. Why would an official who had been involved in a sensitive counterintelligence investigation yet to go to trial comment about the actions of someone who the government has not acknowledged was a subject of investigation in the case? How would he know who Harman had or had not lobbied on the matter? The Justice Department, for its part, denied comment. Szady could not be reached.

Harman, of course, did not become intelligence committee chairman as she hoped. Pelosi has acknowledged that she was informed in 2006 of the fact that Harman was captured on some sort of government surveillance, but said that did not factor into her decision to give the chairmanship to Rep. Silvestre Reyes (D-TX) instead of Harman. (Pelosi’s explanation is that Harman had already served two terms on the committee.)

Dennis Hastert, the former House majority leader, has also told CQ that he was informed by a CIA-connected "whistleblower" in 2006 that Harman was captured on the wiretap. The Justice Department reportedly rebuffed Hastert’s query on the matter for weeks, ultimately saying there was nothing to inform him about. Hastert’s aides, CQ reported, subsequently became worried about the "whistleblower."

"At that point, Hastert’s aides grew concerned that the whistleblower ‘was becoming agitated’ and that the existence of the wiretap might surface, which would have the twin effect of exposing a highly classified operation and unfairly ‘smearing’ Harman as a foreign agent herself," CQ‘s Stein reported this week.

It’s a concern that seems to have been validated by recent events.

Meantime, in the seemingly low level proxy war between competing factions, the Harman camp has scored perhaps one under the radar victory. A former top Harman aide and minority general counsel on the House intelligence committee, Jeremy Bash, has become chief of staff to Obama’s new CIA director, Leon Panetta.

[UPDATE: The Washington Post reported April 22nd that Harman’s conversation was picked up on an FBI, not an NSA wiretap.]

More thoughts on the case from TPM’s Zachary Roth and myself.