Major battle brewing over leaks in Senate

FBI inquiry into release of 9/11 reports raises a question of who polices Congress.

This is a city where leaking has become an art form. The stealthy release of a tidbit that can push an agenda, or sway or test public opinion is so common that it is rarely even scrutinized.

But in post-9/11 America, that is changing. Leaks of information – especially classified and sensitive to the country's war on terror – are being vigorously chased down.

One of the most serious is the FBI's current investigation into the Senate Select Committee on Intelligence. It is alleged that a member or staffer leaked the classified text of two terrorist messages that the ultrasecret National Security Agency (NSA) had intercepted on Sept. 10 about an imminent attack.

What it adds up to is an unprecedented probe of Congress by the FBI, raising complicated questions about the separation of powers not seen since the days of the Pentagon Papers in the early 1970s.

For one thing, the case involves an agency of the executive branch, the FBI, investigating another branch of government. Both House and Senate rules specify that leaks on the Hill should be probed by their own ethics committees. Though congressional leaders themselves called for the FBI to come in, many lawmakers balk at the precedent it is setting.

Even more worrisome to some, the FBI is investigating the body responsible for its own oversight. In fact, a joint House-Senate panel is in the midst of conducting a review of intelligence lapses by the FBI and CIA that occurred prior to 9/11.

"It's maybe not a conflict of interest," says a former high-level intelligence official. "But it is definitely an embarrassing kind of conflict of responsibilities."

Consequently, how this investigation plays out is of paramount concern here. So far, the probe is centered on the Senate Intelligence Committee only. If the FBI determines a lawmaker leaked information, the Justice Department would have to turn it over to the Senate for action, which is where the constitutional clash starts to comes in.

"There's a little problem here in that the [federal] rules for revealing classified information apply to the executive branch," says a former Senate Intelligence Committee staff member.

Moreover, Congress has always claimed the right to discipline its own. "Ultimately, the framers and the court intended Congress to be the political branch," says Senate historian Richard Baker. "You have to reach Congress through political means ... not through judicial means."

At the least, the FBI's investigation will hinder the joint panel's probe. "It has already led to some delay in the work of the committee," says the former intelligence official. "In the worst case, it could undermine the credibility of what they are doing."

The request to bring in the FBI was made by the chairmen and ranking members of both the Senate and House Intelligence Committees. They did so, in part, to insulate themselves from any suggestion of a coverup. The lawmakers called for the probe in late June, after Vice President Dick Cheney publicly chastised them for the leak.

ON June 19, CNN broadcast the text of the two messages: "Tomorrow is zero hour," and "The match begins tomorrow." Although the NSA intercepted the dispatches Sept. 10, they weren't translated until after the attacks.

CNN's broadcast closely followed a closed-door session held by the panel. CIA Director George Tenet, FBI Director Robert Mueller, and NSA chief Michael Hayden had testified about what their agencies knew and what actions they had taken. So far, the probe is focusing on members on the Senate side only. "That's where the leads are pointing," a law-enforcement official says.

All 17 senators are being asked – through a Justice Department memo – whom they met during that period, what they said, and where the encounters took place. Investigators are also requesting that senators voluntarily hand over their daily schedules, planners, calendars, appointment books – including Palm Pilots, e-mail, and computer calendar files – as well as any notes of meetings with journalists. Some are being asked to submit to a polygraph.

Not surprisingly, Senate reactions vary about the requests. Sen. Bob Graham (D) Florida, who chairs the committee, says he will fully comply – after he returns to Washington this weekend to review his files. But others are balking, noting, among other things, that the requests are targeting the Democratic-controlled Senate only.

"If asked, I would not give up my phone logs, and I would not take a lie-detector test," says Sen. Kent Conrad (D) of North Dakota, who is not under investigation.

The vice president's complaint stung members of the Intelligence Committee, because it had fought to take the lead in the investigation of possible intelligence lapses prior to 9/11. Some had argued that the job should be given to a blue-ribbon commission. But chairmen Graham and Rep. Porter Goss (R) of Florida noted that their joint committee had experience in dealing with classified documents and could be trusted to handle it quickly and discreetly.

Those intelligence committees, after all, were established in the late 1970s to curb a spike in leaks over the Vietnam War and the nation's covert operations. And the committee has shown it can police itself. In 1987 Sen. Patrick Leahy (D) of Vermont was forced to resign from the committee after it was discovered he gave a reporter access to a draft committee report on the Iran-contra affair.

But the Bush administration has been increasingly angered by leaks that they say could undermine the war on terror.

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