Major battle brewing over leaks in Senate

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."

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