Who Was Harman Talking To?

The explosive CQ story (this post provides a good basis for doubting the story as reported) regarding an alleged telephone conversation between Rep. Jane Harman (D-CA) and a "suspected Israeli agent" turns on the identity of the "suspected Israeli agent" Harman was is alleged to have conspired with. Josh Marshall thinks it was Power Rangers mogul Haim Saban, an American citizen, staunch supporter of all things Israel, and a significant Democratic contributor. Marcy Wheeler thinks it was Naor Gilon, an Israeli citizen suspected of being a spy. Who the conversation was with is crucial under FISA:

Upon an application made pursuant to section 1804 of this title, the judge shall enter an ex parte order as requested or as modified approving the electronic surveillance if he finds that (1) the President has authorized the Attorney General to approve applications for electronic surveillance for foreign intelligence information; (2) the application has been made by a Federal officer and approved by the Attorney General; (3) on the basis of the facts submitted by the applicant there is probable cause to believe that—

(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States . . .

(Emphasis supplied.) There are two points here. First, it seems hard to believe that Saban's activities, especially those calling for clemency for the AIPAC associated persons accused of spying for Israel, were not protected by the First Amendment.

The second point is that the approval of the Attorney General was required for this surveillance. What would have been Gonzales' basis for approving surveillance of Haim Saban, if indeed he was the person being wiretapped? It seems to me difficult to believe that his hefty contributions to Democrats did not enter into Gonzales' calculus. I suppose it is possible that the initial wiretapping request of Saban commenced during the Attorney General tenure of John Ashcroft - which ended after the 2004 election. But FISA placed a 90 day duration limit on such orders at the time and eventually Gonzales himself would have to request subsequent orders from the FISA court.

One other note on this --the story provides an account where Rep. Harman agreed to lobby for clemency for the AIPAC related persons accused of revealing classified information in exchange for lobbying of soon to be Speaker Nancy Pelosi to name Harman as head of the House Intelligence Committee. Further, the report places Gonzales' intervention squelching an investigation of Harman at the eve of the publishing of the NY Times story on the Bush Administration's warrantless wiretapping, which occurred in December 2005. It seems impossible that approval of the wiretapping requests were not before Gonzales in 2005.

Noting the above, the strange thing is Gonzales is accused of intervening to stop the investigation of Harman:

Contrary to reports that the Harman investigation was dropped for “lack of evidence,” it was Alberto R. Gonzales, President Bush’s top counsel and then attorney general, who intervened to stop the Harman probe. Why? Because, according to three top former national security officials, Gonzales wanted Harman to be able to help defend the administration’s warrantless wiretapping program, which was about break in The New York Times and engulf the White House.

The argument is Gonzales only became concerned about the fallout from warrantless wiretapping on the eve of the New York Times publishing its story, even though the Times had been sitting on the story for a year (something Gonzales knew about.) This is entirely plausible - Gonzales proved himself to be not only a Bush lackey and entirely unethical, but also a complete dolt.

Of course if Marcy is right and it was Naor Gilon, this concern is rendered moot.

I think I understand the satisfaction some feel for seeing wiretapping turned on one of its staunchest defenders, Harman. And certainly Republicans will see merit in the wiretapping. Both of these impulses must be checked.

Whatever Harman's view of the gutting of FISA, abuse of the national security apparatus should be a concern to us all. I do not imagine Republicans would be thrilled to see the renewed politicization of the national security apparatus now that Obama is President, particularly with regard to domestic surveillance. Their reaction to the DHS report on right wing extremism should give them pause before cheering this thing on.

As for Democrats and civil libertarians, I would hope the underlying principles involved would check the shadenfreude.

Speaking for me only

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    "The second point . . . (5.00 / 1) (#1)
    by Capt Howdy on Mon Apr 20, 2009 at 10:33:52 AM EST
     . . .is that the approval of the Attorney General was required for this surveillance. What would have been Gonzales' basis for approving surveillance of Haim Saban, if indeed he was the person being wiretapped?"

    no kidding.  maybe it was Harman?
    that would be odd.

    from Harman (5.00 / 1) (#2)
    by Capt Howdy on Mon Apr 20, 2009 at 10:35:58 AM EST
    "These claims are an outrageous and recycled canard, and have no basis in fact," Harman said in a prepared statement. "I never engaged in any such activity. Those who are peddling these false accusations should be ashamed of themselves."

    Well (none / 0) (#4)
    by Big Tent Democrat on Mon Apr 20, 2009 at 10:39:27 AM EST
    I think that is a good question - who and why are the anonymous source? I suppose you could call them "whistleblowers" but I do think the story is lacking in that context.

    The core of the (none / 0) (#38)
    by Catch 22 on Mon Apr 20, 2009 at 11:45:58 AM EST
    story is old as evidenced in Time magazine - 2006.

    The new so called new revelation is the wiretap whose legs depend on an anonymous source. I'm a little surprised that a blog and it's posters who have on several occasions decried anonymous sources is now participating in a new angle on an old story that is based on an anonymous source.

    And of course there is a pro-Israel rag questioning this so called new revelation.

    As for Harmen, who would even be surprised that she hadn't talked to a supported AIPAC throughout here career?


    Anonymous sopurces have their place of course (none / 0) (#39)
    by Big Tent Democrat on Mon Apr 20, 2009 at 11:49:34 AM EST
    And I wonder why you felt compelled to attack this blog on this story, as I am expressing my extreme skepticism about the story.

    I didn't (none / 0) (#43)
    by Catch 22 on Mon Apr 20, 2009 at 12:02:58 PM EST
    attack the blog, I expressed surprise as you and others have railed in the past about anonymous sources.

    As for your "skepticism" on the story I don't read any skepticism in your diary. In fact you take it quite seriously as to FISA and even speculate on 1st amendment rights. That's not skepticism, that is jumping in with both feet.

    Anyway it is an old story that is or has been investigated by the FBI. Most sources I read think that if she talked to AIPAC there was nothing illegal in doing so. She can lobby for accused people just like anyone else can as long as she keeps it legal.


    Sometimes expressing surprise (5.00 / 1) (#48)
    by Spamlet on Mon Apr 20, 2009 at 12:36:36 PM EST
    is expressing surprise, and sometimes it's a passive-aggressive attack.

    Sometimes is somtimes (none / 0) (#50)
    by Catch 22 on Mon Apr 20, 2009 at 01:07:07 PM EST
    and in this case it sometimes was expressly surprise. I didn't use any adjectives or tone of attack.

    I was simply surprised that people who railed against anonymous sources in the past now embrace anonymous sources.


    What claims are "outrageous"? (none / 0) (#12)
    by inclusiveheart on Mon Apr 20, 2009 at 10:57:44 AM EST
    The ones that she was being wiretapped or the ones that she was talking to foreign agents or both?  Is she outraged that the Executive Branch was spying on the Legislative Branch or does she think that is okay?

    Which brings up another interesting point (5.00 / 1) (#21)
    by jbindc on Mon Apr 20, 2009 at 11:08:59 AM EST
    If true, maybe this is why the Dems rolled over for Bush?  They knew his DoJ had info on them based on wiretapped surveillence?

    Maybe a little tin-foilish, but I don't put anything past these people anymore.


    I dont think its tinfoil hattish at all (5.00 / 1) (#22)
    by Capt Howdy on Mon Apr 20, 2009 at 11:10:48 AM EST
    its what I have said all along.  but then I tend to be a bit tinfoil hattish.

    J Edgar showed the way to get cooperation.


    Yup, this was a point of conjecture which some (none / 0) (#47)
    by jawbone on Mon Apr 20, 2009 at 12:35:54 PM EST
    considered "foily," but I figured that if NSA was collecting just about everything BushCo would no doubt use whatever it could to retain and increase its power.

    No--can't prove it.


    Nixon was spying on "political enemies" (5.00 / 1) (#56)
    by inclusiveheart on Mon Apr 20, 2009 at 03:05:04 PM EST
    using FBI agents and he even was getting inside information about the Congressional investigations of Watergate from Fred Thompson and Gerald Ford.  I don't know why it is difficult to imagine that if the Bush Administration had the ability to listen in on anyone's conversations in the whole world that they could resist listening in on members of Congress.  

    There was an item recently in Politico about an encounter between Karl Rove and some GOP campaign manager in a restaurant in DC recently.  The campaign manager apparently went over to Rove's table to tell him off for something and Rove said something about having a file on the guy - which seemed like a "Back off or I'll tell people about you" kind of notification.  The campaign manager said he wanted to see the file.  Rove said to call him in his office.  The staff at the restaurant broke it up around that point.

    There was no real context for that conversation other than the fact that it happened and that the two showed hostility towards one another.  So how does Rove compile these files?  I mean there are means that don't involve our security forces, but if it is as easy as it is, why do it the hard way?

    Anyway, this is not unprecedented activity.  But I am not convinced that the Democrats were blackmailed into their support for the illegal spying.  I pretty much think that many of them are not all that clever (can't imagine they'd ever be a target) and think it is a good idea to spy on people.  Harman would actually be the perfect example of that if this story all turns out to be accurately reported


    that she (none / 0) (#14)
    by Big Tent Democrat on Mon Apr 20, 2009 at 11:00:35 AM EST
    was involved in a quid pro quo.

    I think that is pretty clear.


    probably shouldnt have said this then (none / 0) (#17)
    by Capt Howdy on Mon Apr 20, 2009 at 11:03:37 AM EST
    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."


    That's not a quid pro quo (none / 0) (#19)
    by Big Tent Democrat on Mon Apr 20, 2009 at 11:05:36 AM EST
    If there is a quote "I'll waddle into this if you lobby Pelosi to make me Intelligence Chair", then you have a quid pro quo.

    This is "I'll try if you think it will help" quote.


    still an unfortunate (none / 0) (#20)
    by Capt Howdy on Mon Apr 20, 2009 at 11:08:32 AM EST
    choice of words.

    excellent questions (none / 0) (#16)
    by Capt Howdy on Mon Apr 20, 2009 at 11:01:20 AM EST

    An additional question I would like to see (5.00 / 1) (#3)
    by andgarden on Mon Apr 20, 2009 at 10:37:55 AM EST
    answered is: who leaked this, and why? Moreover, when did Nancy Pelosi learn about it?

    An Israeli citizen (none / 0) (#5)
    by Big Tent Democrat on Mon Apr 20, 2009 at 10:40:59 AM EST
    could not contribute to an American politician but of course AIPAC could direct such contributions be made.

    It seems likely that Saban gave to Pelosi, but he probably has for many many years.


    havent Pelosi and Harman (none / 0) (#6)
    by Capt Howdy on Mon Apr 20, 2009 at 10:43:01 AM EST
    been at odds for years.  it would be very weird to think Pelosi did this.
    I really dont know.  I am asking.

    Yes they have (none / 0) (#8)
    by andgarden on Mon Apr 20, 2009 at 10:44:02 AM EST
    But it's hard for me to imagine Pelosi having been the leak.

    Pelosi was not the leak (none / 0) (#10)
    by Big Tent Democrat on Mon Apr 20, 2009 at 10:47:58 AM EST
    She doesn't need this right now.

    I guess (none / 0) (#7)
    by andgarden on Mon Apr 20, 2009 at 10:43:22 AM EST
    Not sure how that addresses where the leak came from, though.

    It came from (none / 0) (#9)
    by Big Tent Democrat on Mon Apr 20, 2009 at 10:47:32 AM EST
    Porter Goss don't you think?

    Taking revenge (5.00 / 2) (#13)
    by lilburro on Mon Apr 20, 2009 at 10:59:18 AM EST
    on the release of all these torture related documents?

    PLEASE give me an investigation on this sh*t.  At this point a special prosecutor seems totally necessary - who can trust the House or Senate to investigate these matters when they are so deeply entangled?


    Interesting thought (none / 0) (#11)
    by andgarden on Mon Apr 20, 2009 at 10:49:53 AM EST
    He does know Pelosi and Harman, and would have been in a position to know this sort of thing.

    Goss knew - that's on record (none / 0) (#36)
    by RonK Seattle on Mon Apr 20, 2009 at 11:45:22 AM EST
    Agree; Why now? Why from these sources? (none / 0) (#53)
    by jawbone on Mon Apr 20, 2009 at 02:15:50 PM EST
    Harmon has already been marginalized re: intel committee, so what is the agenda? Smearing Dems as unpatriotic? Working with foreign spies? Sending a clear warning to other Congress Critters that very likely there are records of their telephone conversations?

    Hhhmmm. If it were an Israeli agent, there's the possibility she was set up, with BushCo coordinating with some part of the Israeli government--and when she realized the import of what her caller said, she then cut off the conversation. But that is conjecture, as we have no idea of the full context of any of the alleged quotes from the tape.

    Does this work to marginalize AIPAC? What will it do? And who will it benefit?


    Good... (5.00 / 2) (#15)
    by kdog on Mon Apr 20, 2009 at 11:01:09 AM EST
    You reap what you sow Congress...you want a surveillance society, you got it.  Use a payphone, if you can find one, if you want privacy...just like the rest of us.

    And I'm glad its been leaked...Harman's constituents have a right to now she's trading in favors, helping accused spies in return for a high-profile appointment.  Not somebody I want in Congress.

    It's not at all clear to me (5.00 / 1) (#18)
    by Big Tent Democrat on Mon Apr 20, 2009 at 11:04:17 AM EST
    that Harman did a quid pro quo.

    the story seems shaky to me.


    To me, the strictly legal "story" .. (5.00 / 1) (#51)
    by sj on Mon Apr 20, 2009 at 01:29:02 PM EST
    ... is not what I find alarming.  There are avenues to resolve that.  You may very well be right.  There may be no quid pro quo at all.  But the appearance of impropriety can be just as damaging politically as true impropriety.  Heck, just making things up and asserting impropriety has been effective.  Think Whitewater.

    What is more significant (again, to me) than Harman's conversation and subsequent actions [on that conversation] is the spectre of the warrantless wiretapping and the possible (likely?) use to get dirt on members of Congress to ensure compliance at best, and lack of resistance at worst.  Puts a new spin on the "need 60 votes" thing as a way out of doing anything at.  It puts a new spin on "impeachment is off the table" before the session even started.  It puts a new spin the current handling of the financial crisis.  

    It puts a new spin on so many things that I don't have a safe place for my mind to go.


    one thing is clear (none / 0) (#23)
    by Capt Howdy on Mon Apr 20, 2009 at 11:12:56 AM EST
    FAUX news has its story of the week

    Further On in the CQ Story... (none / 0) (#24)
    by santarita on Mon Apr 20, 2009 at 11:15:27 AM EST
    it is reported that the attorneys in the Justice Department Public Corruption Unit  felt that that call constituted a "completed crime".

    If true, both Harman and Gonzales should be investigated.  In fact, Harman should be demanding an investigation of this in order to clear her name.  Why is this stuff coming up now (again as Harman indicates)?  

    Obama, if he is serious about changing Washington, should be aggressive on this, regardless of where the chips may fall.


    No (none / 0) (#25)
    by Big Tent Democrat on Mon Apr 20, 2009 at 11:17:28 AM EST
    That statement is attributed to intelligence officials.

    Nothing in the story substantiates a quid pro quo - to wit, Harman did not say I will do this if you do that.


    My mistake (none / 0) (#26)
    by Big Tent Democrat on Mon Apr 20, 2009 at 11:21:01 AM EST
    the statements are attributed to Justice officials:

    "Justice Department attorneys in the intelligence and public corruption units who read the transcripts decided that Harman had committed a "completed crime," a legal term meaning that there was evidence that she had attempted to complete it, three former officials said. And they were prepared to open a case on her, which would include electronic surveillance approved by the so-called FISA Court, the secret panel established by the 1979 Foreign Intelligence Surveillance Act to hear government wiretap requests."

    There is a lot missing to substantiate that conclusion however.


    if she was in fact (none / 0) (#27)
    by Capt Howdy on Mon Apr 20, 2009 at 11:22:54 AM EST
    talking to a suspected spy, would that change your mind?

    On the legality of the wiretap? (none / 0) (#29)
    by Big Tent Democrat on Mon Apr 20, 2009 at 11:24:15 AM EST

    Not on the quid pro quo.

    I just do not think Harman did anything she would not have done otherwise.


    And then there is this (none / 0) (#28)
    by Big Tent Democrat on Mon Apr 20, 2009 at 11:23:27 AM EST
    ""It's a story about the corruption of government -- not legal corruption necessarily, but ethical corruption."

    FWIW, I doubt Harman did anything she would not have done if the phone call had not taken place.

    I see no quid pro quo personally.


    I hear ya... (none / 0) (#31)
    by kdog on Mon Apr 20, 2009 at 11:33:40 AM EST
    its shady accusing shady...not much credibility to be had by either party.

    If the accusations are true though, I think the quid pro quo is there between the lines.  Not enough to convict for aiding espionage or anything, but it should be enough to get her out of congress, or at least an ethical scolding.


    Harman did not do anything (none / 0) (#33)
    by Big Tent Democrat on Mon Apr 20, 2009 at 11:40:20 AM EST
    she would not have done anyway. No quid pro quo imo.

    You would have a better idea... (none / 0) (#40)
    by kdog on Mon Apr 20, 2009 at 11:52:22 AM EST
    of a day in the legislative life of Harman than I would...I'd hate to think putting a call in on behalf of acused foreign spies is s.o.p. for a house rep, but this is Israel and AIPAC we're talking about.

    Unfortunately (none / 0) (#41)
    by Big Tent Democrat on Mon Apr 20, 2009 at 11:53:26 AM EST
    It is.

    definitions (none / 0) (#44)
    by txpublicdefender on Mon Apr 20, 2009 at 12:03:25 PM EST
    Your definition of quid pro quo is different than mine, and the law's, I think.  Just because you "would have done it anyway," doesn't mean that you can't be convicted.  The issue is what the person "paying" thought they were getting.  "I would have done it for free!," is not a defense.

    If I'm on a jury and I plan on voting not guilty due to a lack of evidence, I am still guilty of soliticiting a bribe and/or conspiracy if I ask the defendant for money in return for which I promise to find him not guilty.  It matters not what I would have done without the bribe money.  

    I think there was certainly enough in the conversation, if it is being correctly reported, to open an investigation.


    That seems wrong (none / 0) (#45)
    by Big Tent Democrat on Mon Apr 20, 2009 at 12:17:19 PM EST
    You argue that the state of mind of the payor, so to speak, is determinative of the criminal case against the payee.

    I am no criminal lawyer, but I do remember the phrase mens rea.  


    interesting that the right wings sites (5.00 / 1) (#30)
    by Capt Howdy on Mon Apr 20, 2009 at 11:29:52 AM EST
    are not screaming about this.  I guess that could mean theres more we dont know and possibly more they dont know.

    Au contraire (none / 0) (#35)
    by Pianobuff on Mon Apr 20, 2009 at 11:41:39 AM EST
    Just read about it on three sites.

    Here's a money quote from Ace of Spades:

    "Read the whole thing. If true, it's an ugly and messy story. If true, it's also more proof, if any were needed, that Gonzalez was one of the most incompetent men to hold the office of Attorney General in history. "


    I always think until it lands on Drudge or FOX (none / 0) (#37)
    by Capt Howdy on Mon Apr 20, 2009 at 11:45:50 AM EST
    its "just bloggers"

    'suspected agent' is ambiguous, beyond ... (5.00 / 1) (#34)
    by RonK Seattle on Mon Apr 20, 2009 at 11:41:00 AM EST
    ... the inherent fuzziness of the word "agent".

    The phrase can be read as "known agent, suspected of [something]", or as "person suspected of being an agent".

    In the first interpretation, the accuser know he's an agent -- but it's not clear what he's suspected of.

    In the second interpretation, the accuser doesn't know whether he's an agent.

    In any case, this seems to be a separate instance from the "NSA sought clearance to wiretap Congressman" story.

    As Marcy says (5.00 / 2) (#42)
    by lilburro on Mon Apr 20, 2009 at 12:00:11 PM EST
    What is absolutely astounding, however, is that someone well-versed in intelligence like Harman got on the phone with someone reported to be under investigation at least a year earlier, agreed to a quid pro quo, and then said (so the NSA could hear her), "This conversation doesn't exist."

    I mean, is Harman really that stupid?  What sway might an Israeli citizen have with Pelosi?

    It also seems like Gonzales wouldn't have protected Harman for warrantless wiretapping if she wasn't being inappropriately wiretapped.  Otherwise if the case against Harman was above board and pretty solid, why not go forward with it?  Why lose out on the chance to slam a Democrat on national security?  And God knows they could've found another Democrat (think: Rockefeller) to defend the program.

    I'll Bet On Gilon (4.75 / 4) (#32)
    by squeaky on Mon Apr 20, 2009 at 11:37:08 AM EST
    He is moving up.
    [Avigdor] Lieberman, the foreign minister in the new Benjamin Netanyahu government, has asked Naor Gilon to take the top career slot at the Israeli Foreign Ministry, JTA has learned, effectively making Gilon his right hand man.

    Laura Rozen

    What always struck me as the main reason for the illegal wiretap program was not just to spy on you or me but to collect potentially damaging conversations from people that BushCo needed to, um... influence. That would be congresscritters on both sides of the aisle.

    I wonder how many more congresscritters have phone records on file.

    All? (5.00 / 1) (#49)
    by jawbone on Mon Apr 20, 2009 at 12:49:05 PM EST
    I mean, why not? If they can do it, why waste a possible future trump card?

    Aren't there limits (none / 0) (#46)
    by Steve M on Mon Apr 20, 2009 at 12:34:52 PM EST
    on the ability of a legislator to "lobby" the DOJ regarding a pending matter?  Sure they can request information, but leaning on the prosecutors to pursue a case or not to pursue one smacks of obstruction of justice to me.  Recall the Pete Domenici scandal.

    I wonder if Harman could have been concerned, not that she possibly crossed the line with respect to a quid pro quo, but simply that it could be improper for her to lobby Justice at all?

    I doubt Harman is really worried about (none / 0) (#52)
    by oculus on Mon Apr 20, 2009 at 01:47:41 PM EST
    any of this.  Would I want her representing me, though?  No.

    Power Rangers murderer (none / 0) (#54)
    by KoolJeffrey on Mon Apr 20, 2009 at 02:25:27 PM EST
    First this:

    Former 'Power Rangers' Actor Sentenced to Death in Yacht Killings:


    And now all this. What exactly are these wacky Israelis up to?

    JTA analysis (none / 0) (#55)
    by gyrfalcon on Mon Apr 20, 2009 at 02:50:28 PM EST
    of this is terrific.  Everybody inclined to take the CQ story at face value should definitely read it.  He's got a long list of stuff that's internally contradictory or simply wildly unlikely.  Good stuff.

    Greenwald seems to read the CQ report as very well (none / 0) (#57)
    by jawbone on Mon Apr 20, 2009 at 06:03:01 PM EST
    sourced, seems to see it very bad for Harmon.

    Let there be investigations!