NYT: Harman-AIPAC Target was “Israeli Official”

[leveymg]

There’s an awful lot of smoke and mirrors about the identity of the person targeted by the Harman-AIPAC wiretap, what that person was doing, and which agency ordered the wiretap.

The answers to all these questions were published last Thursday.

According to the New York Times, the target was an "Israeli official". . . "deemed an agent of a foreign power." Harman had not one but a series of conversations with that person that were picked up as part of a renewal application for an ongoing FISA warrant. That renewal was submitted by then Director of the CIA, Porter Goss.

That tells us enough to make a stab at who that person is and what they were doing.

***

Okay. Provided the NYT got that much right, the identity and motives of the "suspected Israeli intelligence agent" (Jeff Stein’s consistent term) come into focus.

There’s been some confused reporting on the subject of the wiretap that picked up Harman's compromising promise to "waddle into" the Justice Dept. prosecution of two AIPAC staffers involved with the Franklin espionage case. Most confusing has been the use of a variety of terms of varying precision in the U.S. press to describe that target. In the NYT and Washington Post these have ranged from the fairly specific, “someone whom the FBI was wiretapping under a law permitting domestic surveillance of suspected foreign intelligence agents”, to “a supporter of Israel”; to “someone seeking help for AIPAC employees”, which could mean practically anyone.

The lack of precision has been compounded by the smoke of Harman’s own depiction of events, such as her quoted defense stated on NPR: http://www.npr.org/templates/story/story.php?storyId=103330280

the person I was talking to was an American citizen. I know something about the law and wiretaps. There are two ways you do it. One is you get a FISA warrant, which has to start with a foreign suspected terrorist, a non-American foreigner. If this was FISA, Foreign Intelligence Surveillance Act, that would have had to happen.

Further mirror-effect was created by Ben Kampeas at the Jewish Telegraph Agency whose early speculation that Harman’s “interlocatur” was Haim Saban, a wealthy friend of Israel, a dual-citizen, and past benefactor to many Democratic candidates. Kampeas, who had relied on some flawed and incomplete 2006 Isikoff reporting on Harman, however, backed away from the assertion in an Update to his original JTA Blog entry of April 20. http://blogs.jta.org/politics/article/2009/04/20/1004472/why-the-harman-leaks-smell-to-high-heaven

That leaves us without a named suspect. The most specific reporting on this issue to date came from Mark Mazzetti and Neil A Lewis, assisted by Eric Lichtblau, in the New York Times on April 23. That report states, in relevant part: http://www.nytimes.com/2009/04/24/us/politics/24harman.html "Gonzales Said to Have Intervened on Wiretap"

Former officials said that Mr. Goss had first seen the transcripts of Ms. Harman’s phone conversations in late 2005, when the government was renewing its requests to a special court to wiretap the calls of the Israeli operative, whom they would not identify. Ms. Harman was not the target of the eavesdropping but her conversations were picked up because she spoke with the Israeli agent.

SNIP

Mr. Gonzales’s call to the C.I.A. rankled some intelligence officials, who believed that the White House was not taking seriously enough the matter of Ms. Harman’s discussions with the Israeli official.

“The view inside the intelligence community was that she was the ranking member of the House Intelligence Committee, she was too close to an individual who had been deemed an agent of a foreign power, and the matter needed to be investigated,”, said one former Bush administration official.

Perhaps most telling here is the term, "deemed an agent of a foreign power", which has a specific legal meaning under the FISA statute.

A "United States person" may not be determined to be an agent of a foreign power "solely upon the basis of activities protected by the first amendment to the Constitution of the United States." 50 U.S.C. § 1805(a)(3)(A).

Clearly, the series of conversations Harman was having with the person “deemed an agent of a foreign power” weren’t casual and innocent. In addition, that foreign agent, if (s)he was a US citizen or lawful permanent resident, was herself engaged in activities that were not protected by the constitution.

In a word, the person Harman was talking with – if a US person -- was a suspected criminal under long-term US intelligence surveillance. And, while she was unable to finish her thought on NPR, FISA warrants most certainly can be sought for US persons, and plenty of us have had our international calls legally intercepted, even without warrants under amendment to the FISA Act Rep. Harman supported. But, I digress.

The other possibility, as I have suggested, is that Harman's interlocatur was a non-US person working as an officer or employee of a foreign government. In other words, a known foreign spy. It is not uncommon for foreign intelligence officers to be left unmolested in this country for many years, so that US intelligence can watch who they have contact with. It is far less common that the feds allow US persons to continue a life of criminal espionage for long periods of time - that truly would be extraordinary treatment for anyone outside a small group of US officials who have turned to espionage on behalf of a foreign power.

Therefore, it is probably safest to conclude that the person being tapped was, indeed, an Israeli intelligence officer, a well-known one, with whom Jane was very familiar. This is illustrated in the law that governs the granting of FISA warrants. In order to obtain a FISA warrant, the government has to show a Judge on the Foreign Intelligence Surveillance Court the following about the person Harman talked to: http://digital.library.unt.edu/govdocs/crs//data/2004/upl-meta-crs-5988/meta-crs-5988.ocr

An applicant for a court order under FISA authorizing electronic surveillance or a physical search must include in the application, among other information, a statement of the facts or circumstances relied upon by the applicant to justify his or her belief that the target of the electronic surveillance or the physical search is a "foreign power" or an "agent of a foreign power" as those terms are defined in Section 101 of the act, 50 U.S.C. 1801. Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-458, amended the definition of "agent of a foreign power" under Section 101(b)(1) of FISA, 50 U.S.C. 1801(b)(1), to add a new category of non-United States persons covered under this definition. The amendment added a new subparagraph 101(b)(1)(C), 50 U.S.C. 1801(b)(1)(C) (as reflected in italics below). As amended by Section 6001, "agent of a foreign power" under FISA means:
(1) any person other than a United States person, who (A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section;

In conclusion to this installment, I think a reading of the statute may answer the question raised by Josh Marshall, who on the 20th jumped on the Saban bandwagon, and asked: http://www.talkingpointsmemo.com/archives/2009/04/another_key_question.php

To be clear, I'm not speaking to the wisdom, ethics or morality of such a deal. But if the person on the other end of the call is a US Citizen and the government can't sustain the charge that they were acting as the agent of a foreign power, it's really hard for me to see what criminal statutes that agreement would violate.

The answer to that, I believe, is that either Harman made her deal with a foreign intelligence officer (who I have previously speculated was former Mossad Chief of Station Naor Gilon), or else, the deal-maker was a U.S. person who a federal Judge has already, more than once, found probable cause to treat as a criminal espionage agent in granting a FISA warrant. See, "Larger Scandal Behind-Harman AIPAC: Israeli Spying in the U.S" http://www.dailykos.com/story/2009/4/21/722655/-The-Larger-Scandal-Behind-Harman-AIPACIsraeli-Spying-in-the-U.S. Also, see related, "Harman-AIPAC: Second Mossad Agent Emerges", http://www.dailykos.com/story/2009/4/26/724648/-Harman-AIPAC:-Second-Mossad-Agent-Emerges

MORE on this, again, later.
_______________________________
Also available in orange at: http://www.dailykos.com/story/2009/4/29/725801/-NYT:-Harman-AIPAC-Target-was-Israeli-Official

[FLAprogressive]

1. Why is she not in jail for treason?

[TorchTheWitch]

6. ask Gonzo

He's the one that stopped the investigation of Harman.

[Howardx]

2. thanks for crossposting this

read it at dkos this morning.

[bobthedrummer]

3. Thanks again, Mark. K&R

:fistbump:

[laststeamtrain]

4. K & R -- I appreciate the work you're doing on this. n/t.

[mod mom]

5. Thank you, Mark for your vigilance. On a lighter note, JS explains the sage this way:

http://tpmmuckraker.talkingpointsmemo.com/2009/04/daily_show_on_harman-aipac.php

I always enjoy your informative posts! :hi:

[leveymg]

7. Thanks. I liked the last comment about the Stewart wrap-up

Made a lot of difference that the universal warrantless wiretapping story wasn't published by the NYT before the election. Bush-Cheney got reelected in very close race, which might well have turned out differently if the NYT management hadn't been persuaded by Harman and others to withhold publication of the story.

As I may have said before, there must be a Genie that dishes such rough karma.

[mod mom]

10. As an Ohio Election Integrity activist who went into BOE to help w the investigation

after the '04 election, I have to take issue with your comment that B/C was "reelected in very close race". They did NOT win, but instead used a multitude of techniques to ensure they came out ahead by 118,000 votes. On election night, when it was shown there were 250,000 outstanding votes not counted (and remember provisional votes overwhelmingly favor the Dems, calls were made to ensure those votes would not be counted:





Did Carville Tip Bush Off to Kerry Strategy (Woodward)

By M.J. Rosenberg - October 7, 2006, 9:11AM

I just came across a troubling incident that Bob Woodward reports in his new book. Very troubling.

On page 344, Woodward describes the doings at the White House in the early morning hours of Wednesday, the day after the '04 election.

Apparently, Kerry had decided not to concede. There were 250,000 outstanding ballots in Ohio.

So Kerry decides to fight. In fact, he considers going to Ohio to camp out with his voters until there is a recount. This is the last thing the White House needs, especially after Florida 2000.

So what happened?

James Carville gets on the phone with his wife, Mary Matalin, who is at the White House with Bush.

"Carville told her he had some inside news. The Kerry campaign was going to challenge the provisional ballots in Ohio -- perhaps up to 250,000 of them. 'I don't agree with it, Carville said. I'm just telling you that's what they're talking about.'

"Matalin went to Cheney to report...You better tell the President Cheney told her."

Matalin does, advising Bush that "somebody in authority needed to get in touch with J. Kenneth Blackwell, the Republican Secretary of State in Ohio who would be in charge of any challenge to the provisional votes." An SOS goes out to Blackwell.

http://www.tpmcafe.com/blog/coffeehouse/2006/oct/07/did_carville_tip_bush_off_to_kerry_strategy_woodward

:hi:

[NoodleyAppendage]

8. Why do you hate the Israelis? Don't you know that they have America's best interests at heart? n/t

J

[leveymg]

9. Sarcasm icon. Shrug icon. Wink icon.

:sarcasm: :shrug: ;-)

[Spazito]

11. Excellent OP!

Very thorough.

[aquart]

12. A US citizen who is a foreign intelligence officer?

Oh, wait. You believe she was lying about that. Because the Bush administration never lied, or bent the facts to suit what they wanted to do.

Well, I think Daily Kos is just the right place to suit the prejudice here.

[leveymg]

14. The operative term for surveillance under a FISA warrant is "agent of a foreign power"

The bottom-line on the Harman-AIPAC case is that the target was either an Israeli official (probably Naor Gilon) or a US person whom a Judge had already found to be an "agent of a foreign power", ie., involved in espionage and has committed (or is preparing to commit) a predicate criminal act.

Not sure which is worse for Harman.

Anyway, since you asked, here are the rules:

Further clarification of the FISA law as it has applied since passage of the 2001 USA-Patriot Act. See, http://w2.eff.org/Censorship/Terrorism_militias/fisa_faq.html

"What is an "agent of a foreign power"?

FISA §1801(b) defines this phrase in two ways, depending on whether the target is a U.S. person. §1801(b)(1) covers non-U.S. persons, while § 1801(b)(2) covers "any person."

Non-U.S. persons are "agents" under FISA if they act in the United States as an officer or employee of a foreign power, or as a member of a terrorist organization, § 1801(b)(1)(A) act for or on behalf of a foreign power that engages in clandestine intelligence activities in the United States contrary to U.S. interests when (1) the circumstances of such persons' presence in the United States "indicate that such person may engage in such activities, or (2) when such person knowingly aids or abets any person, or conspires with any person to engage in such activities." 50 U.S.C. § 1801(b)(1)(B).
So, for instance, a British national who works for the British embassy in the United States is an agent of a foreign power.

American citizens and permanent residents are "agents" if they knowingly engage in espionage for a foreign power or intelligence service, and such activities "are about to involve" a violation of U.S. laws--any criminal laws, not just espionage. §1801(b)(2)(B).

So FISA doesn't treat aliens and U.S. citizens equally?

If the target is a "U.S. person," which includes permanent resident aliens and associations and corporations substantially composed of U.S. citizens or permanent resident aliens, 50 U.S.C.A. § 1801(i), there must be probable cause to believe that the U.S. person's activities "may" or "are about to" involve a violation of the criminal statutes of the United States. § 1801(b)(2)(A),(B); see also § 1801(b)(2)(C) (knowingly engages in activities in preparation for sabotage or "international terrorism" on behalf of a foreign power);

[Howardx]

13. kick

[bobthedrummer]

15. kick