Dirty Tricks in the Judiciary Committee

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Infiltration of files seen as extensive
Senate panel's GOP staff pried on Democrats
By Charlie Savage, Globe Staff, 1/22/2004

WASHINGTON -- Republican staff members of the US Senate Judiciary Commitee infiltrated opposition computer files for a year, monitoring secret strategy memos and periodically passing on copies to the media, Senate officials told The Globe.

From the spring of 2002 until at least April 2003, members of the GOP committee staff exploited a computer glitch that allowed them to access restricted Democratic communications without a password. Trolling through hundreds of memos, they were able to read talking points and accounts of private meetings discussing which judicial nominees Democrats would fight -- and with what tactics.

The office of Senate Sergeant-at-Arms William Pickle has already launched an investigation into how excerpts from 15 Democratic memos showed up in the pages of the conservative-leaning newspapers and were posted to a website last November.

With the help of forensic computer experts from General Dynamics and the US Secret Service, his office has interviewed about 120 people to date and seized more than half a dozen computers -- including four Judiciary servers, one server from the office of Senate majority leader Bill Frist of Tennessee, and several desktop hard drives.

But the scope of both the intrusions and the likely disclosures is now known to have been far more extensive than the November incident, staffers and others familiar with the investigation say.

The revelation comes as the battle of judicial nominees is reaching a new level of intensity. Last week, President Bush used his recess power to appoint Judge Charles Pickering to the Fifth Circuit Court of Appeals, bypassing a Democratic filibuster that blocked a vote on his nomination for a year because of concerns over his civil rights record.

Democrats now claim their private memos formed the basis for a February 2003 column by conservative pundit Robert Novak that revealed plans pushed by Senator Edward M. Kennedy, Democrat of Massachusetts, to filibuster certain judicial nominees. Novak is also at the center of an investigation into who leaked the identity of a CIA agent whose husband contradicted a Bush administration claim about Iraqi nuclear programs.

Citing "internal Senate sources," Novak's column described closed-door Democratic meetings about how to handle nominees.

Its details and direct quotes from Democrats -- characterizing former nominee Miguel Estrada as a "stealth right-wing zealot" and describing the GOP agenda as an "assembly line" for right-wing nominees -- are contained in talking points and meeting accounts from the Democratic files now known to have been compromised.

Novak declined to confirm or deny whether his column was based on these files.

"They're welcome to think anything they want," he said. "As has been demonstrated, I don't reveal my sources."

As the extent to which Democratic communications were monitored came into sharper focus, Republicans yesterday offered a new defense. They said that in the summer of 2002, their computer technician informed his Democratic counterpart of the glitch, but Democrats did nothing to fix the problem.

Other staffers, however, denied that the Democrats were told anything about it before November 2003.

The emerging scope of the GOP surveillance of confidential Democratic files represents a major escalation in partisan warfare over judicial appointments. The bitter fight traces back to 1987, when Democrats torpedoed Robert Bork's nomination to the Supreme Court. In the 1990s, Republicans blocked many of President Clinton's nominees. Since President Bush took office, those roles have been reversed.

Against that backdrop, both sides have something to gain and lose from the investigation into the computer files. For Democrats, the scandal highlights GOP dirty tricks that could result in ethics complaints to the Senate and the Washington Bar -- or even criminal charges under computer intrusion laws.

"They had an obligation to tell each of the people whose files they were intruding upon -- assuming it was an accident -- that that was going on so those people could protect themselves," said one Senate staffer. "To keep on getting these files is just beyond the pale."

But for Republicans, the scandal also keeps attention on the memo contents, which demonstrate the influence of liberal interest groups in choosing which nominees Democratic senators would filibuster. Other revelations from the memos include Democrats' race-based characterization of Estrada as "especially dangerous, because . . . he is Latino," which they feared would make him difficult to block from a later promotion to the Supreme Court.

And, at the request of the NAACP, the Democrats delayed any hearings for the Sixth Circuit Court of Appeals until after it heard a landmark affirmative action case -- though a memo noted that staffers "are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case."

After the contents of those memos were made public in The Wall Street Journal editorial pages and The Washington Times, Judiciary Chairman Orrin Hatch, Republican of Utah, made a preliminary inquiry and described himself as "mortified that this improper, unethical and simply unacceptable breach of confidential files may have occurred on my watch."

Hatch also confirmed that "at least one current member of the Judiciary Committee staff had improperly accessed at least some of the documents referenced in media reports." He did not name the staffer, who he said was being placed on leave and who sources said has since resigned, although he had apparently already announced plans to return to school later this year.

Officials familiar with the investigation identified that person as a legislative staff assistant whose name was removed from a list of Judiciary Committee staff in the most recent update of a Capitol Hill directory. The staff member's home number has been disconnected and he could not be reached for comment.

Hatch also said that a "former member of the Judiciary staff may have been involved." Many news reports have subsequently identified that person as Manuel Miranda, who formerly worked in the Judiciary Committee office and now is the chief judicial nominee adviser in the Senate majority leader's office. His computer hard drive name was stamped on an e-mail from the National Abortion and Reproductive Rights Action League that was posted along with the Democratic Senate staff communications.

Reached at home, Miranda said he is on paternity leave; Frist's office said he is on leave "pending the results of the investigation" -- he denied that any of the handwritten comments on the memos were by his hand and said he did not distribute the memos to the media. He also argued that the only wrongdoing was on the part of the Democrats -- both for the content of their memos, and for their negligence in placing them where they could be seen.

"There appears to have been no hacking, no stealing, and no violation of any Senate rule," Miranda said. "Stealing assumes a property right and there is no property right to a government document. . . . These documents are not covered under the Senate disclosure rule because they are not official business and, to the extent they were disclosed, they were disclosed inadvertently by negligent [Democratic] staff."

Whether the memos are ultimately deemed to be official business will be a central issue in any criminal case that could result. Unauthorized access of such material could be punishable by up to a year in prison -- or, at the least, sanction under a Senate non-disclosure rule.

The computer glitch dates to 2001, when Democrats took control of the Senate after the defection from the GOP of Senator Jim Jeffords, Independent of Vermont.

A technician hired by the new judiciary chairman, Patrick Leahy, Democrat of Vermont, apparently made a mistake that allowed anyone to access newly created accounts on a Judiciary Committee server shared by both parties -- even though the accounts were supposed to restrict access only to those with the right password.

 

I love this defense from the "take personal responsibility" crowd...

As the extent to which Democratic communications were monitored came into sharper focus, Republicans yesterday offered a new defense. They said that in the summer of 2002, their computer technician informed his Democratic counterpart of the glitch, but Democrats did nothing to fix the problem.

Other staffers, however, denied that the Democrats were told anything about it before November 2003.

So, using this logic, it's OK to steal cars that have the keys left in them. Pathetic.

 

Doggett was such a stiff shirt goodie two-shoes, his nickname was "The Good Lloyd."

 

Read the TX redistricting article I posted earlier today.

 

Update... The forces of Personal Responsibility are on the march. Actually, my guess is this goes beyond mere staffers... hence a bug gun like Gray stepping into the fray.
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GOP downplays reading of memos
'Fact sheet' asserts no rules, laws broken
By Charlie Savage, Globe Staff, 1/23/2004

WASHINGTON -- Although Senate Sergeant-at-Arms William Pickle's investigation into GOP surveillance of Democratic Judiciary Committee communications from 2002 to 2003 is not yet complete, Republicans are preemptively trying to head off any criminal charges or even ethics complaints in the Senate or the D.C. Bar.

The Committee for Justice, headed by C. Boyden Gray, a former senior White House counsel during the first Bush administration, this week began circulating a "fact sheet" arguing that no rules or laws were broken by Republican staffers who exploited a computer glitch on a shared server that allowed them to access memos written by their Democratic counterparts without having to enter a password.

However, Democrats, including Beryl Howell, a former general counsel for the Judiciary Committee who left the Hill a year ago and now runs the D.C. office of the cybersecurity consulting firm Stroz Friedberg, were quick to dispute each of the major points advanced by the Committee for Justice.

The opening salvos in the argument over the law and ethics are revealing because they frame whether Republican staffers, whom the Pickle investigation is likely to identify as knowing about and exploiting the glitch, will be vulnerable to punishment that could include firing, disbarment, or even a year in prison.

The argument advanced by the Committee for Justice is that the behavior did not violate the Computer Fraud and Abuse Act of 1984, which makes it a criminal act to exceed one's authorization to access a government computer. It said staffers "were entitled to access their own desktop computers and committee network on which the documents were inadvertently disclosed" by the mistake of a Democratic technician.

Said Howell: "Just because you can do it doesn't mean it's right, doesn't mean it's ethical, and doesn't mean it's legal."

The group also emphasizes a new assertion that a Democratic technician was told about the problem in mid-2002 but failed to repair it. Democrats say they were never informed. Under certain legal ethics guidelines, a lawyer who inadvertently receives confidential materials must inform the other side.

The Committee for Justice also argues that there is no expectation of privacy for materials stored on a government server because "such documents are automatically stored on tapes and archived in a federal facility" and "staff was advised to keep documents they wanted to better secure on their hard drive."

Democrats said, however, that the culture of Capitol Hill is such that staffers' work product for their senators is private.

However, cautioning that she needed to do more research, Howell said the Committee for Justice might be correct that the memos do not count as "confidential" materials for the purposes of a Senate nondisclosure rule.

Asked to respond to the "fact sheet," a number of Democratic Senate staffers referred to a statement last November by Judiciary chairman Orrin Hatch, Republican of Utah, after he conducted his own preliminary probe. He said he was "mortified that this improper, unethical, and simply unacceptable breach of confidential files may have occurred on my watch."

The memos make it clear that outside liberal interest groups do much of the research on judicial nominees for Democrats and influence their decisions about which ones to try to block. That outside influence, Republicans have said, is unethical. In one, a staffer wrote that former nominee Miguel Estrada should be targeted in part because of his race, which might make him difficult to block from a later promotion to the Supreme Court.

Democrats said some memos were unsent drafts and that the GOP has exaggerated their meaning. For example, in one, a staffer says the NAACP requested that none of President Bush's nominees to fill vacancies on the Sixth Circuit Court of Appeals get a hearing until after that court finished with a landmark affirmative action case. However, then-Judiciary chairman Patrick Leahy, Democrat of Vermont, scheduled a prompt hearing for a Bush nominee to that circuit anyway.

One Senate staffer said that the memos had offered little concrete help to those who were secretly reading them.

"Basically, for most people, they were historical -- about events that already happened," the staffer said, speaking on condition of anonymity.