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.
MORE below . . .
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 staffer 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 that she stated on NPR:
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 Ron 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.
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, "Gonzales Said to have Intervened on Wiretap"
That report states, in relevant part:
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 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 for 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 Harman 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/...
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/...
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 whom a federal Judge has already, more than once, found probable cause to treat as a criminal espionage agent in granting a FISA warrant. Also, see related, "Harman-AIPAC: Second Mossad Agent Emerges", http://www.dailykos.com/...
MORE on this, again, later.