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Police Secure Backup Tapes

Capitol Police secured the Senate Judiciary Committee’s computer backup tapes Monday, as three senior Democrats formally asked Sergeant-at-Arms Bill Pickle to investigate the alleged theft of more than a dozen internal memos.

Democratic Sens. Dick Durbin (Ill.), Edward Kennedy (Mass.) and Patrick Leahy (Vt.) called on Pickle to bring in an independent computer security expert to investigate the leaks of memos that discussed President Bush’s judicial nominees, amid Democratic concerns that their computers may have been hacked.

Memos from staffers to Durbin and Kennedy appeared on the editorial page of The Wall Street Journal on Friday. The Washington Times followed up with a story on Saturday. Both newspapers had obtained copies of the memos from undisclosed sources.

“[W]e ask for an independent computer forensics and security expert to help identify the perpetrators, assess the weaknesses in our network and make recommendations to help prevent any similar invasion from occurring again,” the three Senators wrote. Leahy serves as the ranking member on the Judiciary panel.

The memos, two to Durbin from one of his aides and a handful to Kennedy from one of his staffers, propose political strategy related to Bush’s judicial nominees, and outline the concerns and wishes of several liberal-leaning interest groups.

In a separate letter sent to Pickle early Monday afternoon, Durbin expressed concern about the security of Senators’ private correspondence with staffers.

“This constitutes a serious breach of security and calls into question the confidentiality of Senate internal communications in both electronic and hard copy form,” he wrote to Pickle.

The formal call for an investigation comes just weeks after conservative talk show host Sean Hannity obtained another memo written by a Democratic staffer on the Intelligence Committee. Republicans charged that the memo was proof Democrats were trying to politicize intelligence failures in advance of the 2004 presidential election.

Democrats have said they believe the intelligence memo was stolen, and Senate Minority Leader Tom Daschle (D-S.D.) said Friday that “he is very concerned about the implications of what is going on here.”

“What kind of place is this? What kind of country is this, if private materials from Senators’ offices are being stolen,” Daschle said in support of Durbin’s call for an inquiry. “I think it warrants an investigation.”

A Sergeant-at-Arms spokeswoman said the Durbin letter “is being reviewed,” and added “there hasn’t been a determination on how we will proceed.”

A police spokeswoman referred all telephone inquiries to the Judiciary Committee. A Judiciary spokeswoman could not be reached for comment. But Joe Shoemaker, Durbin’s spokesman, confirmed that police officials had indeed secured the backup tapes.

“The majority and minority together in a cooperative manner asked the Capitol Police to remove the computer backup tapes and store them in a safe location,” Shoemaker said. “The files in question on the server have been sealed off and the access records have been preserved.”

Durbin contends neither he nor his staff made these documents public and questioned how the two-year-old memos suddenly surfaced at the tail end of last week’s historic 40-hour debate over four of Bush’s nominees.

The Durbin memos date back to Nov. 6 and 7, 2001, while the Kennedy memos were written in 2002. Democrats took over control of the chamber in June 2001 and held onto it until losing the midterm elections in November 2002. The Times reported it had acquired “14 internal documents …. which did not come from a Senate staffer.”

In his letter to Pickle, Durbin wrote: “My office did not release these documents, nor did we authorize their release to anyone. Other than the original paper copies of these memos which are locked away in a file cabinet in my staff’s Judiciary Committee offices, the only other copies are stored electronically on the Judiciary Committee’s computer server in an allegedly secure file area. Therefore it appears that the documents in question were taken without authorization and possibly illegally.”

While Congress has seen its share of confounding leaks that have damaged both parties at times, Congressional experts said they could not recall a similar circumstance involving potentially purloined internal staff memos.

“There never was, and never could have been, a precedent for so astonishing an invasion and public revelation of the sacred, private counsel received by two senior senators on the committee charged with the ultra-sensitive task of passing upon appointments to the United States courts,” said Charles Tiefer, a professor of legislation at the University of Baltimore law school who has authored a book on Congressional practice and procedures.

Tiefer added, “Until Nov. 14, if the distinguished leaders of the select few — within the world’s most exclusive governing club —charged with that greatest of responsibilities had one sure sacrosanct principle among them, it was that they could consider and evaluate their delicate responsibility without fear that the others sharing that burden would act so as to make future internal candor almost impossible to obtain.”

Tiefer noted that the Capitol Police “possess the investigative resources to immediately secure the databases of those most likely to act in concert with the editorial board of the Wall Street Journal before some foolish and naive youngster presses the delete button and avoids the last hope of stopping this short of criminal obstruction.”

While Durbin has requested an inquiry by the Sergeant-at-Arms, one other avenue with some historical precedence would be to have the Senate appoint an outside counsel to conduct a probe.

In 1991, the Senate voted 86-12 to appoint a special counsel to investigate the leak of confidential FBI reports revealing Anita Hill’s harassment allegations against then-Supreme Court nominee Clarence Thomas.

The Thomas leak, which remained unsolved even after Peter Fleming’s four-month investigation, created a national uproar and led to a series of sensational Judiciary Committee hearings.

One other byproduct of that case that may be relevant today was a change in the Senate rules to specifically prohibit the disclosure of unauthorized information.

In October 1992, Senate rule 29.5 was modified to expand an existing ban on unauthorized disclosures to include “confidential business and proceedings of the committees, subcommittees and offices of the Senate.”

The rule was also changed to cover Senate employees as well as Senators and officers of the Senate. The rule currently holds that “any Senator, officer, or employee of the Senate who shall disclose the secret or confidential business or proceedings of the Senate, including the business and proceedings of the committees, subcommittees, and offices of the Senate, shall be liable, if a Senator, to suffer expulsion from the body; and if an officer or employee, to dismissal from the service of the Senate, and to punishment for contempt.”

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