Infiltration of files seen as extensive

By Charlie Savage, Globe Staff
1/22/2004


Senate panel's GOP staff pried on Democrats
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.

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