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.
The Democrat's files were, by default, copyrighted. They were also protected, albeit imperfectly. Bypassing protections on copyrighted materials is a violation of the (vile) Digital Millenium Copyright Act. Congress usually exempts themselves from their own laws, but if they didn't exempt themselves on this one .... The DMCA penalties are very onerous.