January 22, 2004

Contact: Sean Rushton
(202) 481-6850

In late November, the Office of the Sergeant at Arms was charged to investigate how certain Democrat documents were obtained and how they were disclosed to the public.

Was the investigation a good idea? Yes and no.

It was certainly appropriate to be concerned with the security of Senate computers from which the Democrat documents originated. It was a mistake to give credence to the Democrat complaint that any impropriety had occurred with regard to the disclosure of these documents to the press. See below.

Were any laws or Senate rules possibly violated? No.

As to the investigators' first charge, if Senate computers were hacked into, a law might have been violated. Title 18, Section 1030 makes it unlawful to break into a government computer. Section 1030 was largely intended to punish breaches of national security or the obtaining of information for pecuniary gain. It has never been the subject of a prosecution. However, as to the investigators second charge, the so-called "leaking" or publicizing of the documents in question does not violate any Senate rule or law.

Was there a "hacking"? No, it appears not.

From information volunteered by at least two former Hatch staffers, and as reported in the Washington Post and other media, he documents in question were inadvertently disclosed and obtained off an unsecured shared network accessible to both Democrat and Republican Judiciary Committee staff. The disclosure of these and other documents was caused by the negligence of the Leahy technology staff. They inadvertently allowed access to files of both Republican and Democrat staff that had joined the Committee after the Jeffords switch. In short, there was no breaking and entering. Staffers were entitled to access their own desktop computers and the committee network on which the documents were inadvertently disclosed. The documents were disclosed through the window labeled "My Network Places."

As former White House counsel C. Boyden Gray concluded in the Wall Street Journal on December 23, 2003: "The Democrats designed a faulty "shared network" where files could be accessed freely by staffers of either party; if you had material you wanted kept completely confidential, you were advised to store it on your own hard drive. No one exceeds their authority when they log on and access files on their own computer's desktop. Democrats, in other words, were the ones who disclosed their own documents, which were in fact entirely unrestricted."

Were the Democrats aware of the glitch and did they take steps to repair it? Yes they were informed, and no they did not repair it.

It is now known that a former Hatch staffer informed the Leahy staff of the glitch and that they did not repair it.

Was there a "stealing" as Democrats have also charged? No.

There is no property right in a document on a government computer or network. Nor did anyone lose possession.

Is there a privacy right violation as Democrats have also charged? No.

There is no expectation of privacy in a document placed on a government computer system or an email sent or received through a government server. Such documents are automatically stored on tapes and archived in a federal facility. Moreover, Judiciary staff was advised to keep documents they wanted to better secure on their hard drive.

Were there ever any FBI or other classified information jeopardized as Senator Durbin asserted in the Wall Street Journal? No.

As Boyden Gray explained in the WSJ, such information is available only to those with a security clearance, kept in a locked file cabinet, and when new documents are created they are saved to a diskette and locked up as well. Senator Durbin was making his collusive papers appear classified.

Were any laws, Senate rules, or rules of ethics violated by the reading of opposition documents inadvertently disclosed? No.

No laws were violated. No Senate rules address the issue. Though of limited application to a government employee, the legal ethics rules dictated by case law in the District of Columbia indicates no absolute prohibition against the reading and use of opposition documents that are inadvertently disclosed. In fact, the inadvertent disclosure may even lose the attorney client privilege for the material disclosed. Of greater application, the Code of Ethics for Government Service (clause 1 and 9) appears to make a prohibition against the reading of documents whether or not inadvertently disclosed since such documents may be evidence of improper and unethical conduct, as in the case of the Democrat documents. The Code is incorporated into the Senate Ethics Rules.

Was Senate Rule 29.5 prohibiting disclosure of Senate confidences violated? No.

As C. Boyden Gray, the White House counsel at the time of the expansion of Rule 29.5, wrote in the Wall Street Journal: "the Senate no-leak rules, created after the Thomas nomination, are designed to prevent disclosure only of Senate "business or proceedings," such as official committee business or FBI files, not staff memos about outside special interest lobbying requests. The only way these rules apply is if the special interest groups are to be treated as important, relevant and official as the FBI -- something I doubt Sen. Durbin or any other Democrat would admit or the public tolerate."

Senate Rule 29.5 prohibits the disclosure of the "secrets" or "confidential business or proceedings of the Senate." The words: "including the business or proceedings of committees, subcommittees, and offices of the Senate" were added in 1992 after the Democrat staff's Anita Hill disclosures. The legislative history describes the confidential information protected by the rule and its purpose as such: "to protect the privacy and other interests of individuals and organizations who provide information or are the subject of inquiry." The legislative history goes on to define the words "secret" and "confidential" as referring to "all information that the Senate treats as confidential" as including "information received in closed session, informations obtained in the confidential phases of investigations, and classified national security information."

The legislative history expressly states that "offices of the Senate" means the offices of the Secretary, Sergeant at Arms, Legislative Council, Legal Council and Senate Fair Employment Practices because they handle confidential information on behalf of the Senate. The 1992 amendment, while removing ambiguity by expanding Rule 29.5 to specify "committees, subcommittees and offices of the Senate" did not include the confidences of individual Senators, or the party caucuses.

In sum, Rule 29.5 does not apply to the Democrat memos in question. First, the memos do not record the business or proceedings of the Senate or any committee, subcommittee, or office of the Senate. They record partisan meetings and business of particular Senators. Second, the memos do not record the confidential information protected by the Rule. Third, the rule assumes a relationship of confidentiality between the discloser and the material being disclosed. If the partisan Democrat memos were disclosed by a Republican staffer, no such relationship of confidentiality exists with the Senators or subject matter involved. Fourth, Rule 29.5 must be read in conjunction with and not in conflict with the obligations of the Code of Ethics for Government Service that requires disclosures. Fifth, but not least important is the fact that the Rule prohibits disclosures. The rule does not speak about leaks to the press or even disclosures to the public. The act of disclosure of the Democrat documents occurred when they were inadvertently disclosed on an unsecured shared computer system.

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