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May 13, 2005
Tail-Gunner Harry

Just when we thought the smears on judicial nominees from the Democrats could not get any worse, Harry Reid moved from mere bullying to full-blown McCarthyism last night during the Senate debate. In an impromptu remark made during a prepared speech on the floor, he flatly stated that Henry Saad represented a security risk to the United States according to Saad's confidential FBI files:

Minority Leader Harry Reid strayed from his prepared remarks on the Senate floor yesterday and promised to continue opposing one of President Bush's judicial nominees based on "a problem" he said is in the nominee's "confidential report from the FBI."

Those highly confidential reports are filed on all judicial nominees, and severe sanctions apply to anyone who discloses their contents. Less clear is whether a senator could face sanctions for characterizing the content of such files.

"Henry Saad would have been filibustered anyway," Mr. Reid said on the floor yesterday, about the Michigan Appeals Court judge who is nominated to the U.S. Court of Appeals for the 6th Circuit.

"All you need to do is have a member go upstairs and look at his confidential report from the FBI, and I think we would all agree that there is a problem there," Mr. Reid continued.

This remark created a firestorm of outrage on the GOP side of aisle, and for good reason. None of the Senators have access to the file except those on the Senate Judiciary Committee or Saad's homestate senators (both Democrats) -- which excludes Harry Reid! Reid should never have been given access to that information, and if he has accessed the file, he would be guilty of a breach of Senate rules. Furthermore, by publicly characterizing the data in Saad's file, he has breached its confidentiality.

Worse than that, he has now floated a non-specific charge of malfeasance against Henry Saad against which Saad cannot defend. Saad himself cannot review his file, which contains anything anyone ever said about him to the FBI during his background check, regardless of whether it was true or not. Even those few Republicans who have defended judicial nominees against Reid's normal smears of "extremism" cannot offer defenses based on the FBI file, because to do so would be to break the same security clearance regulations Reid did in making this statement.

FBI clearance files contain raw data from every interview the agency conducts with people known to the person applying for the clearance. Anything said goes into the file. The FBI does not filter the information, and will usually investigate criminal activity suggested by the interview only if they find anything substantial. What this means, especially in political appointments, is that a fair amount of gossipy but usually exaggerated or false information gets entered into the file and later mentioned in the file's summary.

If the FBI finds anything worth investigating, they do so, and the investigation itself then becomes known to the target and -- unless national security is involved -- is declassified. If the FBI doesn't find a substantiated issue, it drops it when the clearance investigation is complete. Unless the FBI has an ongoing investigation on Saad that they haven't disclosed -- and note that Reid didn't mention one, even though Saad's clearance check was done two years ago -- it means that the FBI was satisfied with the results of the clearance check.

Reid just conducted nothing short of a Joe McCarthy-style character assassination, a tradition that Senate Democrats had come close to recreating on judicial nominations over the past few months anyway. Talking vaguely about information in secret files showing that Saad has some unnamed unfitness for office differs in no way from waving around a sheet of paper and claiming to possess a list of Communist sympathizers in the Army. He has now publicly smeared Saad in a manner that absolutely allows no public defense. No matter what happens, people will always wonder if Saad is hiding something, especially with an Arabic-sounding surname.

Reid may or may not have broken the law by his statement; my guess is he didn't, because I believe him to have lied in his characterization. I believe Harry Reid cowardly chose a way in which to smear Henry Saad that would not allow anyone to defend him. Reid should not just be censured by the Senate as a whole, but stripped of his leadership post and his committee assignments. Let him serve the rest of his term as a member at large, gathering dust on the back benches of the Senate, where he can live with his cowardice and his despicable acts.

ADDENDUM: The entire point of the FBI investigation is to determine whether a nominee can receive a security clearance in order to access the files a federal appellate-court justice might need to see. If he couldn't get that clearance, he wouldn't be up for confirmation, which should end speculation on the contents of Saad's file. Obviously the FBI has given the green light to Saad.

UPDATE: Bumping this to the top for the morning. Also, Jeralyn at TalkLeft argues that an inadvertent release of this information makes it public domain. She's incorrect. The status of the FBI file, or any other classified documents, can only be changed by the agency which issues the classification. Henry Saad can't change the status on the files, and in fact, Henry Saad can't even access the file himself, because the sources for the information are named in the file. Jeralyn either knows nothing about classifications or engages in sophistry on this point, and I think it's the former rather than the latter.

Inadvertent release does not mean anything legally or ethically, otherwise no one would ever be disciplined for security breaches, as a moment's thought and common sense would indicate.

UPDATE II: Byron York notes this in his column for NRO:

Saad, along with three other Bush picks for the Sixth Circuit, has been blocked by Michigan Senators Carl Levin and Debbie Stabenow, not because of any ideological objections but because Levin and Stabenow are angry that two Democratic nominees for the Sixth Circuit were not confirmed by the Republican-controlled Senate during the Clinton years. Levin is said to be especially angry because one of those Clinton nominees, Helene White, is the wife of one of Levin's cousins. Despite that anger, in recent weeks, Reid has offered to drop the Democratic blockade of three of the Bush Sixth Circuit candidates Richard Griffin, David McKeague, and Susan Bieke Neilson but has pointedly left Saad out of that group.

Republicans believe that is because Saad, who is currently a judge on the Michigan State Court of Appeals, angered Stabenow in September 2003 when he criticized her actions in blocking his nomination. In an e-mail to a supporter, Saad wrote of Stabenow, "This is the game they play. Pretend to do the right thing while abusing the system and undermining the constitutional process. Perhaps some day she will pay the price for her misconduct." But it was Saad who paid the price, because he mistakenly sent the e-mail not only to his supporter but to Stabenow's office. Stabenow immediately protested to the White House, which answered by re-nominating Saad last January.

Before the e-mail incident, there had been no public mention of any issue with Saad's FBI background report. Saad was nominated on November 8, 2001. He received a confirmation hearing before the Judiciary Committee on July 30, 2003. Democrats boycotted the hearing and made no public reference made to any background problems. The committee approved Saad in a straight party-line vote on June 17, 2004.

So the entire background-check file is just a red herring. That same file had been provided to the Judiciary Committee in 2003. All this is about is some personal payback for Levin and Stabenow.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at May 13, 2005 8:08 AM

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