The FBI is demanding that 17 U.S. senators surrender their appointment books, schedules, phone records and electronic calendars. The idea is to expose contacts that the lawmakers have had with reporters.

How can this be? When last I checked, it was not a crime for anyone not under a legal gag order to talk to someone from the media. In fact, such communication is a legitimate part of public service.

This country, I trust, is still a democracy in which individuals – including those elected to represent the public – have the right to privacy.

Executive branch officials have no business prying into a legislator’s luncheon date with a reporter.

The pretext for the FBI’s scorched-earth policy is national security, that great fuzzy blanket the administration is using to envelop its grabs for power. But both Senate and House rules specify that congressional leaks should be probed by their own ethics committees.

Vice President Dick Cheney set off the witch hunt by complaining to the Senate and House intelligence committees that someone in a joint classified briefing session had leaked quotes from covert American intercepts of telephone conversations by al-Qaida suspects the day before the Sept. 11 attacks. The existence of those conversations had been leaked previously by the administration itself to demonstrate how alert our intelligence agencies were. But it had not revealed specific wording that could pinpoint the individual being eavesdropped.

Cheney claimed the breach of security was so horrific as to be illegal and unpatriotic. He demanded a full grovel from committee members and their staffs. Many defense experts, however, argued that while the leak irritated the White House, it did no real harm to our pursuit of terrorists.

FBI agents have thrown themselves into the probe with excessive diligence. Their own agency is currently being investigated by the intelligence committees for fumbling possible clues that might have helped to avert the terror attacks. The FBI’s vengeful rummage into private congressional conversations is beyond irony. It is shocking and probably unconstitutional as well.

The FBI is not immune to politics. Its search for evidence focuses only on the Democratic-controlled Senate and ignores the Republican-controlled House. The agency is headed by a political appointee selected by a GOP president whose personal relationship with Capitol Hill is increasingly contentious.

George W. Bush behaves as if he were emperor and Congress, a bunch of docile serfs. Upon what meat doth this our Caesar feed, that he is grown so great?

The purpose of the sweeping FBI investigation is clearly to scare lawmakers into silence on sensitive security issues that should be publicly debated. So far, FBI agents have interrogated about 100 people – the committees’ members and 60 staffers. The FBI also asked the members to submit to polygraph tests. Most refused on the grounds that the request violated the constitutional separation of powers between the executive and legislative branches.

Senate Intelligence Committee Chairman Bob Graham, D-Fla., has cooperated with the probe. Sen. John Edwards, D-N.C., a potential 2004 Democratic presidential candidate, said he would too.

Most members are on vacation, and it is not clear how many will comply. None of them should.

The chilling effect of seeing Congress bow to administration pressure on this matter could be enormous. I naturally sympathize with reporters who might find sources clamming up on them out of fear of political retaliation.

Lists of congressional contacts in the media are unlikely to remain confidential within the FBI. Any curious president would find them irresistible.

And what does the FBI plan to do with the information? If the agency uncovers with certainty the identity of the leaker, does the Justice Department intend to send a senator to jail for an unauthorized slip of the tongue? This is madness.

A leak that did serious harm to national security by revealing secret war plans or a strategy that depended on the element of surprise would indeed be a crime. But so far as anyone knows, the leak at issue did not have any dire consequences.

In any case, crusading against the fine old art of leaking is usually an exercise in futility. The hunt seldom actually turns up the guilty talkative rascals. Premature and potentially embarrassing accounts of pending events may be telling tales out of school, but that’s a universal Washington habit, practiced by the White House as well as Congress.

President Richard Nixon established the infamous “plumbers” unit in the White House to plug leaks. The agents wiretapped associates and friends to find out who was talking to whom. Mostly the taps turned up prolonged negotiations for tennis dates.

Former University of Oklahoma law professor Anita Hill testified before the Senate against Supreme Court nominee Clarence Thomas only after negative testimony she had submitted on the condition of confidentiality was leaked to the press. A subsequent $550,000 Senate probe never could identify the leaker. And so it goes.

The FBI’s crusade to humiliate the senators is likely to be another waste of time. And it will further damage the agency’s already-waning credibility.

—

(Marianne Means can be reached at the e-mail address means@hearstdc.com)

c. 2002 Hearst Newspapers