Senate Cyber Spy Argues No Crime, No Foul

An international business lawyer by training, Manuel Miranda doesn’t fit the mold of a maverick computer hacker. Too old, at 44, to have grown up with computers, he possesses only rudimentary skills.

But during his brief tour on the Senate Judiciary Committee’s Republican staff, Miranda, by his own admission, participated in Congress’ first known case of cyber-spying, reading some of the 4,000 Democratic computer memos that a clerk on the Republican staff surreptitiously downloaded.

Now he is a leading player in what some represent as a culture clash between senators governed by the hidebound traditions of their institution and the computer-savvy, ideologically zealous staffers who serve them.

Stocky, graying and publicly denounced by Democratic and Republican senators alike for his role in the caper, Miranda has become something of a hero to some conservative columnists and groups.

On Feb. 6, Miranda lost his job for his role in the 18-month romp through the computer files. He now awaits the results of a three-month investigation into the file-accessing conducted by Senate Sergeant-at-Arms William Pickle, who reported privately Wednesday to Committee Chairman Orrin G. Hatch (R-Utah) and Sen. Patrick J. Leahy of Vermont, the committee’s ranking Democrat. The committee is scheduled to take up the report in closed session today.

Nothing less is at stake, Hatch has said, than the sense of trust among senators. If the Judiciary Committee computer systems were vulnerable, he said, so might those everywhere in Congress.

“I want to win,” Hatch said during a recent Judiciary Committee hearing, “but I want to win only if I can win fair and square.”

Miranda, in an interview, dismissed what he called the 69-year-old Hatch’s “antique and anachronistic” belief that “gentlemen don’t read gentlemen’s mail.”

He said it was wildly out of touch with the take-no-prisoners atmosphere that has gripped the Judiciary Committee for years as it has decided whether to ratify or turn back presidential nominees to federal judgeships.

“This stuff ... really matters to both sides,” said a Democratic staffer. “It is about civil rights, civil liberties, the right for citizens to get a fair hearing from their government.... There are real people involved here. That’s why we fight so hard. It’s about something, about the most concrete and emotional issues.”

Miranda, who had yet to see Pickle’s report, said he was sure it would show that he broke neither federal law nor Senate rules when he read the memos after the clerk downloaded them from a server that committee Republicans and Democrats shared. The system’s security was so lax, Miranda said, that it was possible to access the opposition’s files without even overriding its passwords.

“The problem,” Miranda said, “is with senators who do not understand that there is nothing unethical with accessing anything on your computer.”

The clerk first told Miranda in May or June 2002 that he could give him information about Democratic plans for judicial nominees, Miranda said. That was less than six months after Miranda joined the committee as a counsel working on nominations. A Cuban American who came to this country as a 6-year-old refugee, Miranda said he was taking a “public service break” from a successful corporate-law career.

At first, the clerk said that a “friend on the Democratic side” was giving him information on Democratic plans. But eventually, the clerk acknowledged he was downloading memos written by staff members to senators, many of them recounting strategy sessions with liberal interest groups.

“It was valuable information,” Miranda said, that helped the Republican staff prepare for nomination battles.

Democrats realized something was amiss only after some of the memos leaked to the Wall Street Journal, the Washington Times and conservative columnist Robert Novak. When Democrats cried foul, Hatch conducted his own investigation, announcing in late November that two of his staffers -- Miranda and the clerk -- had been involved.

The clerk was put on paid administrative leave, then resigned to attend graduate school. Miranda, who had moved on to Senate Majority Leader Bill Frist’s staff, resigned because, he said, Republicans pressured him to.

Sen. Dianne Feinstein (D-Calif.) said the episode “raises real questions about the ethical values of young people that come to work on this committee.”

Sen. Edward M. Kennedy, (D-Mass.) likened the file-accessing to the Watergate break-in that brought down President Nixon in the 1970s. The only difference, Kennedy said during a recent Judiciary Committee hearing, was that, “in those days, break-ins required physical presence, burglary tools, look-outs and getaway cars. Today, theft may only require a computer and the skills to use it and the will to break in.”

Cyber law experts are divided over whether Miranda and the Hatch clerk violated any laws.

University of Oregon law professor Joseph Metcalfe, a former prosecutor in the Justice Department’s computer crime and intellectual property section, said hacking was not the determining factor.

The issue, Metcalfe said, “is intentionally accessing computer files without authorization, or exceeding authorized access.” The law, he said, “doesn’t require any hacking or any sort of elaborate computer manipulation.”

But Gary Glisson, an attorney in Portland, Ore., with Stoel Rives who specializes in cyber law, said it was possible no crime was committed if no passwords were overridden or security systems circumvented.

“If there is information that is not protected otherwise [by committee or Senate rules] and you access it through a means that does not require you to circumvent any sort of protective device, it is probably not going to run afoul of most criminal laws that apply to electronic intrusion,” Glisson said.

Miranda said the furor over how he got the memos obscured his allegations that the memos documented what he called “public corruption” in the way Democrats and interest groups worked to block or stall at least a half-dozen judicial nominations.

Committee Democrats dismiss those allegations as ludicrous. The memos, they say, show only that Democrats consult and plan strategy with liberal interest groups, just as Republicans do with conservative groups.

Senior committee Democrats recently wrote to the White House and the Justice Department, demanding to know whether Atty. Gen. John Ashcroft, his staff or the White House staff saw any of the memos or used information from them to prepare judicial nominees.

The spying revelations, Democratic members of the judiciary staff say, make it difficult for them to maintain any working relationship with their Republican counterparts.

At a recent meeting, said a Democratic attorney, “I felt like I was sitting there in my underwear,” wondering, she said, what GOP staffers sitting across from her might have learned from reading memos she had written to her boss.