[Congressional Record Volume 146, Number 72 (Monday, June 12, 2000)]
[Senate]
[Pages S4938-S4943]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         PRIVACY ACT VIOLATION

  Mr. INHOFE. Mr. President, I have not a speech but a story to tell. 
The name of that story could very well be ``What Would Have Happened To 
Frankie Vee?'' Now, they say confession is good for the soul. I confess 
that during the Memorial Day recess a couple weeks ago I did not work 
during the whole recess. I spent some time with my family, with my 
wife, with my daughter Katie, her husband Brad, their baby, and some of 
the other kids, and we went to south Texas where we own some property. 
There is a little

[[Page S4939]]

town down there called Port Isabel. There is a restaurant there that 
none of the tourists go to. It is just the local people who go there. 
It is right there on the channel that goes out ultimately to the gulf.
  There is a guy down there who sings. You sit down and you have 
dinner. He has these machines he turns on; they make music. He has a 
microphone, and he sings. He has a beautiful voice. The reason I like 
it is he sings the kind of songs I know such as ``Your Cheatin Heart'' 
and ``Lord, Help Me, Jesus,'' and songs like that. While he is singing, 
his wife sways to the music with her eyes closed. It is just a 
beautiful setting there.
  This was going on when all of a sudden a light went on, and I do not 
know how this happened, but I was looking at this guy, who is just an 
ordinary person--he is about my age. He has gone through tough times in 
his life like I have. He has made money; he has lost money; but he is 
just a very typical American. He is someone who has to obey the laws, 
has to work hard, and has to pay taxes. What occurred to me was that if 
Frankie Vee had blatantly and knowingly and wrongfully committed a 
crime like Kenneth Bacon, blatantly and knowingly and willingly 
committed a crime, he would not be singing there and spreading joy in 
the hearts of many while his wife is swaying. He would be serving time 
in a Federal penitentiary.

  I am not outraged; I am not mad; and I am not feeling any anxiety 
about this. I guess the best way to characterize my feelings after the 
last 7\1/2\ years of this administration using the Justice Department 
to protect its friends and to punish its enemies is just something that 
I feel numb about. I am proud of two of the mainstream media--only 
two--that have been willing to write about these things. And that is 
Fox News and the Washington Times.
  So in this case, we have talked about comparing the crime that was 
committed by Kenneth Bacon with other crimes that were committed--and I 
am going to talk about that in just a minute--by other people in other 
administrations. But what occurred to me was that every citizen out 
here, whether in Wyoming or Oklahoma, has to obey the law and has to be 
punished under the law if that person disobeys the law, and that he 
would be prosecuted if there was justification for prosecution and then 
would be punished accordingly--except in this administration.
  On Thursday, May 25, which was the eve of the Memorial Day recess 
when we left for about a week, the Clinton administration perpetrated 
another outrage to add to its long trail of operations, I guess you 
would say. In the face of the Pentagon inspector general's firm 
conclusion that Kenneth Bacon and Clifford Bernath violated the Privacy 
Act and broke the law and committed a crime, the Secretary of Defense 
announced that he would do nothing to hold these men accountable for 
their actions. And this neatly follows the earlier decision of the 
Justice Department not to prosecute after engaging in a 2-year coverup.
  Now, as I have said before, this case has broad implications for what 
has been done to the rule of law and to the concept of honesty and 
integrity in Government over the past 7\1/2\ years. Above all else, the 
systemic undermining of these time-honored principles constitutes the 
true and lasting legacy of the Clinton and Gore administration. Time 
after time after time, again and again, the Justice Department and 
Janet Reno have used that Department to protect the President's 
political friends and to punish the President's political enemies.
  Today, as a result of this case, there are millions of Federal 
employees who are on notice that the information contained in their 
confidential Government personnel records cannot be protected from 
politically motivated disclosures. They are on notice that the Privacy 
Act can be violated with impunity even when the perpetrators are caught 
redhanded.
  In an additional outrage, we find that the administration now wants 
the taxpayers to pay the legal bills for those two individuals during 
this process.
  This is a letter we have uncovered, after it had been covered up, 
that the Office of the General Counsel is writing to Mr. Kaser, U.S. 
Department of Justice, requesting that the taxpayers pay the legal fees 
of Kenneth Bacon and Clifford Bernath. I ask unanimous consent that at 
the conclusion of my remarks this letter be printed in the Record.

  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 1.)
  Mr. INHOFE. Let's quickly recap what happened. In March of 1998, 
about 8 weeks into the Monica Lewinsky scandal, the Pentagon public 
affairs director, Kenneth Bacon, got a phone call from Jane Mayer, who 
Jane Mayer was a long-time Clinton supporter and friend of the Clinton 
administration. She was an old friend of Kenneth Bacon. They worked 
together on the Wall Street Journal for years before. And she got a 
letter. She was then working on a story for the New Yorker magazine. 
Mayer informed Bacon that she had evidence that a key witness in this 
Presidential scandal, Linda Tripp, had been arrested for larceny as a 
teenager. Tripp was and still is a civilian employee of the Federal 
Government at the Pentagon. Mayer wanted to know how Tripp had replied 
to question No. 21 on her security clearance form, asking if she had 
ever been arrested. If she had answered no, which Linda Tripp did, then 
public disclosure of this information in conjunction with the new 
evidence that Mayer said she had would have been clearly damaging to 
Tripp's credibility and her reputation and would discredit her as 
someone who was bringing charges against the President.
  Soon thereafter, it was discovered that Tripp's teenage arrest was 
the result of a juvenile prank perpetrated against her. The judge in 
the case told her in a laughing way that it was a funny trick and her 
record would be clear. Nevertheless, Mayer's story was published and 
the damage to Tripp was done. She was discredited forever.
  I would characterize that as saying Mr. Bacon had conspired with Ms. 
Mayer to implement ``a scheme to defame and destroy the public image of 
Linda Tripp with the intent to influence, obstruct, and impede the 
conduct and outcome of pending investigations and prosecutions.'' That 
is exactly what the two of them did to Linda Tripp.
  The reason I am reading this is because that is the exact language of 
20 years ago when Chuck Colson committed this same crime at the 
beginning of the Watergate era. The court said Colson implemented ``a 
scheme to defame and destroy the public image of Daniel Ellsberg with 
the intent to influence, obstruct, and impede the conduct and outcome 
of pending investigations and prosecutions.''
  That is exactly the same thing Kenneth Bacon did. The actions of 
Bacon and Bernath immediately became the subject of the Pentagon IG 
investigation to determine if they had violated the Privacy Act which 
is designed to prevent the disclosure of confidential information on 
Government employees.
  The IG quickly concluded that, yes, indeed, they did violate the 
Privacy Act. In July of 1998, the IG made a criminal referral to the 
Justice Department so the case could be prosecuted, but nobody knew it. 
The fact the IG had concluded the report was covered up by the Justice 
Department for 2 years. The Justice Department sat on the case for 2 
years doing nothing--a classic foot-dragging, stonewalling Clinton 
coverup.

  Finally, in March of this year, they quietly announced no one would 
be prosecuted in this case. And they call it a Department of Justice. 
The Department said it concluded Bacon and Bernath ``didn't intend to 
break the law'' when they made the disclosure of the Tripp information, 
as if that is ever a legitimate excuse for anything.
  I suggest if the Senator who is occupying the chair were driving down 
a Wyoming highway at 100 miles an hour and were pulled over by a 
highway patrol and he said, ``I didn't intend to break the law,'' that 
everything would be fine.
  This is how the process works. Once the Justice Department refuses to 
prosecute, even after a criminal referral for prosecution has taken 
place, the very least that can happen to a person is the boss of the 
individual who is offending may take some kind of personnel action.
  It was turned over to the Secretary of Defense, William Cohen. He was

[[Page S4940]]

charged with evaluating the conclusions of the IG report and taking any 
action he deemed appropriate, such as firing both of them. Keep in 
mind, this should not even have happened. This should not have taken 
place because by this time, there should have been a criminal 
prosecution.
  This brings us to 2 weeks ago, Thursday, when Cohen announced what he 
deemed appropriate. He sent Bacon and Bernath personal letters 
expressing disappointment in their actions, making a clear point they 
were not letters of reprimand and will not be placed in their personnel 
records. It is not even a slap on the wrist. In other words, he did 
nothing. He did not fire anyone. He did not fine anyone. He did not 
suspend anyone. He took the IG's conclusion that the Privacy Act was 
broken and walked away without exacting any measure of accountability 
or justice. It is unbelievable.
  He did, however, publicly release the IG report and related 
documents, and these clearly show the inspector general unhesitatingly 
concluded that Tripp's privacy was compromised, that the Privacy Act 
was violated, and that the law was broken. This was in the IG report. 
The IG totally rejected Bacon's and Bernath's contorted arguments to 
the contrary.
  In addition, the IG report clearly shows that no serious 
investigation was ever conducted into the involvement of other Clinton 
administration officials or friends outside the Pentagon, such as those 
in the White House who may have been involved in orchestrating this 
smear of Linda Tripp.
  I urge my colleagues to read an article that was in the Washington 
Times on Saturday, May 27, 2000. It lays out clear evidence that Bacon 
and Bernath did not act alone in this matter, as they claim. There is 
evidence the IG did not adequately follow up. Yet it is the kind of 
evidence that, as Clinton friend Dick Morris has said, would lead to a 
conclusion any 6 year old could understand; namely, that Bacon and 
Bernath most certainly did not act alone.
  I ask unanimous consent this article from the Washington Times to 
which I just referred be printed in the Record at the conclusion of my 
remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 2.)
  Mr. INHOFE. Mr. President, I will chronologically reconstruct what 
happened in this case. It is important I be redundant so that people 
will understand and that it will not be forgotten and covered up.
  On March 12, 1998, New Yorker magazine writer Jane Mayer, a former 
Wall Street Journal reporter, called Kenneth Bacon who used to work 
with Mayer at the Wall Street Journal, asking him about a question on 
Linda Tripp's personnel file for a story she was writing.
  On March 13, the very next day, Bacon tasks Clifford Bernath, then a 
Pentagon public affairs deputy, with answering Mayer's question. 
Bernath writes in his journal: ``Ken has made clear it's a priority.''
  Further, in March of that same year, the New Yorker story claims 
Tripp violated the law.
  In March, Defense Secretary William Cohen calls the disclosure 
``certainly inappropriate, if not illegal.'' Cohen continued: Tripp's 
file ``was supposed to be protected by the privacy rules.'' The DOD 
inspector general's investigation is initiated.
  An investigation was initiated in March of 1998.
  In April of 1998, Cliff Bernath was deposed by Judicial Watch. 
Bernath was accompanied by a battery of Government lawyers from the 
Justice Department, the Defense Department, and the White House, in 
addition to one from Williams & Connolly appearing on behalf of the 
First Lady who was then a defendant in the FBI file suit.
  Over the next 6 hours, Bernath proceeded to change his story. He had 
previously insisted the request was handled in a routine way. In this 
deposition, he concedes that it was a high-priority issue by Ken Bacon.
  On May 21, 1998, at a Pentagon press conference, Ken Bacon declined 
comment--as he has since repeatedly--to the press, including refusing 
to deny whether the White House directed him to release that 
information on the grounds that the IG was still investigating.
  On July 10, 1998, Federal Judge Royce Lamberth ordered the Defense 
Department to seize the computer of a Pentagon staffer who admits 
releasing information on Tripp's security clearance form. Lamberth 
ruled that the Department's inspector general should check the computer 
because the Pentagon aide, Clifford Bernath, deleted documents, 
although Bernath claimed none of the deleted documents concerned Tripp.
  Jumping forward to February 9, 2000, at a House Armed Services 
Committee hearing, Secretary Cohen had no answer to the question from 
Representative Buyer on where the DOD report was, in what stage it was. 
We found out the report was concluded almost 2 years before that 
question was asked.
  I have to add a personal note in defense of Bill Cohen. I do not 
believe he knew. I think the White House covered that up and the 
Justice Department covered up the fact that the report was concluded 
almost 2 years before that hearing. I do not believe Cohen actually was 
aware of that.
  On March 6, 2000--this brings the Federal court back in--Federal 
Judge Lamberth signed an order requiring DOD to produce records 
concerning the release of information in Tripp's DOD files and 
information on any attempts to withhold information from the public 
and/or investigators about the details of that release.
  Then on March 13, 2000, Judge Royce Lamberth stated:

       The Tripp release presents such a clear violation of the 
     Privacy Act.

  Lambert said:

       The court finds it impossible to fathom how an internal 
     investigation into such a simple matter could take so long to 
     conclude.

  In fact, even though that statement was made by the judge in the 
court records on March 13, 2000, that internal investigation had been 
concluded in July 1998, nearly 2 years before.
  In previous talks on the floor, I have had occasion to compare this 
crime with a crime that was committed 20 years before. I have done so 
because when you talk about what President Clinton and Vice President 
Gore have allegedly done in terms of getting foreign contributions, 
which are a violation of law, there is nothing really precedented about 
that that we can go back and compare with someone else who was 
prosecuted.
  In this case, the crime that was committed by Kenneth Bacon, and 
perhaps more people with him, is a crime exactly like the crime that 
was committed 20 years before by Chuck Colson.
  Let's go back and see just what Chuck Colson did. This is what he 
said and did, in his own words. This is going back to 1971:

       . . . I got hold of derogatory FBI reports about Ellsberg 
     and leaked them to the press.

  He said further, in 1976:

       I happily gave an inquiring reporter damaging information 
     compiled from secret personnel files.

  I know, again, this is exactly the same thing that we now have a 
confession by Kenneth Bacon that he did. He got ahold of derogatory 
reports about Linda Tripp. And then he happily gave them to an 
inquiring reporter--the same thing.
  So what happened to Colson? Colson was sentenced by U.S. District 
Court Judge Gerhard Gesell to a prison term. On April 7, 2000, in a 
deposition, he provided the New Yorker writer Jane Mayer with Tripp 
information. In other words, he admitted it. He admitted that. There is 
no question about whether or not he committed this crime. There is no 
doubt about it, no dispute about it.
  Bacon said: I am sorry that I did not check with our lawyers or check 
with Linda Tripp's attorneys about this.
  Sorry? Sorry really didn't cut it for Chuck Colson. Chuck Colson 
ended up in a Federal penitentiary. Colson committed the crime in July 
1971. He admitted his guilt and pleaded on June 3, 1974, and was 
sentenced to the Federal penitentiary on June 21, 1974.
  Bacon committed his crime in March of 1998. He admitted what he had 
done in June of 1998. The Pentagon inspector general referred the 
matter for criminal prosecution in July of 1998. So now 2 years later, 
in April, May, and June of 2000, the Clinton Justice Department says it 
is going to take a pass, hoping nobody will see or hear about this at 
this late date. After all, 2 full years

[[Page S4941]]

had transpired since the report was concluded.
  So Colson went to jail and served time in prison. If there were 
justice and equal application of the law, Bacon would go to jail and 
serve time in prison.
  Is this the first time the Clinton administration has been involved 
in lawbreaking and corruption? Not hardly. It has almost become a way 
of life--Travelgate, Filegate, Buddhist Temple fundraisers, illegal 
foreign campaign contributions, the compromise of high-technology 
nuclear secrets to the Chinese, not to mention perjury and obstruction 
of justice. The list goes on and on.

  Why is this important? It is all about a concept. It is as basic to 
America as the concept of going to church on Sunday. That concept is: 
Equal application of the law.
  Chuck Colson realized he did the wrong thing. Chuck Colson, in a book 
that he wrote in 1976, called ``Born Again,'' stated:

       I happily gave an inquiring reporter damaging information 
     about Ellsberg's attorney, compiled from secret FBI dossiers.

  He said:

       . . . I pleaded guilty after being told by Watergate 
     prosecutor Leon Jaworski that my conviction would deter such 
     a thing from [ever] happening again.

  That is a quote.
  I suggest that it has happened again, and they are hoping no one will 
notice.
  I refer to an article that was written on June 12--a current 
article--in the Weekly Standard by Jay Nordlinger. The question is: 
``Why Didn't Bacon Get Fried?'' That is the name of the article. I will 
quote a few things from it. Jay Nordlinger wrote:

       It's just a small matter, in all the Clinton grossness, but 
     it counts. Linda Tripp was the victim of a dirty, and 
     illegal, trick. It was played on her by her own bosses at the 
     Pentagon. And now those men--Kenneth Bacon and Clifford 
     Bernath--have escaped with the wispiest slaps on the wrist. 
     This is ho-hum for the Clinton administration; but it is a 
     reminder of how unlawful and indecent this administration has 
     been.

  Further in the article he talks about Joseph diGenova, who is a 
former U.S. attorney with long experience in this area.
  Quoting from the same article, diGenova is quoted as saying:

       The treatment of Bacon and Bernath suggests that the 
     Privacy Act will be enforceable only in civil lawsuits filed 
     by the victims. If there's no adverse action--not even a 
     letter that goes into somebody's file--there's no deterrence 
     here. None whatsoever.

  The article by Jay Nordlinger further states:

       The president and his men have a bit of history with the 
     Privacy Act. You perhaps remember Passportgate. Toward the 
     end of the 1992 presidential campaign, it was learned that 
     political appointees in the Bush State Department had rifled 
     through candidate Clinton's passport files and those of his 
     mother. Democrats demanded an independent-counsel 
     investigation. They got one--led by diGenova. One of the 
     officials involved, Elizabeth Tamposi, was dismissed. The 
     acting secretary of state, Lawrence Eagleburger, offered to 
     resign over the matter. (President Bush refused). Said 
     Clinton, in his first press conference [after he had been 
     elected President of the United States], ``If I catch anybody 
     doing [what the passport-file offenders did], I will fire 
     them the next day. You won't have to have an inquiry or 
     rigmarole or anything else.''
       About a year later, Passportgate had something of a 
     reprise, this time featuring appointees in Clinton's own 
     State Department. A few of them got hold of Bush-
     administration personnel files and leaked them to Al Kamen 
     of the Washington Post.

  Mr. President, I ask unanimous consent this article be printed at the 
conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 3.)
  Mr. INHOFE. Finally, I guess it begs the question, What can be done 
now? I mentioned that the media, the mainstream media, has pretty much 
ignored this. They like Kenneth Bacon. He was a member of the media. 
They are not going to do anything about it, I have decided.
  Fortunately, the Washington Times has done something about it. 
Fortunately, Fox News has done something about it. But there is 
something that can be done. When the new administration takes office, 
and a new Attorney General comes in, the Bacon-Bernath lawbreaking 
should be referred again for criminal prosecution. A professional 
Justice Department, freed from corrupt partisan influences, should 
prosecute this case and uphold the law.
  Such a referral can easily be added to a list of such referrals on 
other matters which are already being contemplated, as Representative 
Dan Burton, who is the chairman of the appropriate House committee, 
mentioned yesterday.
  For example, these, as mentioned, would include criminal referrals 
related to:
  No. 1, evidence that the President broke campaign finance laws, was 
aware of illegal foreign contributions, and changed policies in return 
for campaign contributions;
  No. 2, evidence that the Vice President broke the law when he made 
the illegal fundraising phone calls from the White House;
  No. 3, evidence that the Vice President committed a felony by lying 
to the FBI investigators about his knowledge of illegal fundraising 
activities;
  No. 4, that Janet Reno committed obstruction of justice when she 
refused to appoint an independent counsel;
  And now we add this to the list: Evidence that Ken Bacon and Clifford 
Bernath broke the law when they violated the Privacy Act in the Linda 
Tripp matter.
  It is obvious if the next President of the United States happens to 
be Al Gore that very likely we will have the same type of Justice 
Department. I don't think our forefathers ever anticipated, when they 
were constructing these documents, our Constitution and our statutes, 
that we would have someone in the President's office who would use the 
Justice Department to protect his friends and punish his enemies. I 
have come to the conclusion that if this had been Frankie Vee who had 
done this, he would currently be serving time in the Federal 
penitentiary.
  I yield the floor.

                               Exhibit 1

                                            Department of Defense,


                                    Office of General Counsel,

                                 Washington, DC, December 3, 1999.
     Re Request for Representation of Clifford H. Bernath in Tripp 
         v. Executive Office of the President (D.D.C. No 99-2254).

     Sylvia Kasar, Esq.,
     U.S. Department of Justice,
     Civil Division--Federal Programs Branch,
     Washington, DC.

       Dear Ms. Kasar: I am writing to request that the Department 
     of Justice authorize private counsel at federal expense for 
     Mr. Clifford H. Bernath in connection with the above-
     captioned litigation, pursuant to 28 C.F.R. Sec. 5015.
       We believe that this lawsuit concerns matters within this 
     scope of Mr. Bernath's employment at the Department of 
     Defense. Based on the information now available to us--which 
     has also been made available to your office--we believe that 
     providing Mr. Bernath with private counsel at federal expense 
     is appropriate and in the interest of the United States.
       Thank you for your consideration of this matter.
           Sincerly,
                                                     Brad Wiegnam.

                               Exhibit 2

               [From the Washington Times, May 27, 2000]

  Clinton Accused in `Smear'--Tripp Lawyers Blame White House for Leak

                            (By Jerry Seper)

       Attorneys for Linda R. Tripp yesterday said the release of 
     information from her confidential personnel file was ``wrong 
     and illegal,'' and part of a ``smear campaign'' by the White 
     House to damage her reputation.
       The attorneys said the campaign was engineered by President 
     Clinton and his senior advisers, who ``turned their public 
     relations machine against Mrs. Tripp'' to divert attention 
     from the president's conduct with former White House intern 
     Monica Lewinsky.
       ``The campaign worked, and Mrs. Tripp was publicly 
     humiliated on numerous occasions,'' attorneys Stephen M. 
     Kohn, David K. Colapinto and Michael D. Kohn said in a 
     statement. ``Her reputation was poisoned, her motives 
     questioned and even her personal appearance became fair game 
     for ridicule.''
       They said the leak of the Tripp file by Pentagon spokesman 
     Kenneth Bacon to a reporter looking to write a critical story 
     of Mrs. Tripp was part of that scheme, and that the file's 
     disclosure was prohibited under the federal Privacy Act.
       The Defense Department's Office of Inspector General 
     concluded that Mr. Bacon and his former top deputy, Clifford 
     H. Bernath, violated Mrs. Tripp's privacy rights by providing 
     information from her confidential personnel file to a 
     reporter for the New Yorker magazine.
       But the two men received only mild reprimands Thursday from 
     Defense Secretary William S. Cohen.
       Mr. Cohen criticized Mr. Bacon and Mr. Bernath in letters 
     for what he called a ``serious lapse of judgment,'' although 
     neither letter was made part of the men's personnel files and 
     no further disciplinary action was recommended. The case is 
     closed.

[[Page S4942]]

       Mr. Clinton, through a spokesman, yesterday said he had 
     ``full confidence'' in the Cohen decision.
       ``The president has full confidence in the secretary of 
     defense's management of his staff and the Pentagon and 
     supports the judgment of the secretary of defense to take the 
     actions appropriate,'' said P.J. Crowley, chief spokesman for 
     the White House National Security Council, Mr. Crowley 
     formerly worked for Mr. Bacon.
       Mrs. Tripp is the Pentagon official who blew the whistle on 
     Mr. Clinton's affair with Miss Lewinsky. Both Mrs. Tripp and 
     Miss Lewinsky worked for Mr. Bacon.
       Mrs. Tripp has since field a lawsuit accusing the White 
     House and the Defense Department of using her confidential 
     file to smear her reputation.
       In a five-page statement, her attorneys noted that the leak 
     to Jane Mayer, a reporter for the New Yorker, came after Mr. 
     Bacon met privately over dinner with former White House 
     Deputy Chief of Staff Harold Ickes--who ``volunteered'' to 
     help Mr. Clinton in damage control after the Lewinsky 
     accusations surfaced. They said Mr. Ickes also had met with 
     Miss Mayer before the information was released.
       ``This was simply not an innocent release of information in 
     response to an inquiry by a reporter,'' they said. ``It is 
     well-established that Mr. Bacon and his associate who was 
     involved in the illegal leak knew that the information 
     requested from Mrs. Tripp's security file would be used in a 
     derogatory manner to smear Mrs. Tripp and question her 
     credibility.''
       They also said Mr. Bacon and Mr. Bernath had been told the 
     information from the file was covered by the Privacy Act and 
     could not be released without Mrs. Tripp's consent.
       Mr. Ickes, now coordinating first lady Hillary Rodham 
     Clinton's run for a U.S. Senate seat in New York, did not 
     return calls to his office for comment. He previously denied 
     any wrongdoing, saying that while he met with Mr. Bacon and 
     Miss Mayer before the file was leaked, he denied the 
     discussions were part of a conspiracy.
       The White House also has denied any involvement in the 
     leak, and Mr. Bacon, in a statement on Thursday, said he did 
     not believe he violated Mrs. Tripp's privacy rights and that 
     ``ultimately my conduct will be found lawful.''
       Sen. James M. Inhofe, Oklahoma Republican who denounced a 
     Justice Department decision last month not to seek an 
     indictment of Mr. Bacon or Mr. Bernath, despite concerns 
     outlined in a July 1998 report by the inspector general, 
     called the Cohen reprimand ``a travesty.''
       ``At a minimum, Bacon and Bernath should have been fired,'' 
     said Mr. Inhofe. ``This is what happened to the Bush 
     administration official who misused candidate Bill Clinton's 
     passport file in 1992. It is what Bill Clinton said would 
     happen to anyone in his administration found guilty of a 
     similar invasion of privacy.''
       Mr. Cohen yesterday denied that he whitewashed the release 
     of information from Mrs. Tripp's confidential file, saying 
     there was ``no attempt to injure Miss Tripp's credibility or 
     her reputation.''
       He told reporters at Morristown Airport after touring 
     nearby Picatinny Arsenal that Mr. Bacon and Mr. Bernath were 
     seeking to respond to pressure from the media and that there 
     was no attempt to orchestrate any campaign to discredit Mrs. 
     Tripp.
       ``I don't intend to fire him,'' Mr. Cohen said of Mr. 
     Bacon.
       In a final report made public yesterday, acting Inspector 
     General Donald Mancuso said the harm to Mrs. Tripp's privacy 
     interests caused by the release of her confidential personnel 
     file outweighed any public benefit.
       ``Accordingly, the release constituted a clearly 
     unwarranted invasion of her privacy,'' the report said. The 
     report said the actions of Mr. Bacon and Mr. Bernath 
     constituted a violation of the federal Privacy Act.
       The documents leaked showed that Mrs. Tripp had said she 
     never had been arrested, when in fact she had--in what later 
     was described as a teen-age prank that occurred more than 30 
     years ago.

                             Exhibit No. 3

             [From the The Weekly Standard, June 12, 2000]

 Why Didn't Bacon Get Fried?--The Pentagon's Anti-Tripp Leakers Get a 
       Slap on the Wrist, and the Privacy Act a Slap in the Face

                          (By Jay Nordlinger)

       It's just a small matter, in all the Clinton grossness, but 
     it counts. Linda Tripp was the victim of a dirty, and 
     illegal, trick. It was played on her by her own bosses at the 
     Pentagon. And now those men--Kenneth Bacon and Clifford 
     Bernath--have escaped with the wispiest slaps on the wrist. 
     This is ho-hum for the Clinton administration; but it is a 
     reminder of how unlawful and indecent this administration has 
     been.
       Before this little affair slides all the way down the 
     memory hole, recall the essential facts: In January 1998, the 
     Lewinsky scandal exploded on Bill Clinton's head. From the 
     point of view of the White House, Linda Tripp was the major 
     villain. It was therefore a matter of urgency to discredit 
     her. In March, Jane Mayer, a Clinton-friendly reporter for 
     the New Yorker, acquired what seemed a valuable piece of 
     information: Tripp, as a teenager, had been arrested for 
     larceny. Mayer put in a call to Ken Bacon, assistant 
     secretary of defense for public affairs. He was an old 
     friend; the two had worked together at the Wall Street 
     Journal. Mayer had an amazingly specific question for him: 
     How had Tripp responded to Question 21, parts a and b, on 
     Form 398? This was a highly sensitive national-security 
     questionnaire, under the eye of the Privacy Act Branch of the 
     Defense Security Service; Question 21 dealt with arrests and 
     detentions.
       Bacon quickly swung into action. He ordered his deputy, 
     Cliff Bernath, to get Mayer her answer. Hours before the 
     reporter's deadline, Bernath told her not to worry: ``Ken has 
     made clear it's priority.'' Moving heaven and earth, and 
     alarming career officers as he went, Bernath delivered--right 
     on time.
       It looked like bad news for Tripp: She had not, in fact, 
     disclosed on Form 398 her 1969 arrest. Bernath told the New 
     York Times that Tripp faced the ``very serious charge'' of 
     lying to the government. Defense secretary William Cohen 
     declared on CNN that Tripp was ``guilty of a contradiction of 
     the truth,'' which would be ``looked into.'' It soon emerged, 
     however, that Tripp's arrest had been the result of a 
     juvenile prank, perpetrated against her. The judge had 
     reduced the charge to one count of loitering, telling her, as 
     she recalled it, that her record would be clear. The 
     Pentagon, rather sheepishly, dropped its investigation of 
     Tripp. Instead, Congress demanded that the department 
     investigate Bacon and Bernath--for violating the Privacy Act. 
     In their attempt to help Mayer nail Tripp, the two men seemed 
     to have nailed themselves.
       The Pentagon's inspector general, Eleanor Hill, duly 
     launched an investigation. The case being clear-cut, it 
     didn't take her long to find that Bacon and Bernath had 
     indeed violated the Privacy Act. In July 1998, she referred 
     the matter to the Justice Department--which then sat on it 
     for almost two full years. This would have been 
     incomprehensible in any other administration. Only in April 
     2000 did Justice announce that it would not prosecute. 
     Incredibly, the department claimed that there was ``no direct 
     evidence upon which to pursue any violation of the Privacy 
     Act.''
       It was then left to Secretary Cohen to determine a penalty 
     for Bacon and Bernath--if any. What he decided to do was 
     write a letter expressing his ``disappointment'' in the men. 
     Each would receive a copy. In this letter, Cohen said that 
     his subordinates' actions had been ``hasty and ill-
     considered.'' He noted that, at the time of the incident, 
     they and others at the Pentagon were under instruction not to 
     release anything concerning Tripp without first consulting 
     department lawyers. The strongest language he used was 
     ``serious lapse of judgment.'' But this was balanced against 
     ``the very high quality of the performance that you have 
     otherwise exhibited.'' Amazingly, Cohen told the press that 
     ``there was no attempt to injure Miss Tripp's credibility 
     or her reputation.''
       Contemplating this, Dick Morris, the former Clinton 
     adviser, had no choice but to remark, ``Generally, it is a 
     good political rule never to say anything that the average 6-
     year-old knows isn't true.''
       The most striking thing about the Cohen letter is that it 
     will not even be placed in either Bacon's or Bernath's 
     permanent file. According to the Pentagon, this is not a 
     letter of reprimand. A department spokesman, Craig Quigley, 
     described it as ``a personal letter to both Mr. Bernath and 
     Mr. Bacon.'' Incredulous, a reporter said, ``So, it's not a 
     letter of reprimand?'' ``No,'' said Quigley, ``Well, what 
     would you call it?'' Said Quigley, ``It's an official letter 
     expressing the secretary's disappointment in the judgment'' 
     of the two officials.
       Quigley, like his boss, Bacon, also persisted in the 
     fiction that the leak to Mayer was no big deal--a matter of 
     routing, just business as usual. ``This information was taken 
     in the normal course of the day.'' It was ``done very clearly 
     and above board.'' You know how it is at the Pentagon: ``A 
     reporter will call with a question or request for data of 
     some sort, and it's provided as best we can.'' Anyone who has 
     ever covered, or tried to cover, the Defense Department will 
     gladly tell you this is rot. Quigley trotted out another line 
     as well, one that is increasingly becoming the Bacon defense: 
     ``You always do a balancing act between the Freedom of 
     Information Act and the Privacy Act.'' This assertion is 
     absurd: Form 398 is strickly a Privacy Act document.
       After Cohen's non-reprimand, a few Republicans properly 
     cried bloody murder. Sen. James Inhofe of Oklahoma accused 
     the Pentagon of ``a whitewash and a coverup.'' He said that 
     ``the law was broken, and nothing is being done about it.'' 
     The failure to punish the leakers would ``send a signal to 
     millions of federal civilian and military employees that 
     their private government records can be made public for 
     political purposes, and no one will be held accountable.''
       For their part, Bacon and Bernath are denying any violation 
     of the Privacy Act. At a press conference, Bacon was asked 
     whether he would apologize to Tripp. ``Well,'' he replied, 
     ``I have already issued the apologies that I have to issue.'' 
     (He didn't specify what those were.) ``I don't think that I 
     performed unlawfully,'' he continued. His only regret was 
     that he had not ``checked this with lawyers.'' In an official 
     statement, Bacon said, ``It certainly never occurred to me 
     that the Privacy Act would preclude disclosing how a public 
     figure recorded a public arrest record on a security 
     clearance.'' And here is more, perhaps Bacon's richest 
     utterance to date: ``I obviously knew that this was an issue 
     of considerable public concern and that the public

[[Page S4943]]

     had an interest in knowing whether Ms. Tripp had accurately 
     acknowledged her arrest record.''
       Bernath, the junior partner in the enterprise, following 
     orders, although blindly, was similarly unbowed, saying, ``My 
     actions were not only legal, but also ethical and correct.''
       Meanwhile, Tripp is suing both the Pentagon and the White 
     House for Privacy Act violations and witness intimidation. 
     This suit may in fact have been on Cohen's mind when he 
     declined to take serious action against his guys. Cohen gave 
     the game away somewhat on Meet the Press, saying of Bacon, 
     ``He is now the subject of a major lawsuit. And so he will 
     continue to be held accountable to the legal process.'' This 
     is exactly the sort of thinking that worries many observers, 
     including Joseph diGenova, a former U.S. attorney with long 
     experience in this area. Says diGenova, ``The treatment of 
     Bacon and Bernath suggests that the Privacy Act will be 
     enforceable only in civil lawsuits filed by the victims. It 
     there's no adverse action--not even a letter that goes into 
     somebody's file--there's no deterrence here. None 
     whatsoever.'' In other words, ``Don't leave it solely to the 
     victim, who has to pay lawyers and so on, to enforce her 
     rights under the Privacy Act. The government should enforce 
     those rights, especially given that it was government people 
     who broke the law.''
       The president and his men have a bit of a history with the 
     Privacy Act. You perhaps remember Passportgate. Toward the 
     end of the 1992 presidential campaign, it was learned that 
     political appointees in the Bush State Department had rifled 
     through candidate Clinton's passport files and those of his 
     mother. Democrats demanded an independent-counsel 
     investigation. They got one--led by diGenova. One of the 
     officials involved, Elizabeth Tamposi, was dismissed. The 
     acting secretary of state, Lawrence Eagleburger, offered to 
     resign over the matter (President Bush refused). Said 
     Clinton, in his first press conference as president-elect, 
     ``If I catch anybody doing [what the passport-file offenders 
     did], I will fire them the next day. You won't have to have 
     an inquiry or rigmarole or anything else.''
       About a year later, Passportgage had something of a 
     reprise, this time featuring appointees in Clinton's own 
     State Department. A few of them got hold of Bush-
     administration personnel files and leaked them to Al Kamen of 
     the Washington Post. Kamen thus had the following story: 
     ``Guess whose working file was empty? That of very 
     controversial longtime Bush employee Jennifer Fitzgerald.'' 
     Kamen, of course, was being coy here: Fitzgerald was the 
     woman rumored to have had an affair with President Bush. 
     Damen was also able to report that Elizabeth Tamposi's file 
     included ``concerns from very senior State Department types 
     that she was not ready for an assistant secretaryship.''
       Immediately, the State Department's inspector general, 
     Sherman Funk, began an investigation. He found that two 
     employees--Joseph Tarver and Mark Schulhof--were stone-cold 
     guilty. Funk told Congress that the pair had engaged in 
     ``criminal violations of the Privacy Act provable beyond a 
     reasonable doubt.'' The Justice Department (developing a 
     pattern) refused to prosecute. In November 1993, the 
     department secretary, Warren Christopher, fired Tarver and 
     Schulhof. This must have been one of the last acts of 
     Clinton-administration honor. The contrast with the Bacon-
     Tripp case--in this last respect--is overwhelming.
       Then, of course, there was Filegate, in which the White 
     House gathered unto its bosom hundreds of Republican FBI 
     files, including Linda Tripp's. And the president himself was 
     prompt to release letters from Kathleen Willey--a woman who 
     had accused him of improper sexual conduct--when it was 
     convenient.
       If all this didn't begin with Watergate, it was certainly 
     enshrined there. When the Bacon-Tripp story first broke, 
     Charles Colson reminded this magazine that it was to a Bacon-
     style disclosure that he had pleaded guilty, in 1974. He had 
     released information from Daniel Ellsberg's FBI file to the 
     Copley Press, at a time when Ellsberg was a defendant in the 
     Pentagon Papers case and a thorn in the Nixon 
     administration's side--the parallels to Tripp are neat. 
     Colson went to jail for this. The special prosecutor, Leon 
     Jaworski, rejoiced that Colson's plea had set a precedent: No 
     longer would political appointees so readily smear their foes 
     in this way. Indeed, the Privacy Act was a post-Watergate 
     reform, intended to check Nixonian abuses.
       Says diGenova, ``The Bacon thing is a facial and obvious 
     violation of the Privacy Act. It is made for it.'' Bear this 
     in mind: ``Linda Tripp was engaged in a very public dispute 
     with the president.'' His presidency hung in the balance; he, 
     like Nixon before him, was on the road to impeachment. ``This 
     is precisely the kind of circumstance that Congress had in 
     mind when it gave us the Privacy Act. And not to punish this 
     conduct is a very serious mistake.''
       Apart from Tripp's lonely lawsuit, this affair has now 
     reached an end. Yet two questions hang over it. First, Who 
     gave Jane Mayer that promising tidbit from Tripp's past? 
     Mayer says that it was a former wife of Tripp's father. 
     Others--not necessarily full-time conspiracy theorists, 
     either--wonder whether that's the full story. Team Clinton 
     had every reason to dig for dirt on Tripp. The chief 
     recordkeeper in the White House, Terry Good, testified in a 
     deposition that the White House counsel's office had 
     requested ``anything and everything that we might have in our 
     files relating to Linda Tripp.''
       The second question is, Did Bacon act of his own 
     initiative? Or was he prompted by someone--presumably at the 
     White House--to let fly what appeared to be damaging 
     information? Bacon has steadfastly claimed that he acted 
     entirely on his own, with no order, wink, or nod. But this 
     strikes most people familiar with the workings of the 
     Pentagon--and of the Clinton camp generally--as implausible. 
     A veteran Defense Department hand told us, ``Couldn't happen, 
     didn't happen, no way, no how. Remember: Everyone who comes 
     into public affairs is told Privacy Act rules. You don't 
     release someone's confidential information--to anyone, much 
     less the media. This is Public Affairs 101. And Bacon is 
     perpetrating a shameful lie. Any professional in the building 
     will tell you the same thing.''
       So, the Clinton administration lurches to a close, its 
     players going this way and that, its loose ends being tied 
     up, however unsatisfactorily. Jane Mayer, the little lady who 
     started this not-so-great war, was recently a guest at a 
     White House state dinner. She was seated in a place of honor: 
     the first lady's table. As for her friend Bacon, he has waxed 
     philosophical about his humble-gate: ``This is an extremely 
     small part of a large and painful national drama.''
       Yes, but it is significant nonetheless. The rule of law has 
     taken a beating in this administration, not to mention such 
     demands as honesty and trustworthiness. After Cohen flaked 
     out, one of Tripp's lawyers made a somewhat poignant 
     statement: ``Despite Linda Tripp's unpopularity, the law 
     should protect her.'' Such a simple notion. And powerful, 
     even now.

  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. VOINOVICH. Mr. President, for purposes of the statement I am 
about to give, I ask unanimous consent that I be permitted to display a 
small safe.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________