Congressional Record, Volume 146 Issue 72 (Monday, June 12, 2000)

[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:

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.

____________________