Questions surround Kagan's handling of White House eco-terrorist controversy 

In 1995 and 1996, future Supreme Court nominee Elena Kagan was involved in a bizarre controversy in which the Clinton White House was accused of siding with an eco-terrorist group locked in a standoff with federal agents deep in the woods of Oregon.  The incident led to an investigation by House Republicans, who concluded that a staffer on the White House Council on Environmental Quality tipped off the environmental radicals to impending action by U.S. Forest Service law enforcement agents -- a leak that Forest Service officials believed endangered the lives of their agents on the ground.

Kagan, at the time an associate White House counsel, had no role in leaking the feds' plans to the radicals, but House Committee on Natural Resources investigators concluded she shirked her responsibility by not searching for the source of the leak or pushing for punishment of the leaker.

"Nothing was ever done by Elena Kagan to learn the details about the leaks, or to identify the leaker and ensure that proper punishment occurred," the committee’s 1999 report concluded. In fact, investigators found evidence suggesting that Kagan, in internal White House discussions, defended the alleged leaker.

The story began in September 1995, when loggers planned to harvest timber from Warner Creek, an old-growth area that had been hit by a 1991 arson fire. The Forest Service approved the harvesting of dead and damaged trees, but some environmentalists claimed the clearing would endanger healthy trees as well.

A group of activists took over the road leading into the forest and blocked it with large rocks and chunks of concrete. They dug trenches, some six feet deep, to prevent trucks from passing, and in one trench they embedded a car in concrete. They built a fortress and settled in for a showdown. More ominously, Forest Service officials believed at least one of the protesters was armed.

At first, Forest Service officials thought the protesters would leave over the winter.  When that didn't happen, and the standoff had continued for nearly a year, Forest Service officials wanted to remove the protesters by force. But those officials knew their superiors in Washington didn't want them to take action, and as the standoff dragged on, the Forest Service began to suspect that the protesters were getting information from someone in the federal government in Washington. "It seemed as though they knew a lot about what we were doing," one Forest Service official told investigators.

As it turned out, they did. The House investigation, conducted by Republican Rep. Don Young, concluded that "the organization behind the protest was in contact with the Council on Environmental Quality (CEQ) within the White House during the protest," and that "several conference calls were held…that resulted in orders not to arrest or remove the protesters."

House investigators also found that when Forest Service officials finally began planning an operation to remove the protesters in July 1996 -- an action that could have been dangerous, given the demonstrators' zeal and the possibility that they were armed -- the White House not only delayed the action but tipped the protesters off. "Several interviewees have indicated an informed belief that there was a 'back channel' of information from the CEQ to the protesters about the law enforcement operation and the decision-making process, which may have jeopardized both the law enforcement operation and the lives and safety of the law enforcement officers," the report concluded.

Finally, on August 16, 1996, the Forest Service took action, using a bulldozer to break up the protesters' barricades. The protesters were arrested without injury and the road was ultimately re-opened. The government called off the logging.

What officials feared could be a violent end was in fact relatively quiet. But the question remained: Who leaked the confidential Forest Service communications to the protesters?  Giving out such information to potentially violent protesters engaged in a standoff with federal agents was a serious matter, yet House investigators found that White House officials never conducted a thorough investigation. What the House did find, in examining the notes of a Justice Department official involved in the matter, was that a senior CEQ official, a woman named Dinah Bear who had wide contacts in the environmental community, was widely suspected by colleagues of having been the source of the leak.

What role did Kagan play in all of this? First of all, House investigators discovered that she knew about the Warner Creek matter as it was happening. They obtained notes from a July 12, 1996 White House meeting, which Kagan attended, at which the controversy was discussed in detail, including fears that the protesters were armed and the standoff might end in violence.  (The administration was particularly sensitive to such matters after violent ends to standoffs in Ruby Ridge, Idaho and Waco, Texas.)

At the same time, around July 1996, Kagan and other administration officials learned of the leaks to the protesters and of suspicions that Dinah Bear was the leaker.  But nothing happened. "None of these officials did anything with this information," the report says. "None contacted law enforcement officials running the operation, or the Forest Service to inform them about the leaks, or to ensure the matter was investigated."

Kagan, the report says, went even further. Investigators found an email from Bear to another official of the CEQ in which Bear wrote, "Elena went out of her way to go to bat for yours truly, which was quite decent of her." When House investigators asked the White House for Kagan's notes of her discussions with Dinah Bear, the White House refused to provide them. A White House lawyer told House investigators that the documents were "subject to claims of attorney-client, work product, deliberative process, and presidential communications privilege, which are subsumed, for these purposes, under the rubric of 'executive privilege.'"

It appears that no one at the White House took the leak very seriously. A colleague of Kagan's, deputy counsel Kathleen Wallman, who also knew that Bear might be the leaker, told investigators she called the chief of staff at the Council on Environmental Quality, Shelley Fidler, and asked if it were true. "I don't recall specifically what she said, but it was words to the effect of that's ridiculous, that can't be true," Wallman told investigators. Wallman said Fidler called back a day later and said she had checked it out and it wasn't true. That was the beginning and the end of the leak investigation.

"This was a pretty serious deal," says a House source with knowledge of the issue. "A lot of people in the Clinton administration downplayed how important secrecy was to this law enforcement operation -- it was just removing some protesters. But if you talk to any law enforcement professional, they will tell you that the element of surprise is the key to the safety and security of the officers, and that the leak really did endanger the lives of law enforcement officers. It's just unconscionable that a senior White House attorney knew about this leak and knew that credible allegations had been made to the identify the leaker, and she sat on that."

The Obama White House did not immediately respond to a request for comment on Kagan's role in the Warner Creek matter. Back in 1999, when the report was written, House Democrats, then in the minority, called the investigation a partisan exercise and refused to participate.

Kagan's actions were the topic of some internal discussions in the Senate in 1999, when President Clinton nominated her for a seat on the U.S. Court of Appeals for the District of Columbia circuit. But the story attracted little public attention. Given that a presidential election was approaching and few nominations were moving, Senate Republicans put Kagan's nomination in their "ain't gonna happen" file, so an investigation into her role in the Warner Creek affair seemed unnecessary. In addition, senators are notoriously dismissive of their colleagues in the House and gave scant notice to Rep. Young's investigation. Senators simply wouldn't pay much attention to the Warner Creek issue unless another senator took it up, which never happened.

The issue also stayed largely out of sight in 2009, when Kagan was confirmed to be the nation's Solicitor General. Few Republicans even knew about the story, and besides, Kagan was up for a job in which she would serve at the pleasure of the president -- not a lifetime appointment like a seat on the Court of Appeals.

Now, Kagan is up for the biggest lifetime appointment of them all, a spot on the Supreme Court. And this time around, Warner Creek is likely to re-emerge, if only for the reason that everything in a nominee's past re-emerges in the bright light of a Supreme Court confirmation. The questions that Rep. Young asked a decade ago might finally be answered.

Byron York, the Examiner's chief political correspondent, can be contacted at byork@washingtonexaminer.com. His column appears on Tuesday and Friday, and his stories and blog posts appear on ExaminerPolitics.com.

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