Unfortunately, the Judiciary Committee today approved a resolution authorizing the Chairman to issue a subpoena to the Secretary of Defense for documents related to the investigation of a man named Peter Lee, who has been prosecuted, convicted and is still under probation for a federal offense relating to the disclosure of classified information. The justification offered for this subpoena was that the Defense Department has failed to provide three specific documents to Senator Specter in connection with his investigation of the Lee case and has been slow overall to respond to requests.

This subpoena should not have been issued. It is unnecessary and judicially unenforceable.

Since Senator Specter began the wide-ranging oversight investigations last fall under the auspices of the Subcommittee on Administrative Oversight and the Courts, the Defense Department has complied with numerous subcommittee requests and provided over 15,000 pages of documents relating to Waco as well over two hundred relating to the Peter Lee case. When disputes over documents relating to Peter Lee arose recently, the Secretary of Defense sent a letter dated February 8, 2000 giving assurances that the Defense Department would cooperate with subcommittee requests. Since then, additional documents have been provided and Defense Department and Navy officials have participated in on-the-record debriefings. Although I understand complaints that certain document productions have taken longer than desired, it is my impression that the Defense Department has acted in good faith to comply with requests.

None of the disputes over the three documents at issue justified the Committee’s approval of the subpoena, which is overbroad and may be read to require much more than the production of the three documents. As for these documents, one, a Naval Criminal Investigative Service file, was provided today. Another – notes from a 1997 meeting – recently discovered in the personal possession of a retired Navy captain, is being reviewed for production and will be provided imminently. The third is a classified joint United States/Great Britain study written by a British author that relates in part to the security of British submarines. The British Embassy has objected to the release of the study and the Defense Department is currently working responsibly to resolve Britain’s concerns in a way that would accommodate the expressed interest of the subcommittee in reviewing it. Given that one of the documents sought has already been provided, another is to be provided shortly and the third is the subject of expressed concerns by another nation, this subpoena should not have been issued.

I hope that the Committee’s approval of this subpoena resolution is an aberration. While previous subpoena resolutions approved by the Committee in connection with these oversight investigations required consultation with the Ranking Member, this one did not. In fact, no consultation took place. If it had, I would have raised the concerns expressed here.

The issuance of this subpoena was irresponsible and followed from a flawed procedural process. It is unenforceable in any event, except through a contempt trial on the Senate floor – a spectacle I am sure we would all choose not to endure again in this Congress.