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The
Bush Administration Adopts a Worse-than-Nixonian Tactic:
The
Deadly Serious Crime Of Naming CIA Operatives
by
John W. Dean
Dissident Voice
August
19, 2003
On
July 14, in his syndicated column, Chicago Sun-Times journalist Robert Novak
reported that Valerie Plame Wilson -- the wife of former ambassador Joseph C.
Wilson IV, and mother of three-year-old twins -- was a covert CIA agent. (She
had been known to her friends as an "energy analyst at a private
firm.")
Why
was Novak able to learn this highly secret information? It turns out that he
didn't have to dig for it. Rather, he has said, the "two senior
Administration officials" he had cited as sources sought him out, eager to
let him know. And in journalism, that phrase is a term of art reserved for a
vice president, cabinet officers, and top White House officials.
On
July 17, Time magazine published the same story, attributing it to
"government officials." And on July 22, Newsday's Washington Bureau
confirmed "that Valerie Plame ... works at the agency [CIA] on weapons of
mass destruction issues in an undercover capacity." More specifically,
according to a "senior intelligence official," Newsday reported, she
worked in the "Directorate of Operations [as an] undercover officer."
In
other words, Wilson is/was a spy involved in the clandestine collection of
foreign intelligence, covert operations and espionage. She is/was part of a
elite corps, the best and brightest, and among those willing to take great risk
for their country. Now she has herself been placed at great - and needless -
risk.
Why
is the Administration so avidly leaking this information? The answer is clear.
Former ambassador Wilson is famous, lately, for telling the truth about the
Bush Administration's bogus claim that Niger uranium had gone to Saddam
Hussein. And the Bush Administration is punishing Wilson by targeting his wife.
It is also sending a message to others who might dare to defy it, and reveal
the truth.
No
doubt the CIA, and Mrs. Wilson, have many years, and much effort, invested in
her career and skills. Her future, if not her safety, are now in jeopardy.
After
reading Novak's column, The Nation's Washington Editor, David Corn, asked,
"Did senior Bush officials blow the cover of a US intelligence officer
working covertly in a field of vital importance to national security--and break
the law--in order to strike at a Bush administration critic and intimidate
others?"
The
answer is plainly yes. Now the question is, will they get away with it?
Bits
and pieces of information have emerged, but the story is far from complete.
Nonetheless, what has surfaced is repulsive. If I thought I had seen dirty political
tricks as nasty and vile as they could get at the Nixon White House, I was
wrong. The American Prospect's observation that "we are very much into
Nixon territory here" with this story is an understatement.
Indeed,
this is arguably worse. Nixon never set up a hit on one of his enemies' wives.
Leaking the Name of a CIA Agent Is a Crime
On
July 22, Ambassador Wilson appeared on the Today show. Katie Couric asked him
about his wife: "How damaging would this be to your wife's work?"
Wilson
- who, not surprisingly, has refused to confirm or deny that his wife was a CIA
operative - answered Katie "hypothetically." He explained, "it
would be damaging not just to her career, since she's been married to me, but
since they mentioned her by her maiden name, to her entire career. So it would
be her entire network that she may have established, any operations, any
programs or projects she was working on. It's a--it's a breach of national
security. My understanding is it may, in fact, be a violation of American
law."
And,
indeed, it is.
The
Espionage Act of 1917 and the Intelligence Identities and Protection Act of
1982 may both apply. Given the scant facts, it is difficult to know which might
be more applicable. But as Senator Schumer (D.NY) said, in calling for an FBI
investigation, if the reported facts are true, there has been a crime. The only
question is: Whodunit?
The Espionage Act of 1917
The
Reagan Administration effectively used the Espionage Act of 1917 to prosecute a
leak - to the horror of the news media. It was a case that was instituted to
make a point, and establish the law, and it did just that in spades.
In
July 1984, Samuel Morrison - the grandson of the eminent naval historian with
the same name - leaked three classified photos to Jane's Defense Weekly. The
photos were of the Soviet Union's first nuclear-powered aircraft carrier, which
had been taken by a U.S. spy satellite.
Although
the photos compromised no national security secrets, and were not given to
enemy agents, the Reagan Administration prosecuted the leak. That raised the
question: Must the leaker have an evil purpose to be prosecuted?
The
Administration argued that the answer was no. As with Britain's Official
Secrets Acts, the leak of classified material alone was enough to trigger
imprisonment for up to ten years and fines. And the United States Court of
Appeals for the Fourth Circuit agreed. It held that the such a leak might be
prompted by "the most laudable motives, or any motive at all," and it
would still be a crime. As a result, Morrison went to jail.
The
Espionage Act, though thrice amended since then, continues to criminalize leaks
of classified information, regardless of the reason for the leak. Accordingly,
the "two senior administration officials" who leaked the classified
information of Mrs. Wilson's work at the CIA to Robert Novak (and, it seems,
others) have committed a federal crime.
The Intelligence Identities and Protection Act
Another
applicable criminal statute is the Intelligence Identities Act, enacted in
1982. The law has been employed in the past. For instance, a low-level CIA
clerk was convicted for sharing the identify of CIA employees with her
boyfriend, when she was stationed in Ghana. She pled guilty and received a
two-year jail sentence. (Other have also been charged with violations, but have
pleaded to unrelated counts of the indictment.)
The
Act reaches outsiders who engage in "a pattern of activities"
intended to reveal the identities of covert operatives (assuming such identities
are not public information, which is virtually always the case).
But
so far, there is no evidence that any journalist has engaged in such a pattern.
Accepting Administration leaks - even repeatedly - should not count as a
violation, for First Amendment reasons.
The
Act primarily reaches insiders with classified intelligence, those privy to the
identity of covert agents. It addresses two kinds of insiders.
First,
there are those with direct access to the classified information about the
"covert agents." who leak it. These insiders - including persons in
the CIA - may serve up to ten years in jail for leaking this information.
Second,
there are those who are authorized to have classified information and learn it,
and then leak it. These insiders - including persons in, say, the White House
or Defense Department - can be sentenced to up to five years in jail for such
leaks.
The
statute also has additional requirements before the leak of the identity of a
"covert agent" is deemed criminal. But it appears they are all
satisfied here.
First,
the leak must be to a person "not authorized to receive classified
information." Any journalist - including Novak and Time - plainly fits.
Second,
the insider must know that the information being disclosed identifies a
"covert agent." In this case, that's obvious, since Novak was told
this fact.
Third,
the insider must know that the U.S. government is "taking affirmative
measures to conceal such covert agent's intelligence relationship to the United
States." For persons with Top Secret security clearances, that's a
no-brainer: They have been briefed, and have signed pledges of secrecy, and it
is widely known by senior officials that the CIA goes to great effort to keep
the names of its agents secret.
A
final requirement relates to the "covert agent" herself. She must
either be serving outside the United States, or have served outside the United
States in the last five years. It seems very likely that Mrs. Wilson fulfills
the latter condition - but the specific facts on this point have not yet been
reported.
How the Law Protects Covert Agents' Identities
What
is not in doubt, is that Mrs. Wilson's identity was classified, and no one in
the government had the right to reveal it.
Virtually
all the names of covert agents in the CIA are classified, and the CIA goes to
some effort to keep them classified. They refuse all Freedom of Information Act
requests, they refuse (and courts uphold) to provide such information in
discovery connected to lawsuits.
Broadly
speaking, covert agents (and their informants) fall under the State Secrets
privilege. A federal statute requires that "the Director of Central
Intelligence shall be responsible for protecting intelligence sources and
methods from unauthorized disclosure." It is not, in other words, an
option for the CIA to decide to reveal an agent's activities.
And
of course, there's are many good reasons for this - relating not only to the
agent, but also to national security. As CIA Director Turner explained in a lawsuit
in 1982, shortly after the Intelligence Identities Act became law, "In the
case of persons acting in the employ of CIA, once their identity is discerned
further damage will likely result from the exposure of other intelligence
collection efforts for which they were used."
The
White House's Unusual Stonewalling About an Obvious Leak
In
the past, Bush and Cheney have gone ballistic when national security
information leaked. But this leak - though it came from "two senior
administration officials" - has been different. And that, in itself,
speaks volumes.
On
July 22, White House press secretary Scott McClellan was asked about the Novak
column. Offering only a murky, non-answer, he claimed that neither "this
President or this White House operates" in such a fashion. He added,
"there is absolutely no information that has come to my attention or that
I have seen that suggests that there is any truth to that suggestion. And,
certainly, no one in this White House would have given authority to take such a
step."
So
was McClellan saying that Novak was lying - and his sources were not, in fact,
"two senior administration officials"? McClellan dodged, kept
repeating his mantra, and refused to respond.
Later,
McClellan was asked, "Would the President support an investigation into
the blowing of the cover on an undercover CIA operative?" Again, he
refused to acknowledge "that there might be some truth to the matter
you're bringing up." When pressed further, he said he would have to look
into "whether or not that characterization is accurate when you're talking
about someone's cover."
McClellan's
statement that he would have to look into the matter was disingenuous at best.
This ten-day old column by Novak had not escaped the attention of the White
House. Indeed, when the question was first raised, McClellan immediately
responded, "Thank you for bringing that up."
As
David Corn has pointed out, what McClellan did not say, is even more telling
than what he said. He did not say he was trying to get to the bottom of the
story and determine if it had any basis in fact. He did not say the president
would not tolerate such activities, and was demanding to know what had
happened.
Indeed,
as Corn points out, McClellan's remarks "hardly covered a message from
Bush to his underlings: don't you dare pull crap like this." Indeed, they
could even be seen as sending a message that such crimes will be overlooked.
Frankly,
I am astounded that the President of the United States - whose father was once
Director of the CIA - did not see fit to have his Press Secretary address this
story with hard facts. Nor has he apparently called for an investigation - or
even given Ambassador and Mrs. Wilson a Secret Service detail, to let the world
know they will be protected.
This
is the most vicious leak I have seen in over 40 years of government-watching.
Failure to act to address it will reek of a cover-up or, at minimum, approval
of the leak's occurrence - and an invitation to similar revenge upon
Administration critics.
Congressional
Calls For Investigation Should Be Heeded
Senator
Dick Durbin (D - IL) was the first to react. On July 22, he delivered a lengthy
speech about how the Bush Administration was using friendly reporters to attack
its enemies. He knew this well, because he was one of those being so attacked.
"Sadly,
what we have here," Durbin told his colleagues, "is a continuing
pattern by this White House. If any Member of this Senate - Democrat or
Republican - takes to the floor, questions this White House policy, raises any
questions about the gathering of intelligence information, or the use of it, be
prepared for the worst. This White House is going to turn on you and attack
you."
After
Senator Durbin set forth the evidence that showed the charges of the White House
against him were false, he turned to the attacks on Ambassador and Mrs. Wilson.
He announced that he was asking the chairman and ranking member of the Senate
Intelligence Committee to investigate this "extremely serious
matter."
"In
[the Administration's] effort to seek political revenge against Ambassador
Wilson," Durbin said, "they are now attacking him and his wife, and
doing it in a fashion that is not only unacceptable, it may be criminal. And
that, frankly, is as serious as it gets in this town."
The
House Intelligence Committee is also going to investigate the Wilson leak.
"What happened is very dangerous to a person who may be a CIA
operative," Congressman Alcee Hastings (D - FL), a member of the
Committee, said. And the committee's chairman, Porter Gross (R- FL), a former
CIA agent himself, said an investigation "could be part of a wider"
look that his committee is taking at WMD issues.
In
a July 24 letter to FBI Director William Mueller, Senator Charles Schumer (D
-NY) demanded a criminal investigation of the leak. Schumer's letter stated,
"If the facts that have been reported publicly are true, it is clear that
a crime was committed. The only questions remaining to be answered are who
committed the crime and why?"
The
FBI, too, has confirmed that they are undertaking an investigation.
But
no one should hold their breath. So far, Congress has treated the Bush
Administration with kid gloves. Absent an active investigation by a grand jury,
under the direction of a U.S. Attorney or special prosecutor, an FBI
investigation is not likely to accomplish anything. After all, the FBI does not
have power to compel anyone to talk. And unless the President himself demands a
full investigation, the Department of Justice is not going to do anything - unless
the Congress uncovers information that embarrasses them into taking action.
While
this case is a travesty, it won't be the first one that this administration has
managed to get away with. Given the new the nadir of investigative journalism,
this administration has been emboldened. And why not? Lately, the mainstream
media has seemed more interested in stockholders than readers. If Congress
won't meaningfully investigate these crimes -- and, indeed, even if it will --
it is the press's duty to do so. Let us hope it fulfills that duty. But I am
not holding my breath about that, either.
John Dean is the former
White House counsel for President Richard Nixon and author of The Rehnquist
Choice: The Untold Story of the Nixon Appointment that Redefined the Supreme
Court. This commentary first appeared on FindLaw.com (www.findlaw.com).
Other Articles by John Dean
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