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The Bush Administration Adopts a Worse-than-Nixonian Tactic:
The Deadly Serious Crime Of Naming CIA Operatives


Friday, Aug. 15, 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 W. Dean, a FindLaw columnist, is a former counsel to the President

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