The Bush Administration Adopts a Worse-than-Nixonian Tactic:
               The Deadly Serious Crime Of Naming CIA Operatives
                               By JOHN W. DEAN
                            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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