Center for American Progress

Special Prosecutor Needed in Case of White House CIA Leak

Special Prosecutor Needed in Case of White House CIA Leak

Re: Need for a special prosecutor to examine leak of name of covert CIA Officer

The Director of Central Intelligence has referred to the Justice Department an apparent violation of the Agents Intelligence Identities Protection Act of 1982 (Public Law 97-200) and the Justice Department has undertaken a full criminal investigation.

Since press reports suggest that the name of an alleged agent was supplied to reporters by two Senior White House officials, the Attorney General has an obligation to appoint a special prosecutor to investigate this serious allegation. Attorney General John Ashcroft’s ties to the White House are too strong for him to conduct this investigation or to have it done by anyone under his jurisdiction. Departmental regulations provide for the appointment of a special prosecutor within the Justice Department for just such situations (28 CFR Part 600, section 600.1; 64 Fed. Reg. 37038 (July 9, 1999)).

The allegation that this name was provided by a White House official to a columnist is extremely serious for two reasons.

First, the release of the name could well place in jeopardy not only the career of the person identified but also the lives of people who came into contact with her and may have worked as agents under her direction. This danger would be greater if, as some reports have suggested, the person identified operated abroad without official cover.

Second, this leak was done with the intention of intimidating a whistle blower who had revealed information critical to the debate on Iraq and its efforts to get nuclear weapons. The leak was in retaliation for revealing that the sentence in the State of the Union speech regarding Iraqi attempts to purchase uranium from Africa was false and that the government knew it was false. The message to potential whistle blowers was that the White House will do everything that it can to destroy you and your family even if it causes great harm to national security if you make statements which challenge the White House position.

Congress devoted considerable time to the legislation making it a crime to reveal the identity of a covert agent. Hearings were held in committees in both houses over several years. Congress determined that the disclosure of names of officers could cause considerable harm to national security and that criminal penalties were appropriate. At the same time it was concerned that it not chill public debate over intelligence issues. It crafted the legislation carefully to balance these concerns.

The statute distinguishes between disclosure by government officials and disclosure by private citizens. As regard to private persons Congress limited the proscribed activity to a “pattern” of disclosures. This provision was aimed at the practice of listing names of people alleged to be CIA officers. It is not relevant to this situation.

With regard to government officials Congress made even the disclosure of a single name a crime as long as the government was seeking to keep the name secret and the person knew that he or she was disclosing the identity of a covert operative. Congress wanted to cover not only officials who had authorized access to the name but others who as a result of their access to some classified information came to learn the name of an operative. This provision, which may well be applicable to the current situation, came to be known as the “water cooler” section. It appears in the legislation as follows:

(b) Disclosure of information by persons who learn identity of covert operatives as result of having access to classified information

Whoever, as a result of having authorized access to classified information, learns the identify of a covert operative and intentionally discloses any information identifying such covert operative to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert operative’s intelligence relationship to the United States, shall be fined not more than $25,000 or imprisoned not more than five years, or both.

While it wanted to deter government officials from disclosing agents identities, Congress did not want to chill coverage of intelligence issues by the press. Thus, it took the extraordinary step of barring a conspiracy prosecution against a journalist or other private citizen who may be given the name of a covert agent by a government official and decide to publish it.

Not only do the charges clearly merit a criminal probe, the Attorney General has already demonstrated that he is ill-equipped to conduct an impartial investigation. Ashcroft once employed Karl Rove, a central figure in the emerging scandal, as a political consultant. Add to that the decision to inform the White House Counsel Alberto Gonzales that a full investigation would begin, but that he did not need to inform White House staff to preserve all materials related to the disclosure until the following morning.

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