Spooky Lawyer: Who’s the Real Disgrace?

May 22, 2015–The other day I posted a piece commenting on the hypocrisy of the senior spy agency officials complaining about the New York Times action in using the full names of certain CIA officials. They did this in a letter to the editor of the Times. I noted how the law they invoked to justify themselves does not actually cover what they claim, and so on (see “Crocodile Tears: The Spooks Doth Protest too Much,” May 12, 2015). All of that was a standard ploy to intimidate–claim legal cover, assert that the alleged offense is life-threatening, and encourage the public to dismiss the opponent, in effect to kill the messenger.

The officials who cried and gnashed their teeth were, all of them, former top people at the CIA. As recounted in the post, more than a few had crossed the line of controversy themselves. Their motives in trying to knock down the Times (or anyone else who might object to high-handed CIA actions) were/are entirely transparent. But so far as the Intelligence Identities Protection Act is concerned, none of the spooks was a lawyer, so they have at least the excuse of not knowing any better.

Not so for Robert S. Litt, the general counsel for the Director of National Intelligence (DNI). It is his business to know the law. But Litt has yet to rise above the gunslingers who partner at big law firms, among whom he once walked. “The law” for them is what interpretation they can get away with at a given moment. The niceties of the Intelligence Identity Protection Act ignored, Mr. Litt denounced the Times in an interview published on April 27, saying “I think the New York Times disgraced itself over the weekend,” by publishing the names, continuing “these are people whose identities are protected by statute.”

I could not let this pass without comment. Robert Litt is the same man who conspired with the DNI, General James Clapper, to provide a fraudulent explanation for perjured testimony DNI Clapper gave Congress when directly asked if the National Security Agency is spying on hundreds of millions of Americans. The country now knows in horrific detail not only that that was/is true, but that it had been going on for years. General Clapper denied it. Fearful leader that he is, Clapper also rejected an opportunity to correct his testimony. Mr. Litt helped Fearful Leader contrive the excuse that he had been thinking about something different when asked the direct question, so his sworn testimony had therefore not been a lie.

I dissected the tortured logic of this flimsy assertion in a pair of columns early last year (both now form part of my longform “The NSA Watch,” which is available as a product on the Downloadable section of this website). Suffice it to say that both Mr. Litt and General Clapper–when preparing for Clapper’s testimony, when delivering it, and when presented the opportunity to correct the record to avoid misleading overseers and the public–refused to do so, and contrived to lie instead.

That is a “disgrace.” We are talking about government officials sworn to uphold the Constitution collaborating in perjuring testimony under oath, to mislead a duly authorized legislative body directly responsible for overseeing their actions.  Robert Litt has no business talking about anyone’s disgrace.

The Times defended itself well enough. The newspaper’s executive editor, Dean Baquet gave an interview to the same legal blog on April 29 arguing that the paper understood the CIA’s drone war as essentially a military operation and therefore felt unable to treat officials conducting it as purely intelligence operatives. In particular when, it turned out, the top guy behind the drones was a prime architect of the CIA torture program.

When do you stop going along, and begin to conduct real oversight? Conversely, when does appropriate security cross the line into coverup? Baquet was asked about Robert Litt’s assertion (repeated in the letter from top spooks to the Times) that by revealing names the newspaper was putting lives in danger. Baquet’s response: “I wish the CIA did not say that about everybody and everything.”

Just so. When top covert operator Jose Rodriguez conspired to obstruct justice, causing the destruction of videotapes that were evidence of CIA officers conducting torture, the rationale was that the tapes endangered lives.

The original rationale for the Intelligence Identities Protection Act in 1982 was that protecting names would save lives.

Let’s be very clear here: in all the recorded history of the CIA–now nearing seven decades–only one agency officer is known to have been marked for killing and then murdered. That man, Richard Welch, chief of station in Athens, had had his name in the press but had made rookie security mistakes the likes of living in a house known as the CIA’s chief residence (it was even on city tours) and not varying his route to work. Welch had been warned to take precautions and had not done so. His murderers, from a Greek revolutionary group, were later captured and revealed they had known all about the CIA man, but without ever seeing or even being aware of, the mentions of Welch in the press.

The CIA, terrified that disaffected agency officer Philip Agee was going around making a practice of blowing the covers of its people, made Richard Welch the poster boy for its campaign to obtain passage of the Intelligence Identities Protection Act.

Since the passage of that law there is no evidence that any CIA officer has been targeted because her/his name was revealed. Agency officers have died in combat, in plane crashes, in a random attack on the agency’s front gate, by suicide. I dare say–the evidence here, of course, would be secret–that more CIA officers have perished in domestic disputes than have been killed because their names were revealed.

Meanwhile the CIA uses the Act to hide the names of senior officials engaged in official business, acting in their official capacities, from public scrutiny.

The New York Times and its reporters are not sworn to uphold CIA regulations. Agency officers at a certain level of the organization should be known individuals. Equally to the point, the Identities Protection Act stipulates in defining the crime that the defendant  have engaged in a pattern of revelations of names (a la Agee), which the newspaper certainly has not done.

What is truly disgraceful is the CIA’s cynical scaremongering and its efforts to intimidate critics.

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