Mimsy Were the Borogoves

Editorials: Where I rant to the wall about politics. And sometimes the wall rants back.

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Who controls discussion of CIA activities?

Jerry Stratton, October 29, 2005

Imagine this scenario:

An independent investigator goes on a fact-finding mission in the run-up to a controversial war. He comes back saying that a country the White House wants to go to war with has been trying to acquire nuclear weapons. The White House embraces this investigator and mentions his findings at every opportunity.

Meanwhile, an intrepid New York Times reporter does a little investigating and discovers that what this investigator has been saying, and what actually went into the final report on his mission, are very different. Further, in the course of that investigation the reporter discovers that the independent investigator’s wife appears to work at CIA headquarters. Further digging discovers that the wife is a domestic covert agent and that she recommended her husband for this “independent” mission.

The Times reports this story, knowing that the wife was classified by the CIA as covert. The CIA says that their reporter violated the law and should not have been able to say anything that might have made their covert agent’s identity public.

What happens next? Should that reporter be brought before a grand jury? Go to jail? There is nothing in the law or the legal situation surrounding the Plame case that limits this sort of intimidation to whether or not the violator is a Republican or a reporter. That’s the interesting part of this case to me: watching the CIA’s power grab, against a generally sympathetic administration, for more secrecy. It matters less to me whether someone committed perjury and more whether this process will, in the future, become a means of muting criticism of domestic intelligence operations.

The Intelligence Identities Protection Act was carefully constructed to only punish the revelation of covert, overseas agents. When President Reagan signed the act into law, he said:

The Congress has carefully drafted this bill so that it focuses only on those who would transgress the bounds of decency; not those who would exercise their legitimate right of dissent.

We need to be careful that we are not expanding the reach of this law by applying it--even unsuccessfully--in cases where it does not belong. The CIA would love to ensure that anyone outing any employee be punished, regardless of whether that employee is a covert agent as defined by the Intelligence Identities Protection Act. That appears to be what’s going on here. Was Plame a covert agent under that law? Fitzgerald’s indictment very carefully avoids addressing this question.

Valerie Wilson was employed by the CIA, and her employment status was classified. Prior to July 14, 2003, Valerie Wilson’s affiliation with the CIA was not common knowledge outside the intelligence community.

In other words, the CIA says she was undercover, and the CIA would prefer that we not talk about what the CIA is doing. Remember, again, as far as this legal proceeding is concerned it makes no difference whether the accused is a government official or a reporter. We already know the CIA wants us to consider her as undercover according to the law. The question is, are they right?

The CIA has a secret budget. They CIA would also like all of their people and all of their actions to be secret. They would especially prefer that when they do something stupid or corrupt, that it be against the law to say so along with anything that could remotely be considered proof. The CIA is supposed to have very limited powers within the United States. They have too much power--and too much legally enforced secrecy--to be trusted with operations that are easily used against American citizens.

Fortunately, it is not (yet) against the law to talk about the CIA. It is currently against the law to talk about the CIA’s covert activity along with any meaningful proof, but covert activity still has a very restrictive meaning and the CIA can't just say “hey, we’re all undercover, now stop talking about us or you’ll go to jail”.

They might, now, be able to say “stop talking about us, or you and all of your acquaintances might have to go before a grand jury”.

One would think that people critical of the current administration would also be critical of overreaching intelligence agencies. But here are some of the things I’ve been reading from people who would otherwise (if it were used in support of administration policies) be extremely critical of the CIA:

The CIA is the organization that pushed the investigation, meaning that they feel she met the cirteria.

We don't need a law to tell us that unmasking a CIA agent, particularly during wartime, is treasonous. Every patriotic American--liberal, conservative, or otherwise--knows that.

Let’s face it, [the CIA knows] more about the subject than you or I do.

How many times do we have to go over this? The CIA obviously thinks a crime may have been committed otherwise the investigation would’ve never began.

Can we please stop this whole, “She really wasn’t undercover” thing. The CIA says she was undercover.

The CIA determines who is covert. Not the White House political staff, not the Press.

And presumably not the Congress, either, since they wrote the law that’s being ignored. This controversy is beginning to look like the whole “No, I don’t want a powerful centralized intelligence czar” thing during the elections. Bush and the Republicans caved pretty quickly on that one once the Democrats started clamoring for it. If, on the other side of this grand jury and trial we end up with tighter restrictions against talking about domestic employees of the CIA, it doesn’t matter whether you support or oppose the current administration. We all lose. The Bush administration will be gone in a few years. The CIA will be here for a lot longer.

Even if the only punishment for talking about the CIA is being hauled before a grand jury and having your associates all hauled before a grand jury, that’s one hell of a damper on critical discussion of the CIA. Once again, I think that people’s unreasoning hatred of the current administration is clouding their judgment, to the detriment of our future as an open democratic society.

July 4, 2007: You can trust us, we’re the CIA!

The Libby commutation debate appears to be separating law-and-order Republicans from civil liberties Republicans. You can see an example in this conversation on the Volokh Conspiracy.

The basic disputes between the two sides can be seen in their reaction to these statements on the case:

  • The CIA said she was covert. They are the final authority.
  • The prosecutor said that he saw secret documents that said she was covert. He can be trusted even though he will not show us that evidence.
  • She must have been covered by the Intelligence Identities Protection Act even if she only went overseas for brief periods of a few days at a time. The Act should be interpreted as broadly as possible to cover as many CIA employees as possible.

The first two are difficult to answer. The CIA might be telling the truth; they might not be. The prosecutor might be telling the truth; he might not be. In this debate I’ve been surprised that people on the left believe we must implicitly trust anything that prosecutors and the CIA say, even without evidence. It isn’t surprising to hear it from law-and-order folks like Orin and others, however.

The third is interesting, because it is one of the things that the IIPA was crafted to avoid. This interpretation of “served outside the United States” basically makes the entire CIA off-limits for discussion and whistle-blowing. If we accept week-end travel as fitting the definition of serving outside the United States, the CIA can block discussion of any CIA activity by sending employees involved in that activity to Canada or Mexico on an “undercover” mission for a weekend.

October 31, 2005: What next for the CIA?

People are beginning to talk about what the CIA had in mind when they sent Wilson, sans confidentiality agreement, to Niger. I’m adding this note to keep track of some of this commentary and add them to the end of my CIA Victory article.

  1. <- No and Yes in Iraq
  2. Proposition 75 ->