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A tale of two (criminal) referrals

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Scooter, Jay, Ron and Dick

A tale of two (criminal) referrals

Among the greatest responsibilities our public officials bear is the use and care of our nation’s secrets.  When anyone breaks that trust — be it a CIA employee or a U.S. senator — they commit a crime.  And therein lies the tale of two referrals.

A federal agency that believes a crime has been committed within its jurisdiction can’t bring the case to court itself. That’s the job of the Department of Justice.  So when, for example, the CIA believes top-secret information has been divulged illegally, it sends a document called a "criminal referral" to Justice and asks that the incident be investigated and — if appropriate — prosecuted.

In mid-December 2004, the CIA sent a criminal referral to Justice asking that the disclosure of a top-secret satellite program by three Democratic senators: Jay Rockefeller of West Virginia, Dick Durbin of Illinois and Ron Wyden of Oregon (Rockefeller and Wyden having obtained the information as part of their job as members of the Senate Intelligence Committee). The senators, the CIA asked, should be investigated and possibly prosecuted.  As I wrote on December 16, 2004, the three had spoken publicly about what is reportedly a "black" reconnaissance satellite.  Rockefeller had made a statement about it on the senate floor, Wyden had demagogued its price to the New York Times.  Durbin had reportedly made other public statements.

"Black" programs — which are so secret, even their existence is not publicly acknowledged — are the things on which national strategies are based and billions of dollars are spent.  Merely to admit that such weapons or reconnaissance systems exist enables adversaries to change their behavior to deny us the advantage these strategic systems provide.  Now, more than two years after the CIA’s referral on the Rockefeller-Wyden-Durbin disclosure, the Justice Department is still not acting on it, and the CIA is, apparently, not at all upset about it.  Contrast this with the CIA action in the case of Vice President Cheney’s former chief of staff, I. Lewis "Scooter" Libby.

The President’s 2003 State of the Union speech contained a statement that Saddam Hussein’s regime had sought uranium from the African nation of Niger.  Former Ambassador Joe Wilson, having "investigated" the Niger uranium matter for the CIA disputed this, and launched a huge media campaign to discredit the President’s statement. That blew into a firestorm when Bob Novak’s column divulged, on July 14, 2003, that Wilson’s wife, Valerie Plame, was, "an agency operative on weapons of mass destruction."  Plame turned out to be a person whose identity was not protected by the Intelligence Identities Protection Act. Which means that she wasn’t, as so many media "experts" have proclaimed, a "covert" agent and disclosure of her identity wasn’t even a crime.

When the political firestorm began to spread, the CIA sent a criminal referral to the Justice Department asking that the disclosure of Plame’s identity be investigated and prosecuted.  According to my sources, this referral was rejected not once but twice, and only after then CIA Director George Tenet personally called the Attorney General was the investigation begun.  At that point, John Ashcroft and his deputy, James Comey, recused themselves. Comey, on December 30, 2003, appointed Patrick Fitzgerald "special counsel" to investigate the matter "independent of any supervision or control of any officer of the [Justice] Department." Why was Tenet so insistent when he must have known Plame wasn’t a covert agent?  And why did Ashcroft allow Comey to appoint Fitzgerald on terms that made Fitzgerald — for this case — the equal of the Attorney General? 

The only way we will ever know is if the criminal referral from CIA — in all its iterations — are declassified and disclosed. 

We know now that Scooter Libby wasn’t Novak’s original source: then Deputy Secretary of State Richard Armitage was.  We also know that Armitage told his boss — probably on the same date that Novak’s article appeared — that he was probably the source. Neither shared that information with the White House or — for years after — with Rove or Libby.  Let us pass, for the moment, that ultimate act of political disloyalty to the president. What is important here is how and why the CIA apparently manipulated both the intelligence community and the criminal justice system.  Joe Wilson was unqualified, by training and experience, for the Niger "mission" which has been so widely and mistakenly used to undercut the rationale for the Iraq invasion. 

Questions I have raised before still need to be answered:

  • How did Joe Wilson, contrary to decades of CIA policy, get sent to Niger without a security agreement requiring him to remain silent about what he did and what he found? Normally, anyone — within or outside the intelligence community — who undertakes such classified work or is even privy to its results has to sign a contract precluding just the sort of disclosure Wilson made.  (I signed one when I was a deputy undersecretary of defense even though I wasn’t involved in intelligence gathering or analysis but did have access to highly-classified information);
  • Why did the CIA never require a written report from Wilson?
  • Who within the CIA chose Wilson for the mission? It wasn’t his wife, who lacked the authority to do more than recommend him for it;
  • Most importantly, why did the Justice Department reject the CIA referral and then bend to Tenet’s demands?

The CIA referral to Justice was an official government communication that sought specific action.  Under the law — Title 18 US Code Section 1001 — if some or all of the statements made in that referral were made with knowledge of their falsity, the person who made the referral and those who argued in favor of it may themselves have committed a crime.  Were there false statements in the CIA’s referral?

The only way to resolve these questions is for the Justice Department and the CIA to declassify the referrals and any record of Tenet’s conversations with Ashcroft.  Were the Senate Intelligence Committee not chaired by a person who himself is the subject of another — apparently more serious — criminal referral, we might see Congressional hearings (behind closed doors) designed to get to the bottom of this odoriferous pit.  At this point, there’s little hope we’ll ever know.

There’s only one answer:  declassify and disclose. Let the sun shine on what is rotting in the dark.

Written By

Mr. Babbin is the former editor of Human Events and HumanEvents.com (Jan 2007-Mar 2010) and served as a deputy undersecretary of defense in President George H.W. Bush's administration. He is the author of "In the Words of our Enemies"(Regnery,2007) and (with Edward Timperlake) of "Showdown: Why China Wants War with the United States" (Regnery, 2006) and "Inside the Asylum: Why the UN and Old Europe are Worse than You Think" (Regnery, 2004).

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