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Intelligence Officials’ Unpersuasive Response To the NYT’s Identification of Three Undercover CIA Officers

Jack Goldsmith
Thursday, May 14, 2015, 11:02 AM
The New York Times identified three undercover senior CIA officials in an April 25 story by Mark Mazzetti and Matt Apuzzo about oversight of the CIA’s lethal drone operations.

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The New York Times identified three undercover senior CIA officials in an April 25 story by Mark Mazzetti and Matt Apuzzo about oversight of the CIA’s lethal drone operations. (Background here and here.)  ODNI General Counsel Bob Litt and twenty former CIA officials, all of whom I admire, argue that the Times was wrong to do so. Their arguments taken together are that (1) the officers identities are “protected by statute,” (2) identifying the officers exposes them, their families, and their contacts to risk of violence, and (3) outing the officers was gratuitous and served no news or legitimate accountability function. I have thought a lot about these arguments and am unpersuaded by them. In the long post below, I address each argument in turn. Law.  The former officials write that “Congress overwhelmingly enacted the Intelligence Identities Protection Act of 1982 precisely to protect the dedicated men and women whose lives would be at risk if their names became widely publicized.”  But as Litt made pretty clear at a conference a few weeks ago, the Times did not violate the Intelligence Identities Protection Act by publishing the officers’ names.  The Act criminalizes the disclosure of the identity of a “covert agent” by a person having “authorized access to classified information.”  It also criminalizes disclosure of the identities of covert agents by others, but only if the disclosure comes “in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States.” Neither provision prohibits what the Times did here. The Times did not have authorized access to classified information. And its disclosure of the identities was incident to reporting and was not part of “a pattern of activities intended to identify and expose covert agents.”  Congress drew this latter distinction in order to protect (in the words of the House Report) “the First Amendment rights of those who disclose the identities of agents as an integral part of another enterprise such as news media reporting of intelligence failures or abuses.” Having said all this, Litt was quite right at the conference to emphasize that the officers’ identities are “protected by statute” in the sense that a different statute—Sections 6 and 23 of the CIA Act—directs and authorizes the CIA Director to protect from unauthorized disclosure the identities of undercover intelligence officers. But when a later Congress criminalized such disclosures in the Intelligence Identities Protection Act, it created a loophole, inspired by the First Amendment, for what the Times did here.* Risk of harm.   The twenty former CIA officials stated that covert agents’ “lives would at risk if their names became widely publicized.” They added:  “any name published in The Times would reside forever on the Internet, searchable by any terrorist with a laptop. It is true that certain foreign governments may know their names, but that is altogether different from making the name accessible to ISIS, Al Qaeda and every other murderer on the planet.”  Litt made a similar point. “[T]he problem is not whether foreign governments know” the officers’ identities, he said.  “The problem is whether terrorists and lone wolves who are being solicited by groups like ISIS to make individual attacks in the United States, whether they knew who these people were.  … [I]t’s not only them that’s at risk. It’s their families, and their contacts when they served in covert capacities overseas who are now going to be put at risk.” In an interview with me, NYT Executive Editor Dean Baquet responded that because the drone operation represents a “different role” for CIA that amounts to a “largely a military operation, … I don’t think we can completely treat the people who run it purely as intelligence operatives.” He added: “It’s not like you’re exposing a wide undercover operation in Afghanistan. You’re writing about something that is generally done by the military, which I think means that the cloak of secrecy that usually we all allow for the CIA is a little more complicated.” Baquet then turned to the question of possible harms of publishing the names:
These guys may technically be undercover. But even the CIA admitted when they called – and this was a big factor in the decision – that they are widely known, and they were known to the governments where they were stationed. The CIA’s pitch was not that these guys are secret or that people don’t know about them. The CIA’s pitch to me was, “Look, its one thing to be widely known, and to be known to governments and to be on web sites; but when they appear on the front page of the New York Times, that has a larger meaning.” So they were known anyway.
Baquet also noted:
[W]e can mention the name of a guy who runs a big military program like GTMO, we can mention the name of a high-ranking military official who has the same type of authority as this [CIA] guy, we can mention the guy who runs the military side of the drone program, we can mention the counsel to the president on national security issues, or we can mention someone who runs a very significant military program, but now we cannot mention the person who runs the exact same program in the CIA?
Baquet is saying—correctly, in my view—that arguments about the risks of exposure prove too much. The danger of making names accessible to “terrorists and lone wolves” or to “ISIS, Al Qaeda and every other murderer on the planet” applies to scores of officials in DOD, FBI, DOJ, and other agencies who are or were prominently involved in counterterrorism operations.  And yet: William McRaven and John Pistole, both of whom had hugely important counterterrorism roles, are walking around campus as university presidents. The SEALS who killed bin Laden are giving public speeches. The names of many DOJ officials can be found on now-public legal documents that support counterterrorism operations. And according to Mark Mazzetti, most heads of the Counterterrorism Center and the National Clandestine Service (the jobs occupied by the three named officers) have been overt officers. This all makes one wonder why the threat of harm from identifying the three CIA officers is so different. My wonder grows when I learn that the CIA has frequently and increasingly “rolled back” or lifted cover of covert agents since 9/11.  It has done so for many reasons.  One reason is to allow retired covert officers to take better advantage of the high salaries in the burgeoning private contractor community. Several formerly undercover CIA counterterrorism officials now work openly in the private sector. Another reason is to facilitate the writing of books by retired covert officers, including those involved in counterterrorism. This practice has increased a lot in recent years.  I have over half a dozen such books on my shelf—there are surely more.  A related reason is that rolling back cover allows officers to present the Agency’s point of view or engage in public debate.  Cofer Black, who was undercover while Director of the CIA's Counterterrorist Center from 1999 until May of 2002 (and long before), famously lifted his cover for his 9/11 Commission testimony.   (He also wrote a book about his undercover life.) Former CIA officer Will Hurd ran “mostly on his career as an undercover CIA operative” to win a House seat last year. All of which raises the question: Why doesn’t the lifting of cover in these contexts threaten harm to the formerly covert officers, their families, and their contacts?   I understand that rolling back cover does not threaten equal harm in every situation, and that sometimes (but less often than in the past) the CIA denies requests to roll back cover.  But several of the officers whose cover has been lifted in recent years (such as Cofer Black, Henry Crumpton, Dewey Claridge, Jose Rodriguez, and others) were heavily involved in operations against al Qaeda and other terrorists.  Why doesn’t the generalized harm alleged by Litt and the 20 former officials apply equally to the seemingly similarly situated officials whose cover the CIA decided to lift? A partial response might be that the former CIA officers listed above assumed the risk of lifting cover voluntarily (and with CIA approval), while the three current officials that the NYT outed did not. This is a fair (though limited) point. Most of the officials in other agencies whose names are regularly disclosed, and who have played prominent roles in counterterrorism operations, never get the option of going undercover. And with regard to former contacts, it is not obvious why they are more threatened by the outed covert officials than by the CIA-approved lifting of cover for Black, Rodriguez, and others. Pulling all these points together, I see the issue of harm this way.  The CIA has since 9/11 often rolled back cover, even for officers prominently involved in counterterrorism, and usually in contexts that helped show the Agency in a favorable light.  At the same time, it has changed from an organization with an intelligence focus into one that also runs extensive and very consequential military-like counterterrorism operations of the type that (as Baquet noted) the media traditionally covers more fully than it does pure intelligence operations.  And the CIA declines to lift cover for the current senior counterterrorism officials running these lethal military operations even though such jobs often involved lifting cover in the past and even though the names of officials with similar jobs in other agencies are regularly disclosed.  In this combination of circumstances, and when the CIA is unable to keep the officers’ identities secret, I think the Agency has the burden to explain concretely to the media why identifying the covert officers will cause harms that did not get in the way of lifting cover in similar contexts.  According to Baquet, the CIA did not make any such showing in its conversations with him.  Neither did Litt or the twenty former officials in their public statements. The former CIA officials also argue that identifying the three officers was harmful because “we still need a small cadre of professionals who, when called upon, can operate in secret to protect the country.” I doubt that this characterization applies to the three outed senior officials, who are unlikely to be called upon once again to work undercover overseas. But to the extent that the Times story does prevent the Agency from using one or more of these individuals for future undercover operations overseas, that seems like a relatively modest cost that the Agency should expect to absorb when it assigns covert agents to senior jobs at Langley. Mazzetti says on Lawfare that “many, many former CIA officers … believe it is wrong for the senior most CIA officials to remain undercover,” and that “when they got to the 7th floor, it used to be a requirement that they had their cover lifted because they had become senior representatives of the Agency.” At a minimum, the CIA must know that it jeopardizes cover when it places covert agents in senior counterterrorism jobs. Despite all of this, Litt and the former officials might still be right about the threatened harm from the Times’ publication even if they cannot explain why in public and even if the CIA did not explain itself well to Baquet. I am not saying that the Times is in a better position than the CIA to judge when cover should be lifted—it is not. But it is also true that the CIA has the responsibility to preserve cover (“The responsibility must be where the power is”), that it knowingly increased the chances of cover being blown when it elevated these officers, that it has no legal claim to the last word on cover when the media discovers an identity in the course of reporting, that it often exaggerates the harm of publishing secrets, and that to many on the outside its decisions whether to lift cover sometimes appear to be driven by a desire to show itself in a favorable light. Gratuitousness. Even if Litt and the former officials are wrong about the harms of publication, it doesn’t follow that the Times should publish the names. As with any government officials—especially career employees working counterterrorism operations—the Times should have a good reason to identify them. The press is often aware of the identity of “line” or mid-level employees who play important roles, and yet it typically only names very senior policymakers or senior lawyers involved in a decision. The former officials were making something like this point when they acknowledged said that the media “should question policy makers, including senior politically appointed leaders of the intelligence community,” about counterterrorism programs, but added that “nothing is gained by ‘outing’ career operations officers, who carry out such policies.” They added that the covert officers “do not escape accountability” because their actions “are carefully reviewed by the C.I.A.’s general counsel, the inspector general, White House officials, congressional overseers and Justice Department attorneys.” Litt similarly said that the “specific names of the individuals [were] completely gratuitous and unnecessary to any argument that the Times was making in that story.”  He also suggested that the three officers do not have policymaking jobs, but rather “are simply implementing … policy” made by more senior officials. For me this is the hardest issue raised by the Times’ publication of the officers’ identity. The Mazzetti/Apuzzo story offered this justification for identifying the covert officers:  “The New York Times is publishing them because they have leadership roles in one of the government’s most significant paramilitary programs and their roles are known to foreign governments and many others.”  I pressed Baquet to say more by asking why it was important to name the names and what accountability function it served. He emphasized the size and importance of the military operations supervised by the named officers. And he added:
This particular story was about accountability. … So now you’re writing a story about accountability for a program that has just had its most high-profile mistake [the inadvertent killing of hostahes], and you’re asking the question, “How accountable is the program?”  I think at that point you’ve got to write about the guy who runs it, especially because he’s the guy who helped craft another controversial program [the CIA’s detention and interrogation program]. That’s not a knock on him. But I think if you’re going to write about accountability, you have to include the name of the guy. Because otherwise all you’re going to say is that the same guys who were the architects of the torture program, some of then were also the architects of the drone program, and some of the same questions that were raised by the torture program – about the way it was administered and the way it was policed by Congress – have also been raised by the handling of the drone program. And I think once you go down that route, that far, you’ve got to describe the guy.
This is a partial but not a full answer. There are at least three further issues. First, is government oversight the exclusive mechanism of accountability in this context? The letter by the former officials implies that it is, and many officials think that as well. But this is not an accurate description of our system of intelligence accountability. I don’t share Mazzetti’s and Apuzzo’s skeptical view of intelligence community accountability—a view they revealed when their story editorialized about the “veneer of congressional oversight.” The U.S. government’s accountability system is not perfect, but it is (as I argued at length in Power and Constraint) robust and redundant and demanding—by a large margin the most serious intelligence oversight and accountability system in the world. That said, nothing in U.S. law or practice suggests that government oversight is or should be the exclusive method of accountability for the intelligence community. To the contrary, by design and long practice, the press plays a vital role, alongside government oversight, in ensuring accountability for the intelligence community. Time and time again since 9/11, the media reported on secret activities in ways that motivated government oversight officials and sparked important public debate and reform. And as I explained at length in my speech last week, even in an era of unprecedented national security leaks the government has taken steps to give the press more breathing room in reporting on intelligence. These actions reflect (as I put it) “a deep societal belief that press reporting of secret executive branch action serves a vital function in American democracy, especially in an indefinitely long and secretive war, even though such publications sometimes harm national security. Second, what accountability goal is served by naming the names of the covert officers? I thought Baquet struggled a bit with this question, but I do not think the answer is too hard. In Power and Constraint, I wrote (with emphasis added):
At its core …, “accountability” means to be subject to an account, which in turn means to disclose one’s activities, explain and answer for them, and subject oneself to the consequences of the institution to which one is accounting. Criminal trials are but one form of accountability. Others include lawyer scrutiny, reporting requirements, inspector general and congressional investigations, Accountability Board proceedings, prosecutorial and ethics investigations, civil trials, FOIA processing and disclosures, public criticism and calumny, and elections, all of which impose various forms of psychological, professional, reputational, financial, and political costs on those held accountable. There was little accountability for the CIA in Allen Dulles’s era because very few, inside or outside the government, knew what the CIA was doing.  The crux of modern accountability in the national security bureaucracy is that secrecy of this sort is significantly diminished. The people and institutions inside and outside the government that constitute the presidential synopticon know what the intelligence and military agencies are up to and can take steps to punish or influence their actions if they disapprove.
On this view, which I think is pretty uncontroversial in other contexts, the naming of the three officers serves accountability by subjecting them to public scrutiny and criticism, the prospect of which can provoke self-reflection and deliberation that changes their calculus of decision.  (It is important to separate the question of whether an accountability function is served here from the question of the costs of accountability in terms of risks, a topic discussed above.) Third, to say that naming served an accountability function is not to say that the Times was right to subject these officials to that accountability by blowing their cover. This is, as Baquet acknowledged, a hard issue, involving many tradeoffs, including ones discussed above. Baquet’s best point was that the officials in question are important figures leading the Agency in a new and controversial role that is at the heart of a long and very secretive war. Considered in conjunction with the other points above, that point cuts in favor of naming them, I think. A harder question that I do not know the answer to is the officials’ full role in the counterterrorism decisionmaking structure. Litt and the former CIA officials suggested that they were policy implementers, not policy makers. But while it might be technically true that the head of the National Clandestine Service and the head of the Counterterrorism Center are not “policymaking” jobs, they are certainly among the most important counterterrorism officials in the government. As Baquet said, “the gentleman at the very top [of the CTC] runs a thousand-person agency, and makes huge decisions, personally, that have tremendous repercussions for national security.” Whether defined as policymaking or non-policymaking, this does not seem like a job akin to a line attorney in DOJ. On credibility.   The Times’ identification of the three officials crossed a new line and further weakened the norms against publishing classified or otherwise protected national security information. As Baquet emphasized in our interview, one reason for the change in publication norms is that the traditional media does not take claims of publication harm by the intelligence community as seriously as it once did because the intelligence community has in so many contexts exaggerated claims of harm or been unable to articulate to the press why the breach of a general secrecy norm would cause harm in the particular case in question. This is a self-serving position for Baquet to take, but as I have written a lot on these pages, I think he is right. No one denies that there are good reasons for covertness and secrecy in many cases.  And  in many such cases, the mainstream media honors those norms (such as by not naming agents who are undercover overseas).  But in an era characterized by frequent leaks, seemingly self-serving rolling back of cover, and serial exaggeration of the risks of transparency, abstract arguments for covertness and secrecy are simply not enough when the CIA loses its secret to the press and the press has a plausible argument for publication in a particular, exceptional case. The officials’ reaction to the Times story traded on authority and expertise and implicitly offered a “trust us” rationale rather than making concrete arguments about actual harm. The days in which such general arguments about harm can be effective are gone, and indeed such arguments are now often self-defeating PS: I would especially welcome disagreement and criticism about this post from intelligence officials and former intelligence officials. *After publication I changed the content in this paragraph and the previous one to correct an error in interpretation I had made about Bob Litt's remarks.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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