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UNAUTHORIZED DISCLOSURES, CLASSIFIED INFORMATION AND INDEPENDENT INVESTIGATIONS: REFLECTIONS OF A FORMER ASSOCIATE INDEPENDENT COUNSEL
Professor Sandra Jordan
University of Pittsburgh School of Law
JURIST Guest Columnist

The current controversy in Washington concerning the alleged media leak of the identity of an undercover CIA intelligence agent whose husband had challenged the Bush administration policy on Iraq is but another example of the growing tensions that arise when breaches occur at the highest levels of government. The Department of Justice has launched a formal investigation to determine who leaked classified information disclosing the identity of the CIA employee. Because of the nature of this type of investigation, the White House staff has been advised to preserve all materials that might in any way be related to the Department痴 investigation.

The Allegations

In July of this year, someone released to journalists the name of a CIA operative who served as an analyst on weapons of mass destruction. The CIA employee is the spouse of Joseph Wilson, a former ambassador to Iraq in 1991. Wilson has been critical of the Bush administration and the Iraq war and he expressed this opinion after he heard President Bush痴 state of the union address in January. In this speech, the president made the now infamous statement concerning the efforts Iraq was making to buy uranium in Niger as a basis for the conclusion that Saddam Hussein posed an immediate threat.

The CIA sent notice to the Department of Justice that a leak had occurred, but this notice was not viewed as a formal request for a criminal investigation. Wilson has accused the government officials of leaking the name of his wife in retaliation to discredit her as a means of getting back at him for his opposition to the administration痴 positions. This leak has serious implications in the broader sense because the identity of such operatives should remain classified and secret to protect national security and ongoing investigations directed to international criminal and terrorism activity. There exists the very real danger of risking a covert operation, and all contacts, sources and foreign intelligence that has been gathered to date.

The Legal Tension

The Department of Justice has been called upon to treat this matter with the utmost seriousness and it has launched a full-scale criminal investigation. At the onset, the Attorney General has the power to make certain preliminary determinations as to whether he should 1) handle this investigation internally; 2) conduct a preliminary investigation to determine whether outside counsel is needed; or 3) appoint independent outside counsel at the onset. This decision rests with the Department of Justice. It is here, as with all other independent counsel investigations, that we find the crux of the matter.

Regardless of the decision that Attorney General Ashcroft makes, the issues will remain complex. Because the allegations are that persons at the highest levels of the government had access to the released information, if Ashcroft fails to appoint outside counsel, the Justice Department will be subject to harsh criticism because an internal investigation will be sheltered from public scrutiny, and will lose a critical component of legitimacy. Despite efforts by career prosecutors and counterespionage investigators within the Department of Justice who might be capable investigators, there is the real likelihood that the results of such an internal investigation will not gain public acceptance and confidence. If the initial criminal probe reveals actual crimes, the prudent thing to do would be to appoint an independent counsel to conduct a full-scale criminal investigation, independent of the executive branch. Ashcroft has some time to make this decision; however it is one that seems inevitable.

Any investigation that results from these allegations risks the release of classified information necessary to both investigate and prosecute any charges. At a minimum, the name of the CIA employee was classified for a reason. There are laws designed to protect the secrecy of classified information, such as the Classified Information and Procedures Act and the Intelligence Identities Protection Act. Anyone violating either law must be shown to have knowingly done so, that is, they must have disclosed the information while knowing that the matter was indeed classified. This alone might be an impossible burden to meet. The criminal penalty for violations of this law are stiff and from what is known at this juncture, if the allegations are proven to be true, there has been a serious felony offense committed, possibly at the highest levels of the current administration. Compounding the difficulty of investigating such cases is the challenge of identifying the alleged source of the information. The media is likely to refuse to disclose the sources under their First Amendment protections, and the subject is unlikely to come forth without assurances of immunity.

Cases involving classified information almost always involve complicated evidentiary, procedural and disclosure questions. In addition, secrecy rules governing the operation of a grand jury will remove much of the investigation from public scrutiny. More critical, because this case invariably will involve classified information, depending on the level of sensitivity of the information required to ascertain the facts, disclosure issues will become central.

History teaches us that major breaches often begin with a seemingly innocuous event. In the case of Iran/Contra, the entire scandal sprang from the crash of a small plane in Nicaragua that was actually an illegal gunrunning operation under the auspices of the CIA. When I was involved as an Associate Independent Counsel during the Iran/Contra prosecution, classified information was central to the long-running and complex investigation. In fact, the Attorney General maintained control of classified information that was needed by the Independent Counsel to prosecute the case. As a result, there was a very real tension between these two investigative arms of the government in determining the parameters of securing the testimony of intelligence personnel and classified evidence. Even if Ashcroft refers this matter for independent investigation, we will not avoid the classification tension because, by the very nature of the allegations thus far, the very heart of the investigation will involve the unauthorized release of classified information. Viewing this case as a simple question of unauthorized disclosure, the complication arises because it centers on classified information.

We have witnessed this dilemma before and it is not easily answered: the government that must declassify information for use in a criminal investigation is not always in an objective position to determine whether the exposure of the information will promote the public interest. Ashcroft will likely face this critical question whether he refers this matter for independent investigation or not. Prudence suggests that he avoid even the appearance of impropriety by calling for the appointment of an independent counsel. Failure to do so could lend credence to the cloud of dishonesty surrounding this administration, despite any evidence to the contrary that might emanate from any internal investigation.


Sandra Jordan is a professor at the University of Pittsburgh School of Law. She was an Associate Independent Counsel for the Iran/Contra prosecution.

October 1, 2003

GUEST COLUMNIST

JURIST Guest Columnist Sandra Jordan is an Associate Professor at the University of Pittsburgh School of Law. She served for almost 10 years as an assistant U.S. attorney for the Western District of Pennsylvania, eventually heading the White Collar Crimes unit of the U.S. Attorney's office. From 1988 to 1991, she was a member of the prosecution team in the Iran-Contra trial, one of the most significant tests of executive powers and congressional immunity in recent times.

Active in professional and community organizations, Professor Jordan has served as the vice chairperson of the Judicial Conduct Board of Pennsylvania, which investigates and files charges of misconduct against members of the state's judiciary. She has had numerous professional affiliations, including as a Master in the Inns of Court, University of Pittsburgh chapter, and is a member of the Civil Justice Advisory Group for the Western District Court of Pennsylvania, and the Disciplinary Board committee for the Supreme Court of Pennsylvania.

Professor Jordan has been an instructor, lecturer, and presenter on evidence, trial advocacy and white-collar crime on several occasions for practicing attorneys, judges, law enforcement officials, and investigators. Her scholarly writings have appeared in the Columbia Law Review, Howard Journal of Social Justice, Chicago-Kent Law Review, and Black Law Journal.