Newsweek’s Michael Isikoff and Mark Hosenball report that Attorney General Eric Holder has tapped Patrick Fitzgerald, the U.S. Attorney in Chicago, to manage a special investigation into complaints by the CIA that Guantánamo defense counsel acted improperly in trying to establish the identity of CIA agents who interrogated their clients.
The probe was triggered by the discovery last year of about 20 color photographs of CIA officials in the cell of Mustafa Ahmed al-Hawsawi, an alleged financier of the 9/11 attacks, say three current and former government officials who asked not to be identified talking about an ongoing case.
The photos included “paparazzi style” snapshots of covert CIA officers on the street and in other public places, says one former official, an indication that private investigators had taken them on the sly to identify agency interrogators. When told of the discovery, CIA officials immediately grew alarmed that the photos had been shared among the 9/11 defendants, including alleged mastermind Khalid Sheikh Mohammed. (The judge in charge of the military-commission case at the time had ruled that because some defendants, including Mohammed, were representing themselves, they could meet privately with their alleged co-conspirators and share material relevant to their defense.) The photos in al-Hawsawi’s cell were not captioned with the agents’ identities. But “there was real concern” that the pictures could be used to identify covert officers, resulting in agents becoming the targets of Qaeda revenge plots, says the former official.
The decision to tap Fitzgerald was a wise one on Holder’s part. Fitzgerald’s aggressive and successful investigation into the outing of Valerie Plame raised one of the legal concepts in play here—a federal statute that shields the identity of covert CIA operatives from being publicly disclosed in a way that puts the agents at danger. However, this case raises fundamentally different issues. The investigations here, conducted by the John Adams Project, were geared to assisting the defendants in their in-court defense of criminal charges. In many of these cases, the Justice Department has proceeded with claimed confessions by the prisoners. The key issue for judicial review is whether the confessions were coerced and thus are not credible. To grapple with that issue, defense counsel has a duty to undertake efforts to identify the witnesses to these interrogations and to try to ascertain the facts. The CIA does not have the right to criminalize these efforts. Indeed, that is precisely the sort of conduct regularly seen in authoritarian states, where defense counsel are persecuted for doing their jobs.
The CIA agenda in this case may also be a bit more complex than appears on the surface. The agency remains openly concerned about the prospect that agents involved in torture and abuse cases will face criminal investigation or prosecution. The John Adams Project was focused on prisoner defense, but in that process, counsel may very well be making the case that their clients were tortured or abused at the hands of specific CIA agents. In the habeas cases already reviewed in federal courts, for instance, the courts have fairly frequently found that alleged confessions were not credible–often noting that the confessions were secured under torture or mistreatment and that the interrogators themselves didn’t believe them. But the evidence produced may have consequences beyond the immediate criminal case. If a judge concludes that a prisoner was tortured or seriously abused, the Justice Department would again be under pressure to investigate and prosecute the government agents responsible. The CIA efforts to block private investigation of the conduct of their agents are therefore tantamount to a preemptive strike.
The Fitzgerald investigation would also have to look at the rules controlling the lawyers and their dealings with their clients and ascertain whether they were acting within those rules. But there’s no reason to suspect they weren’t. If those rules are interpreted to block the lawyers from trying to establish the essential facts surrounding the interrogation sessions, then they effectively preclude a meaningful defense. This also means that the CIA agents do not have an absolute right to anonymity, certainly no right that blocks their identity from being disclosed in court proceedings (though a court may well take steps that limit public access to this information).
Patrick Fitzgerald acted aggressively to pursue those who blew the cover of a CIA agent as an act of political revenge against her husband. But he’s also famous for having little tolerance for foolishness. And that’s just what this investigation looks like.