Have you heard that Attorney General Eric Holder has appointed tough federal prosecutor Patrick Fitzgerald to take over a months-old investigation into whether defense lawyers associated with the American Civil Liberties Union illegally compromised CIA interrogators' identities?
The Fitzgerald appointment, mentioned in passing by The Washington Times on March 15 and more fully reported by Newsweek on March 19, has at this writing been virtually ignored by almost all other news organizations. But it raises interesting questions.
The lawyers reportedly had private investigators surreptitiously take photos of men thought to be CIA interrogators, and then showed them to at least one of the four men accused along with Khalid Shaikh Mohammed of conspiring to launch the 9/11 attacks. In at least one instance, photos were said to have been found in a detainee's Guantanamo Bay cell.
The tapping of Fitzgerald, the U.S. attorney in Chicago, may suggest that the Justice Department is taking very seriously an inquiry into the photo situation that was first reported last August by The Washington Post. Fitzgerald is an exceptionally aggressive prosecutor who is known for his investigation of Bush administration leaks of then-CIA agent Valerie Plame's identity and his corruption indictment of former Illinois Gov. Rod Blagojevich.
The use of CIA operatives' photos by ACLU-funded defense lawyers reinforces my concern that conventional rules of criminal justice and legal ethics -- which tend to support what the lawyers reportedly did -- may not be the best way to deal with mass-murder terrorists who wage war against the United States.
A 1982 federal law makes it a felony to knowingly disclose "any information that identifies an individual as a covert agent to any individual not authorized to receive classified information," if done as part 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." Other laws and military-commission rules ban disclosure of classified information generally, including covert agents' identities.
I doubt that any lawyer will or should be prosecuted based on what has been reported so far. But whether this was admirable conduct, and whether we should want defense lawyers using such tactics in terrorism cases, are different questions.
I say this as someone who has denounced the efforts of hard-right conservatives to smear as disloyal several other lawyers now working in the Obama administration's Justice Department (including a friend of mine) who previously represented Guantanamo detainees.
The investigation now headed by Fitzgerald appears focused on the activities of the John Adams Project, a joint effort of the ACLU and the National Association of Criminal Defense Lawyers. The project reportedly spent $4 million between April 2008 and the fall of 2009, when it was disbanded, to assist military lawyers in defending against military-commission prosecutions of terrorism suspects.
(Holder announced last November that the administration would transfer the 9/11 case from the military commission to a civilian federal court in New York City, a decision that now -- according to multiple news reports -- seems likely to be reversed.)
Anthony Romero, executive director of the ACLU, told Newsweek last week (as he had hinted to The Post last August) that the John Adams Project hired private investigators to track down and identify CIA operatives involved in "torture."
"It would be an essential part of any defense to cross-examine the perpetrators of torture," Newsweek quoted Romero as saying. He added that "to our knowledge," the 9/11 conspiracy suspects "were not told the identities of the CIA officers."
ACLU spokesman John Kennedy told me that "John Adams Project attorneys at all times adhered to the law and fulfilled their ethical obligations."
Does this mean that a lawyer for a terrorism suspect accused of mass murder has a right -- or even an ethical duty -- to secretly procure and show his client photos of covert CIA agents who may have interrogated the client?
Maybe so, if such defendants are to be prosecuted under the conventional criminal-justice rules -- rules that prevail, by the way, in military commissions as well as in civilian federal courts.
Two leading legal-ethics experts -- Monroe Freedman of Hofstra Law School and Stephen Gillers of New York University Law School -- told me that (in Freedman's words) "both ethical rules and Supreme Court precedents require criminal defense lawyers to do everything within reason that is ethically and legally possible on behalf of the client."
Were the photos shared with any of the left-leaning lawyers campaigning for foreign prosecutions of Bush administration officials?
Similarly, a criminal defense lawyer whom I hold in high regard (and who would not speak for attribution because of his relationship with the ACLU) asserts that it would be entirely appropriate for any 9/11 defendant's lawyer to investigate his client's CIA interrogators and show their photos to his client. (He added that leaving photos with the client might tempt a prosecutor to bring charges based on the remote chance that they might be smuggled to other terrorists, putting the agents at risk.)
But Kenneth Anderson, an American University law professor who has written widely on terrorism issues, said that the defense lawyers' reported use of CIA agents' photos "sickens and disgusts me." Me, too.
Anderson does not claim (nor do I) that anyone violated any law or ethical rule. But he does say that the defense lawyers' reported conduct "unintentionally supports the position of some conservatives that such cases should treated as matters of war, not criminal law."
The Justice Department investigation began last year after about 20 color photos of CIA officials (according to Newsweek) were discovered in the Guantanamo cell of Mustafa Ahmed al-Hawsawi, one of the five 9/11 defendants.
The August 21 Post article reported that FBI agents had questioned military defense lawyers about whether they had shown their clients photos of covert CIA officials that had been "in some cases surreptitiously taken outside their homes." The Justice Department cleared the military lawyers of any wrongdoing months ago, according to the March 19 Newsweek report by Michael Isikoff and Mark Hosenball. (I am an occasional contributor to Newsweek.)
But the investigation of the John Adams Project lawyers "was given new urgency after the discovery last month of additional photographs of interrogators at Guantanamo," Bill Gertz reported in The Washington Times on March 15.
CIA officials have told the Justice Department that the defense lawyers' use of the photos could expose agents and their families to terrorist hit squads.
This concern might seem far-fetched if -- as the ACLU has suggested -- the 9/11 defendants were shown the photos but were given no other information that could lead to exposure of the agents' names or whereabouts. But Romero's statement that the 9/11 conspirators were not told the agents' names "to our knowledge" is not entirely reassuring. Nor is the fact that some of the photos were apparently left with -- rather than just shown to -- a detainee.
One also wonders: How widely were the photos and names of covert agents disseminated within the defense camp? Were they also shared with any of the left-leaning lawyers who have been campaigning for foreign prosecutions of Bush administration officials for "torture" if the U.S. will not prosecute them? Or shared with the European investigators, human-rights groups, news organizations, and others who have made lists of CIA interrogators, station chiefs, and associates who may have been involved in interrogations?
At least one senior Justice Department official, Donald Vieira, was skeptical of CIA complaints that showing covert agents' photos to terrorism suspects could jeopardize the agents and their families or amount to a crime, according to Gertz's March 15 article. But Vieira later recused himself from the case, and now Holder has brought in Fitzgerald to run the investigation.
Fitzgerald did not charge anyone with a crime for leaking the identity of Plame, whose husband, Joseph Wilson, was a vocal critic of Bush. But the special prosecutor did win a conviction of I. Lewis (Scooter) Libby, Vice President Cheney's former chief of staff, on charges of grand jury perjury, false statements to the FBI, and obstruction of justice.
Holder's choice of Fitzgerald to lead the current investigation seems wise, because if he ends up deciding that no crime was committed, as I suspect he will (and should), it will be hard for conservative critics to accuse Holder of favoritism toward left-leaning Guantanamo defense lawyers.
But if the lawyers' conduct becomes widely publicized, "ordinary people will" -- and should -- "recoil from the idea of sharing CIA agents' photos with alleged terrorists," in Anderson's words.
And that may lend plausibility to the view of Benjamin Wittes of the Brookings Institution and Jack Goldsmith of Harvard Law School, in a closely argued March 19 Washington Post op-ed, that the best resolution of the bruising debate over where to try the 9/11 defendants -- who can be detained indefinitely as enemy combatants -- may be: "Don't bother trying them at all."
This article appears in the March 27, 2010, edition of National Journal Magazine.