The CIA and Justice Department are fighting over a secret investigation into a controversial program by legal supporters of Islamist terrorists held at Guantanamo Bay that involved photographing CIA interrogators and showing the pictures to prisoners, an effort CIA officials say threatens the officers' lives.
The dispute prompted a meeting Tuesday at CIA headquarters between U.S. Attorney Patrick J. Fitzgerald and senior CIA counterintelligence officials. It is the latest battle between the agency and the department over detainees and interrogations of terrorists.
Attorney General Eric H. Holder Jr. angered many CIA officials and Republicans in Congress by reopening an investigation last August into whether CIA interrogators acted illegally in questioning senior al Qaeda detainees.
According to U.S. officials familiar with the issue, the current dispute involves Justice Department officials who support an effort led by the American Civil Liberties Union to provide legal aid to military lawyers for the Guantanamo inmates. CIA counterintelligence officials oppose the effort and say giving terrorists photographs of interrogators has exposed CIA personnel and their families to possible terrorist attacks.
As part of the disagreement, a senior Justice Department national security official removed himself from the counterintelligence probe last week after opposing CIA security worries.
Donald Vieira, a former Democratic counsel on the House Permanent Select Committee on Intelligence who in September became chief of staff at the Justice Department's National Security Division, recused himself from the counterintelligence investigation into the recent discovery of photographs of CIA interrogators in the possession of defense lawyers at the prison in Cuba.
The investigation has been under way for many months, but was given new urgency after the discovery last month of additional photographs of interrogators at Guantanamo showing CIA officers and contractors who have carried out interrogations of detainees, according to three officials familiar with the investigation. They spoke on the condition of anonymity.
Findings of the investigation to date produced some signs that the senior al Qaeda detainees at Guantanamo gained intelligence on CIA interrogators through their lawyers that could be used in future legal proceedings.
CIA counterintelligence officials have "serious concerns" that the information will leak out and lead to the terrorists targeting the officers and their families, if the identities are disseminated to terrorists or sympathizers still at large, said one official.
"They have put the lives of CIA officers and their families in danger," said a senior U.S. official about the detainees' lawyers.
The case is being pressed by the counterspies who only recently were able to alert senior agency, Justice Department and White House officials to their concerns.
Details on Mr. Vieira's recusal could not be learned, but the Justice Department team recently added Mr. Fitzgerald, the U.S. attorney in Chicago who led the controversial 2005 investigation into the public disclosure of the identity of CIA undercover officer Valerie Plame.
The recusal is said to be related to Mr. Vieira's past work on the House intelligence committee on detainee policy before 2009, one official said.
Mr. Vieira could not be reached for comment, and Justice Department spokeswoman Tracy Schmaler declined to comment.
A CIA spokesman also declined comment, as did Mr. Fitzgerald, through a spokesman.
According to the officials, the dispute centered on discussions for a interagency memorandum that was to be used in briefing President Obama and senior administration officials on the photographs found in Cuba.
Justice officials did not share the CIA's security concerns about the risks posed to CIA interrogators and opposed language on the matter that was contained in the draft memorandum. The memo was being prepared for White House National Security Council aide John Brennan, who was to use it to brief the president.
The CIA insisted on keeping its language describing the case and wanted the memorandum sent forward in that form.
That resulted in the meeting and ultimately to Mr. Vieira withdrawing from the probe.
CIA Director Leon E. Panetta and his chief of staff, Jeremy Bash, a former chief counsel for the House intelligence committee, at first were unaware of both the scope and seriousness of the case.
However, both officials began addressing the matter after inquiries were made from members of Congress. Since then, Mr. Panetta and Mr. Bash are getting regular updates on the dispute, said the officials.
The legal underpinnings of the counterintelligence probe stem from the 1982 law that makes it illegal to disclose the identity of clandestine CIA and other intelligence officers. The law was passed after CIA defector Philip Agee in the 1970s disclosed the identity of Richard Welch, the CIA station chief in Greece, who was assassinated in 1975 after the disclosure.
The law was tested in the Plame case, amid press accusations that senior Bush administration deliberately leaked the name to embarrass her husband, Joseph C. Wilson IV. However, no one was prosecuted under the statute for the disclosure.
The Pentagon also is involved in the investigation in the photographs compromising CIA officers' identities at Guantanamo because the military provided the lawyers currently representing some detainees. A Pentagon spokeswoman in charge of detainee affairs had no immediate comment and said she was unaware of the case.
The officials said the photographs of the CIA officers found recently at Guantanamo were obtained by a joint program of the ACLU and the National Association of Criminal Defense Lawyers called the John Adams Project.
The project, according to a Washington Post report in August, hired contractors to photograph CIA officers who were thought to have carried out terrorist interrogations. Those photographs were then to be provided to defense lawyers representing some of the Guantanamo detainees as part of an effort to identify the interrogators, for possible use as witnesses in military or civilian trials.
Joshua Dratel, a lawyer representing the John Adams Project, declined to comment directly on whether his group hired investigators to photograph CIA officers and supply them to military defense lawyers.
However, Mr. Dratel said in an interview that "none of the John Adams Project lawyers have done anything inappropriate or contrary to the protective order or any other rules that apply" to the prisoners.
ACLU spokesman John Kennedy also declined to comment on whether the project obtained photographs of CIA officers. However, he said none of the John Adams Project lawyers disclosed the identities of CIA officers to detainees held at Guantanamo.
Details about the investigation into the photographs remain closely held, but one official said CIA counterintelligence and security officials were alarmed by the discovery at the prison.
"What it says is that somebody is going out and finding these agents, taking their pictures, and taking them back to Gitmo, trying to get these guys at Gitmo to confirm who they are and where they are from," one U.S. intelligence official said. "CIA is afraid this information will become public and jeopardize the lives of the agents."
A second source said the probe also has heightened an ongoing political dispute among CIA, Justice and White House officials over the issue of terrorism detainees.
After the Bush administration's Justice Department closed its investigation into alleged wrongdoing by CIA interrogators, Mr. Obama's Justice Department team reopened the case into whether they broke the law while questioning terrorism suspects captured in the early 2000s.
The Justice Department, under Mr. Holder, also favors conducting civilian trials for some terrorism suspects, rather than holding military tribunals. It also has sought to treat captured terrorists more like criminal defendants in legal cases, rather than as enemy combatants captured in wartime.
Bill Gertz is a national security columnist for The Washington Times and senior editor at The Washington Free Beacon (www.freebeacon.com). He has been with The Times since 1985.
He is the author of six books, four of them national best-sellers. His latest book, “The Failure Factory,” on government bureaucracy and national security, was published in September 2008.
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