- The Washington Times - Wednesday, August 26, 2009

The Associated Press reported Friday that lawyers for certain Guantanamo Bay detainees have possibly violated federal criminal law by releasing the identity of CIA covert operatives.

The current Justice Department investigation connects to both the Valerie Plame matter a few years ago, and the current issue of where and how Guantanamo Bay detainees should be charged and tried. First, the Plame Affair. According to the mainstream media, that was about the “outing” of a CIA “covert operative” in violation of federal law.

But that law applies only to people who had been a covert operative “within five years.” The only person who identified her as a CIA covert operative within five years of her service was her husband, who let the cat out of the bag in a Who’s Who entry. Mrs. Plame was not outed by anyone, per the law.

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However, the fraud of the Plame blame game does not detract from the real purpose of the CIA-protective law. It’s designed to protect covert CIA agents from being killed by enemies who would do so in a heartbeat if they knew who these agents are. That brings us to the current situation.

The defense counsel for certain Guantanamo Bay detainees is receiving help from the John Adams Project, a combined effort of the American Civil Liberties Union and the National Association of Criminal Defense Lawyers.

According to numerous accounts, these defense lawyers have John Adams Project researchers taking photos of CIA covert operatives. And these lawyers have already shown these photos to their clients in Guantanamo Bay and are now seeking the legal right to release the photos to the public.

Now, some of those Guantanamo Bay clients may well be innocent, but at least some, based on convictions to date and on the behavior of many who have been released, are terrorists. Some of them want to kill Americans on sight — especially those who work for the CIA. Odds are that the assistants who took the photos did not get them at Bagram Air Field in Afghanistan or at Guantanamo Bay.

More likely these photos were taken in the home communities of these agents, placing not only them, but their families and neighbors in the cross hairs of murderers. And that is precisely why the law that never actually applied in the Plame Affair, does apply today.

It may be that just showing the photos of the CIA agents to their clients turns the assistants who photographed them and the lawyers who passed them on, into criminals themselves. Beyond that, there is the matter of what happens if these photos are offered as evidence in a trial.

There is a long history of using military tribunals to try illegal combatants, also known as terrorists or spies. Anyone in the administration or in the press who does not grasp the differences between ordinary trials and military tribunals cannot understand why these procedures should take place at Guantanamo Bay — and not here.

For those still confused, in a nutshell, a trial on U.S. soil must be a public trial, with people and press admitted. So all evidence becomes public knowledge. Also, hearsay evidence is admissible in military tribunals, but not in trials. For example, an affidavit from a Capt. Jones, on active duty half a world away, is acceptable evidence in a tribunal, but not in a trial.

And, tribunals are tried before a board of officers as the “jury” as opposed to a trial in which a single, squeamish juror can sink the whole process at the end. In short, for reasons of government secrecy about intelligence matters, or witnesses who are thousands of miles away in combat, there are cases that can be brought and prosecuted in tribunals that would never be tried in an ordinary court. So, what are the odds that this administration will do a competent job of investigating possibly illegal conduct by these defense lawyers and legal assistants?

Well, we’ve seen the attorney general dropping charges against the New Black Panther Party caught violating election law on videotape and yet wanting to prosecute Bush administration lawyers for doing their job of offering requested legal advice about interrogation techniques.

We’ll have to watch and see if, instead of trying to create a crime where there is none, as in the Plame case, whether this administration will try to cover up crimes that have been committed. If they do, CIA agents may pay with their lives.

John Armor practiced law before the U.S. Supreme Court for 33 years. He is of legal counsel to the American Civil Rights Union.

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