Thursday, May 6, 2010

Covertly taken photos of CIA interrogators that were shown by defense attorneys to al Qaeda inmates at the Guantanamo Bay prison represent a more serious security breach than the 2003 outing of CIA officer Valerie Plame, the agency’s former general counsel said Wednesday.

John Rizzo, who was the agency’s top attorney until December, said in an interview that he initially requested the Justice Department and CIA investigation into the compromise of CIA interrogators’ identities after photographs of the officers were found in the cell of one al Qaeda terrorist in Cuba.

“Well I think this is far more serious than Valerie Plame,” Mr. Rizzo said after a breakfast speech. “That was clearly illegal, outing a covert officer. I am not downplaying that. But this is far more serious.”

“This was not leaked to a columnist,” he added. “These were pictures of undercover people who were involved in the interrogations program given for identification purposes to the 9/11 [terrorists].”

Mr. Rizzo’s remarks are the first public comments by someone who was involved in the probe on the still-secret investigation.

On Capitol Hill, Rep. Howard P. “Buck” McKeon, a California Republican who was briefed recently on the investigation, agreed with Mr. Rizzo that the ongoing probe of the John Adams Project is very serious.

Mr. McKeon, ranking member of the House Armed Services Committee, said he has been pushing the Obama administration to brief the full committee on the investigation, which will now take place next week.

“The published reports indicate that there have been things that have happened, information passed back and forth to the detainees possibly through their attorneys,” he said.

“My greatest concern is that [the information supplied to the detainees] put our people at risk,” Mr. McKeon said in an interview with The Washington Times.

An indication of the seriousness was the fact that the investigation has been going for a year and the Justice Department recent appointment of U.S. Attorney for Northern Illinois Patrick Fitzgerald as “special prosecutor,” Mr. McKeon said.

Mr. McKeon said the CIA also “is very concerned” about the safety of its officers because of the compromise.

Mr. Rizzo, who was the CIA’s acting general counsel from 2004 until December 2009 when he left, said the Guantanamo case is a graver matter than the scandal over Mrs. Plame, a former CIA undercover officer whose name was leaked to the press after her husband accused the Bush administration of lying about prewar intelligence in Iraq.

The Plame scandal ended up ensnaring the Bush administration in an unauthorized disclosure probe from 2004 and 2007, after the Justice Department appointed Mr. Fitzgerald to investigate that case.

Mr. Fitzgerald has been asked to investigate the military lawyers in charge of representing some high-value detainees in Guantanamo Bay, along with outside attorneys who were helping them.

U.S. officials close to the CIA-Justice probe said photographs of the CIA officers were found last year in the cell of Mustafa Ahmed al-Hawsawi, an alleged financier of the Sept. 11 plot. Officials said the photographs appeared to have been taken by private investigators for the John Adams Project, which is jointly backed by the American Civil Liberties Union and the National Association of Criminal Defense Lawyers.

The ACLU on Wednesday said, “The members of the John Adams Project at all times adhered to the law and fulfilled their ethical obligations while representing their clients.”

“In addition, the members of the John Adams Project complied with every requirement of the Joint Task Force and every protective order of the military commissions,” the group said in a statement. The joint task force is the governing body that runs the Guantanamo Bay prison.

Mr. Rizzo said the photos “were pictures of agency people, some of which were captured paparazzi-style, clearly taken in a kind of surveillance mode.”

In recent years, nongovernmental organizations have compiled dossiers on CIA officers involved in the enhanced interrogation program that have included waterboarding, stress positions and sleep deprivation — practices considered by human rights groups to be torture.

Mr. Rizzo said when he was nominated to be the CIA’s general counsel he agreed with the interpretation of the Bush administration’s Justice Department that torture was defined as harm to someone’s internal organs and not the enhanced techniques used by the CIA.

“These were undercover people, the pictures taken surreptitiously found in the cell of one of the 9/11 suspects. I think they found it under the guy’s blanket,” he said.

Mr. Rizzo said the case was first brought to his attention by military officials at Guantanamo. “When we do referrals, we don’t necessarily have to cite a particular provision of the law that has been violated,” he said.

But he said that he could think of two types of crimes that may have been committed by the attorneys giving the photos to the detainees.

One possible crime would be the “disclosure of classified information, being the faces of these people, to an enemy foreign power,” Mr. Rizzo said.

Mr. Rizzo said the other possible law the pro-bono attorneys may have violated would be the 1982 Intelligence Identities Protection Act (IIPA), the same law Mr. Fitzgerald initially investigated in Mrs. Plame’s case. No one in the Plame case was prosecuted under that statute. A former aide to Vice President Dick Cheney, I. Lewis “Scooter” Libby Jr., was convicted of lying to investigators and later partially pardoned.

The IIPA requires the prosecutor to prove that the leaker knowingly disclosed the identity of a CIA covert officer. Victoria Toensing, a former chief counsel to the Senate Select Committee on Intelligence who helped co-author the Intelligence Identities Protection Act, said the government never proved that Bush administration officials knew beforehand that Mrs. Plame was a covert CIA officer.

By contrast, she said from what she could gather with regard to the current investigation into the detainee attorneys, the law she helped write would apply.

“In this case, these were exactly the kind of people we were trying to protect under the act,” Mrs. Toensing said, referring to the CIA interrogators.

Mr. Rizzo in the past has been criticized by civil liberties groups for being the top agency lawyer when 92 videotapes alleged to have shown the waterboarding of Abu Zubaydah and Abd al-Rahim al-Nashiri were destroyed.

Mr. Rizzo in the interview said he had no knowledge that those tapes were going to be destroyed in 2004. He said he did not, however, believe the destruction of the tapes constituted a crime.

“It would have been a crime if it was being done to obstruct an investigation,” he said. “There are court cases ongoing, but there was no ongoing congressional investigations at that time. There were court cases, but as best as we can tell, those tapes were never part of a protective order.”

Mr. Rizzo did, however, say that Jose Rodriguez, the CIA clandestine officer who ordered the destruction of the tapes, “shouldn’t have done it.”

The CIA declined to comment for this article.

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