Archive: Spy Leak May Violate Patriot Act

Spy Leak May Violate Patriot Act
Newsday, October 27, 2003
By Samuel Dash

If, as now seems likely, top White House aides leaked the identity of an American undercover agent, they may have committed an act of domestic terrorism as defined by the dragnet language of the Patriot Act their boss wanted so much to help him catch terrorists.

Section 802 of the act defines, in part, domestic terrorism as “acts dangerous to human life that are a violation of the criminal laws of the United States or of any state” that “appear to be intended to intimidate or coerce a civilian population.”

Clearly, disclosing the identity of a CIA undercover agent is an act dangerous to life – the lives of the agent and her contacts abroad whom terrorists groups can now trace – and a violation of the criminal laws of the United States.

And what about the intent of those White House officials in disclosing this classified information? Surely, this mean-spirited action on their part was for the purpose of intimidating the CIA agent’s husband, former Ambassador Joseph C. Wilson IV, who had become a strong critic of the Bush administration’s Iraq policies. And not just Wilson. By showing their willingness to make such a dangerous disclosure, the White House officials involved were sending a message to all critics of the administration to beware that they too can be destroyed if they persist. That apparent intention “to intimidate or coerce a civilian population” – in this case American citizens – also meets the Patriot Act definition of domestic terrorism.

We can anticipate the angry protests of the officials in the White House, who wear the American flag pins, over being labeled terrorists. They would be right, of course, to be shocked by such a charge. They neither are nor could they have perceived themselves to be terrorists. But just as shocked and angry must have been the thousands of Muslim aliens and some American citizens when they were detained under the Patriot Act as suspected terrorists. The Patriot Act distorts the criminal law, and its dragnet provisions threaten the liberty of too many innocent people.

Be that as it may, the conduct of the White House officials may still amount to domestic terrorism under the Patriot Act. This places the Justice Department investigators in a dilemma. Can they treat this investigation differently from any other terrorist investigation? Under the Patriot Act, they have acquired expanded powers to wiretap and search. Will they place sweeping and roving wiretaps on White House aides? Will they engage in sneak, secret searches of their offices, computers and homes? Will they arrest and detain incommunicado, without access to counsel, some White House aides as material witnesses?

Certainly, nobody expects they will and I hope they would not employ such police-state tactics. I had hoped they would not use them against ordinary American citizens, but the attorney general has done so, insisting he needs to use these powers to protect our safety. Then why are they not equally needed in a domestic terrorism investigation of White House aides?

Whether or not this disclosure by White House officials of the identity of a CIA undercover agent constitutes an act of domestic terrorism under the Patriot Act, it was certainly an outrageous betrayal of trust and an arrogant display of power by officials charged with protecting our national security and, on behalf of the president, assuring that the laws are faithfully executed.

President George W. Bush and Vice President Dick Cheney must share the blame. They have created a culture in the White House of ruthless opposition to dissent symbolized by their slogan, “You are either for us or against us,” which encourages the kind of retaliation involved in the unlawful leak. This combative spare-no-critic culture allows White House officials to believe that the intolerable conduct involved in this leak is condoned by their bosses.

The history of White House scandals teaches a primary lesson. Delay, obfuscation and cover-up only make the scandal worse and create a quagmire that harms the presidency. President Bush has only one option. He should use his power as president and his control over his aides to demand that the leakers come forward and he should kick them out of the White House.

He should make it unambiguously clear that he does not and will not tolerate this kind of conduct by anyone who works for him. It is not enough for him to condemn generally such leaks and leave it up to only the Justice Department to find the leakers. He must act on his own if he wants to keep the confidence of the people and move ahead with his presidency.

Samuel Dash, a professor at Georgetown University Law Center, was chief counsel of the Senate Watergate Committee in 1973-74.

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