How long are we going to tolerate senators and congressmen who
divulge our most closely-held secrets to the public in search of
cheap political gain? We have laws that make those leaks serious
federal crimes. We’re spending enormous resources on finding out
who leaked Valerie Plame’s identity as a CIA agent to the press.
Leaks that are vastly more important — and which should be pursued
with no less determination and resources — are regularly ignored
because the culprits are sitting members of Congress. These leakers
should be thrown out of office and prosecuted.
It’s been about two years since Sen. Richard Shelby blew one of
our most important secrets — that we were bugging Osama bin
Laden’s cell phone, a fact that could have led to the capture of
America’s most wanted terrorist — by bragging about it to a
reporter. Shelby’s action (if it really was him) has never been
prosecuted. Why not? Now, another huge leak comes in the form of
the disclosure by members of the Senate of a highly-classified
satellite program. Three members of the Senate Select Committee on
Intelligence have apparently committed a very serious crime by
blabbing about a highly-classified satellite program to the press
last week. If these men actually did what it appears they did, we
ought to throw the book at ‘em for divulging one of our
most-protected secrets: stealthy reconnaissance satellites.
As a result of their revelations to the public and the press,
three U.S. Senators — Sens. Jay Rockefeller (D-W.Va.), who’s also
the ranking Dem on the Senate Intelligence Committee, Sen. Dick
Durbin (D-Ill.) and Sen. Ron Wyden (D-Ore.) — are the subject of a
“criminal referral” made on Monday for speaking publicly about this
satellite. Such referrals are made to the Justice Department by the
administration when criminal conduct is suspected. In this case,
it’s not only suspected, it’s evidenced on the front pages of the
New York Times and the Washington Post. A highly
reliable intelligence community source told me that the referral
had been made because senior administration officials were beside
themselves that the three had taken the controversy on funding this
project to the press.
YOU HAVE TO UNDERSTAND that the kind of project we’re talking
about is protected by the highest level of security our government
has. When Sandy Bergler was carrying “code word” level papers out
of the National Archives in his pants and socks, he was committing
a federal felony. So — according to sources — was Sen. Richard
Shelby, who is the subject of an earlier criminal referral for
blabbing about our bugging OBL’s cell phone. When the government
buys something secret, those that are most classified are called
“black” programs because their existence can’t even be admitted.
They aren’t listed in the public versions of legislation that
authorizes and pays for them. Black programs are made so for a
reason.
Think about why we might build a stealthy satellite. Many
nations, including Iran and other terrorist regimes, have the
ability to spot conventional satellites on their radars. They can
predict with considerable accuracy what those satellites can see,
and when. If we had a satellite that couldn’t be seen, its view of
the bad guys couldn’t be predicted. Now, these three senators have
blown the cover on a black satellite program that may be code-word
named “Misty,” and by so doing, reduced the value of the satellite
and the strategy that it is to implement to zero.
To be cleared for these programs, which the senators and their
intel staffers all are, each had to be briefed in detail about
their legal obligations, and how the information has to be handled.
They would have had to sign agreements such as the one I signed
when I had these clearances. The paperwork warns you — loudly and
clearly — that this is a damned serious matter. If they divulged
information on this program — whatever the program may actually be
— they broke the law knowingly and intentionally.
The three senators made a variety of disclosures about the
program. Rockefeller made a statement on the Senate floor which his
staff claims was “fully vetted and approved by security officials.”
Baloney. According to a congressional source, Rockefeller’s
statement wasn’t cleared with anyone in the Pentagon or CIA, and
wasn’t checked by the Intelligence Committee majority staff.
Whomever “vetted” it isn’t clear, but it wasn’t done by the proper
authorities.
Wyden’s statement, quoted in the Sunday New York Times,
not only talked about the satellite system but demagogued its
price. According to the Times, Wyden — whose Pentagon and
defense industry-bashing skills were developed in years of service
as one of John Dingell’s minions on the House Energy and Commerce
Committee — “did not mention Lockheed, but he expressed concern
about the rapidly escalating cost of the satellite program and the
way in which the contractor was selected.” By even admitting
publicly that the program exists — which at least Wyden did
explicitly — is a crime punishable by years in exotic vacation
spots such as Fort Leavenworth. (One source told me that Durbin has
made similar statements to those of Wyden and Rockefeller, but I
could not confirm this by deadline.)
ONE OF THE MOST DISTURBING facts about this incident isn’t
whatever problems may or may not exist with the alleged satellites.
(Among the leaks are further details that the satellites may not
have infrared and radar capability, rendering them dependent on
weather.) The biggest problem right now is that Senate Majority
Leader Sen. Bill Frist (R-Tenn.) is treating the whole matter with
a big yawn. A Congressional source told me that Frist was doing
precisely nothing to help the administration deal with what may be
the most serious violation of security laws in the Senate in years.
What is Frist thinking?
Senators and their staffs have an important role to play in
authorizing, appropriating, and overseeing intelligence
expenditures. But they cannot be permitted to take disputes on
those issues public. Now that the criminal referral has been made,
several things should happen immediately, and Sen. Frist should be
leading the charge to make sure they do.
First and foremost, the senators and staffers involved (and, for
good measure, Sen. Shelby and any of his people who were included
in the earlier criminal referral) should have their security
clearances suspended during the period of the investigation. If
that leaves a gap on the Senate intel committee, it can be quickly
and easily filled by other senators and staff who have clearances
at the proper level. Second, a damage assessment should be ordered
to determine just how much information was actually revealed, what
programs it may affect, and how — or whether — the damage can be
repaired.
Third, the investigations should be pursued vigorously and with
all possible speed. If the senators are found indictable, they
should be indicted, tried and judged in accordance with the law.
(The so-called “legislative immunity” of the Speech and Debate
clause of the Constitution shouldn’t be a defense to the crimes
here. According to Edward MacMahon, a criminal defense lawyer
expert in matters of classified information, “If a senator
committed a crime, the Speech and Debate Clause would give no
protection.”) Charges, trials and removal from the Senate — if the
investigations show the allegations worth trial, and the trials
result in conviction — are events every one of us should
demand.
If the laws that require our secrets be kept secret aren’t taken
seriously by those who hold the public’s trust — such as Shelby
and the “Misty Three” — and if serious violations of these laws
are also taken lightly as Sen. Frist seems to be doing now — our
system of government will not be able to function as the
Constitution says it must. If Congress cannot be trusted with
secrets such as these, it cannot provide the essential checks and
balances on the Executive we rely on it to perform in order to
protect us from a runaway president. Right now, we apparently have
a runaway Senate. The Justice Department, and Sen. Frist’s office,
should be working day and night until this problem is solved, and
cooperate to ensure the leakers are punished to the full extent of
the law.
TAS Contributing Editor Jed Babbin is the author
of Inside the Asylum: Why the U.N. and Old Europe Are Worse
Than You Think (Regnery Publishing).
