Loose Canons

Don’t Play “Misty” for Me

Three Senators who blew the cover on a top-secret Black Program should have the book thrown at 'em.

By 12.15.04

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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).

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About the Author
Jed Babbin served as a Deputy Undersecretary of Defense under George H.W. Bush. He is the author of several bestselling books including Inside the Asylum and In the Words of Our Enemies. He is coauthor (with Herbert London) of the new book The BDS War Against Israel. You can follow him on Twitter@jedbabbin.