How the ACLU, Ron Paul and a former EFF Director helped jail a CIA whistleblower

By Mark Ames , written on February 7, 2015

From The News Desk

CIA whistleblower John Kiriakou, who went public about torture programs and was later jailed for leaking the name of a covert CIA agent, was just released from prison to serve out the remaining months of his sentence under house arrest. Kiriakou is the first CIA spy ever jailed for leaking secrets, and only the second American ever convicted under a 1982 law making it a crime to publicly identify covert CIA agents.

The story of how that law, the “Intelligence Identities Protection Act,” came to be is an important and depressing story in its own right, one that’s been totally forgotten. And for good reason: Bad memories are best suppressed, until they creep back up and become a serious "now" problem, and you need to figure out how things got to this point.

The story behind the 1982 law used to jail Kiriakou fills in some of the blanks about how the modern secrecy apparatus was first put together beginning in the Reagan-Bush years. It also reveals the complicity and collaboration of our leading civil libertarians in creating the secrecy-and-censorship leviathan that these same civil libertarians claim to be fighting today on our behalf. Everyone from the ACLU, libertarian hero Ron Paul, even the first executive director of the Electronic Frontier Foundation was complicit in giving us the anti-whistleblower law that put John Kiriakou in prison.

First, some background. Before 1982, there was no law making it illegal to publish the name of a covert CIA agent. And until the early-mid 1970s, there was no need for one: self-censorship in the establishment media kept this problem to an absolute minimum. But by the mid-1970s—with Watergate, the humiliating defeat in Vietnam, and shocking exposés on CIA programs spying on American dissidents at home, assassinating foreign leaders overseas, and running bizarre behavior modification drug experiments—the country’s mood had swung sharply leftward, anti-authority, and especially anti-CIA.

Journalists and whistleblowers who uncovered CIA spies and operations were suddenly the new pop culture heroes, while the CIA became Hollywood's pop culture villains, whose evil needed almost no explanation. Polls showed the percentage of Americans who distrusted government rose from 22 percent in 1964, to 62 percent in 1974. Ratings that the CIA would've envied: polls showed the Agency was “highly regarded” by just 14 percent of Americans, and just 7 percent of college students. As the Church and Pike Committee hearings exposed CIA scandal after scandal, liberals in Congress like Ron Dellums and Mo Udall were calling for completely gutting or abolishing the Agency outright.

Around the same time, Norman Mailer raised money from the Manhattan radical chic crowd for his Fifth Estate foundation—set up as a "people's CIA... a secret police to keep tabs on Washington's secret police." The money went to help fund a new magazine, CounterSpy, devoted to taking down CIA and FBI spying programs by exposing their operations, and their agents' names in the field.

But then two things happened: A CIA officer in Athens named Richard Welch was assassinated by a Greek leftwing terror group in late 1975; and America lost interest in demonizing the National Security State as the slyer folks realized there was more to be gained in collaborating with the NatSec beast.

First, about the murder of Welch—because that event resonated far more deeply than anyone who wasn't conscious in the late 1970s could possibly grasp. Officially, we were told that it was all the fault of CounterSpy, which published an article by CIA whistleblower-defector Philip Agee, who outed Welch by name as a CIA agent (but wrongly identified Welch as station chief in Lima, Peru, rather than in Athens). In that same CounterSpy article, Agee wrote:

“The most effective and important systematic effort to counter the CIA that can be undertaken right now [is] the identification, exposure, and neutralization of its people working abroad.”
This sort of boastful taunting—the Mohammed Ali of whistleblowers—made a lot more sense in early 1975, when the mood of the country swung hard against the CIA, a swing that seemed, for a brief moment, to be permanent. But by early 1976, thanks to America's fickle mood swings, and the resources that the White House and CIA deployed to manipulate those mood swings—Agee's trash talk would come back to haunt CounterSpy, along with their fair weather radical-chic supporters, and the whole muckraking wing of American journalism. Within days after Welch's murder, death threats against Sen. Church, Rep. Pike and Ron Dellums were pouring in from around the country, while Woodward & Bernstein's Washington Post blamed Welch's murder on “the entirely predictable result of the disclosure tactics chosen by certain American critics of the agency.” CounterSpy's radical chic backers melted away, exit: stage left.

President Ford and his new CIA director, George Bush Sr., put on a funeral spectacle-cum-psyops show designed to turn the mood against the CIA's critics in the press and in Washington. It was a funeral so pompous and unusual for a CIA officer, so over-the-top, it made the recent anti-de Blasio funeral for the murdered NYPD officers look humble by comparison. The plane transporting Welch's body circled for 15 minutes over Washington DC so that its landing could be broadcast live on the morning national news TV. And Welch's body was buried in National Arlington Cemetery, over the protests of the Veterans of Foreign Wars (the cemetery is for military, not CIA).

The funeral even featured the very same horse-drawn caisson that carried JFK's body in 1963, while a somber President Ford personally escorted Welch's widow. There had never been anything like this funeral for a CIA officer. Otis Pike, who died last year (I wrote about it for Pando), told UC Davis history professor Kathryn Olmsted that the CIA "played [the Welch death] like an organ"; and the Pike Committee's chief counsel bitterly complimented how Welch's murder was handled "magnificently, in a malevolent sort of way."

The truth about Welch's assassination, as we found out, was that CounterSpy had zilch, or near-zilch, to do with his murder. Welch's name had been published already in the Peruvian press well before CounterSpy outed him, as well as in an East German book listing CIA agents. Moreover, Welch foolishly chose to live in a conspicuous residence that housed previous Athens CIA station chiefs, even after a local Athens newspaper outed Welch's name, full address and phone number. And, most damning of all, the CIA itself had advised Welch to move somewhere else, but he didn't listen to his own intelligence agency.

But that all came out later, after the narrative was burned into America's increasingly fearful consciousness.

The immediate purpose of exploiting Welch's corpse for the PR counter-offensive was to undercut the Pike Committee and Church Committee's damaging reports, which were due to be published in early 1976, just weeks after Welch's assassination. The more damaging Pike Committee report on the CIA was suppressed, as I wrote last year; and Frank Church's effectiveness was undercut, his presidential plans in 1976 ruined by the backlash. But Welch's assassination was quickly being used to push another more serious, longterm agenda that George Bush Sr set in motion: constructing the National Security State's secrecy apparatus, starting with the criminalization of leaking names of covert CIA operatives.

A January 3, 1976 New York Times article, "Slaying of C.I.A. Officer Stirs a Debate on Identity Disclosures," begins:

The killing of Richard S. Welch, the Central Intelligence Agency's chief in Athens who was shot by gunmen there Dec. 23, has intensified a debate over the extent to which disclosures by Congressional committees and critics of the C.I.A. have damaged the agency's overseas operations and endangered employees.
Then came the Bummer Years under Carter, a spy novel called "The Spike" that seemed to really matter at the time—and by 1980, the legislative push for a new law criminalizing leaking the name of covert CIA agents came from the Democratic Party's chairman of the Senate Intelligence Committee, Patrick Moynihan. His proposed law would impose up to 10 years imprisonment on leakers like Philip Agee who named names, and up to three years prison for journalists who "intended to expose covert agents." Moynihan's bill was blocked by Sen. Ted Kennedy, who rewrote Moynihan's bill so that it did the very opposite—strengthening First Amendment protections for government whistleblowers.

The bill died. And so did Jimmy Carter's presidency, and whatever remained of American liberalism's fighting spirit—for better and for worse.

Screen Shot 2014-12-14 at 5.32.42 PMWithin weeks of President Reagan taking office, his new CIA director, William Casey, went to work reconstructing the CIA, and building a wall of secrecy and censorship around it to protect its planned operations—such as the deadly dirty wars in Central America, and all the sleazy cocaine and arms trafficking ops involved—from potential Philip Agees, Seymour Hershes, and Frank Churches. And the first pillar in this secrecy apparatus that Casey immediately pushed Congress to enact was the Intelligence Identities Protection Act.

And here's where things get really dark and ugly. As the late, great investigative reporter Angus MacKenzie revealed his his book "Secrets: The CIA's War At Home," Casey and the CIA still faced formidable opposition from what was then still a formidable liberal lobby focused on defending civil liberties and the reforms of the Carter years. But then the most powerful of these institutions, the ACLU, broke away and agreed to collaborate with Reagan's CIA in crafting new secrecy laws.

The two lead figures from the ACLU who worked with Casey's CIA to craft a bill criminalizing leaking CIA agents' names were Morton Halperin and Jerry Berman. Halperin, today a senior fellow at George Soros' Open Society, is famous as the former Nixon-Kissinger official wrongly suspected of leaking the Pentagon Papers, and who successfully sued Nixon for illegally wiretapping his phones. Jerry Berman went on to become executive director at the Electronic Frontier Foundation, and then co-founder of the Center for Democracy and Technology, another Silicon Valley-funded lobby front.

Here is Angus MacKenzie's description of how these two leading figures of the civil libertarian establishment colluded with the CIA to bring about the law that eventually led to Kiriakou's jailing:

"[O]n July 13 [1981], Morton Halperin, and ACLU attorney Jerry Berman paid an unusual visit to CIA headquarters for private discussions of the Intelligence Identities Protection Act. Halperin and Berman were convinced that liberal opposition to the bill was weak and and that the Reagan administration would be able to steamroller it through Congress. As they saw it, their best hope was to salvage the situation. Offering a compromise, they tried to convince CIA lawyers to insert language that would retain a partial protection for journalists. Under the compromise, in order to obtain a conviction prosecutors would have to prove that journalists had ‘intent to harm’ intelligence operations. Theoretically, this would have barred prosecution of reporters who were just doing their job. In exchange, Halperin and Berman agreed to switch their position: the ACLU would refrain from opposing the Intelligence Identities Protection Act. Further, Berman and Halperin promised the CIA that their supporters in Congress would not try to delay the bill. It was a historic agreement between the ACLU and the CIA, two old political enemies.
The ACLU's collaboration with the CIA on devising a secrecy bill had a devastating effect on liberals' will to resist the Reagan Right's momentum, just as the old liberal establishment was entering a terminal stage of rot. The compromise bill protecting journalists while selling government leakers down the river consecrated in law a pretty sleazy deal between the media and the National Security State that we now take for granted and rarely question. Everyone in the liberal establishment started caving. As MacKenzie observed:
"Halperin's compromise was a signal that the ACLU would not mobilize its quarter million members to lobby Capitol Hill in defense of the First Amendment rights of government employees or reporters. As the ACLU position became clear in the ensuing months, the traditional liberal coalition against secrecy began to disintegrate both inside and outside Congress. Over the next twelve years, the Reagan and Bush administrations were emboldened to invent new means to control information."
Some surprising things happened as the bill moved through Congress. Rep. Ron Paul, libertarian hero of today's civil liberties crowd, voted "yes" for the Intelligence Identities Protection Act that jailed whistleblower Kiriakou—this despite the fact that his fans always hold up Paul as that rare "principled" politician whose principles and views have never changed.

And on the other side, Sen. Joe Biden led an impassioned failed attempt to kill the same bill that, thirty years later, his administration used to persecute Kiriakou. In a guest op-ed for the Christian Science Monitor, Sen. Biden wrote,

"In the last analysis, a free and inquiring press is the most reliable check the citizens of our nation have against wrongdoing and bad judgment in government, since government, like any individual, is often reluctant to call attention to the errors of its own ways.

"It is therefore a mistake for the Congress to pursue legislation which hinders the press from performing this vital function, as it has in this case." But the most surprising opposition to the bill came from one of its earliest supporters: Senator Moynihan, the Democratic Party's lead neocon. MacKenzie describes how, in early 1982, Vice President (and ex-CIA director) George Bush walked into the Senate in the middle of Moynihan's speech against the bill:

"As Moynihan spoke, Vice President George Bush slipped into the Senate chamber to take up the gavel as president of the Senate. Moynihan interrupted himself to point out Bush's unusual presence, then resumed the debate, noting that when he served as the ambassador to India it was well known that U.S. spies worked in his embassy."
Moynihan noted that embassy spies stood out so obviously from everyone else, "so conspicuous in evidence and well known are they," that it was "almost beyond the capacities of an American journalist in a foreign capital not to know the names of the intelligence community operatives." And then, explaining his final opposition to the bill he initially wrote, Moynihan told the Senate and Vice President Bush,
"I make this point only to make it clear that we are on the edge of making a crime out of the publication of information which is commonly available."
The bill passed in 1982. Only five senators voted against it, all of them Democrats, including Biden and Moynihan. It sailed through the House as well, with the support of libertarian hero Ron Paul. Two Americans have been convicted under the law, including Kiriakou, but the real intent is, of course, silence and secrecy.

Later, in the 1990s, Sen. Moynihan tried to abolish the CIA altogether.

Meanwhile, as the New York Times got wind of the ACLU's ongoing, sleazy collusion with the CIA, it began publishing articles in the Reagan years with headlines like "CIA and ACLU Support Curb on Information", and "Dept of Strange Bedfellows: CIA and ACLU".

One of the ACLU collaborators, Morton Halperin, wound up providing crucial progressive cover for the 2008 FISA Amendments Act, expanding surveillance powers and giving immunity to telecoms caught violating wiretapping laws.

The other ACLU collaborator, Jerry Berman, was named executive director of the Electronic Frontier Foundation in the early-mid 90's. Under Berman, the EFF played a controversial, collaborative role in expanding government surveillance of the Internet. It's an all-too-familiar scenario going back to the compromise rationale behind the ACLU's collaboration with Reagan's CIA, as reported The Economist:

"[A] bill was introduced in Congress that would extend to new communications media, including the Internet, technological means to allow FBI eavesdropping. Known as the Digital Telephony bill, the legislation was opposed by many computer users on the ground that it would invade privacy. The EFF opposed it, too, but calculated that it did not have the political muscle to kill the bill outright. So it decided instead to work behind the scenes, with the bill's sponsors and the FBI, to modify the bill to insert a little more protection for on-line privacy. All this was politics as usual in Washington. But it was greeted with fury in cyberspace. Many felt that the EFF had assisted the passage of a bad law, and betrayed its own principles by negotiating with the 'enemy.'"
And so it goes.

[Three great books were indispensable in helping me research this article: Angus MacKenzie's "Secrets," Kathryn Olmsted's "Challenging the Secret Government" and Rick Perlstein's "The Invisible Bridge". Read them. Feature illustration by Brad Jonas for Pando. ACLU illustration via NSFWCORP.]