Last week we broke the story of the CIA issued legal threats against producers Ray Nowosielski and John Duffy on their discovery of the identities of the two key CIA analysts who executed the Tenet-Black-Blee cover-up in the case of two key 9/11 hijackers. The analysts were referred to only by first names initially, but were going to be fully named in a follow up segment. It appears the story is still developing, but we now have further details on the case, an analysis by an expert producer, and a few comments on assessing the nature and possible implication of this move by the CIA.
I asked Mr. Nowosielski how the CIA was informed about the schedule and the content of their upcoming segment, and he provided us with the following details:
We emailed CIA Public Affairs on Thursday morning telling them of our intention to name two current agents in our journalism piece and explained the context of their use — the things they were accused of. We also explained that their names had been deduced through open-source materials and that our sources had told us they were working from headquarters.
As for the CIA’s reaction and response Mr. Nowosielski recounted the following:
Their media spokesperson called back almost immediately. After a brief discussion, we emailed him the script for official reply. We also requested an interview with the two to ensure that we were telling the full story accurately. The reply email began “This is off the record:” and then informed us that we may be violating federal law by including those two names. When we asked him to cite the law, we were told it was the Intelligence Identities Protection Act. This and follow up calls occurred on Thurs, Fri, and Sat, until we explained that we were not recognizing “off the record” in our official interactions with the Agency. We have heard nothing further since.
My own immediate response to the way in which CIA responded to the producers can be summed up in three questions:
1- Is this one of those fairly common cases where the government agency tries its ‘bluffing tactic’ to see whether that suffices to intimidate and stop the whistleblower or reporter in question?
Because the threat is issued by e-mail, and ludicrously, it starts off by stating ‘off the record.’ When confident and on solid ground the agencies come after the targets armed with official- legal letters or even court orders. In my days, in my own case as a government whistleblower, and later as the director of NSWBC dealing with many intelligence agencies whistleblowers and also reporters, I have experienced the government agency ‘Bluffing Tactic’ more than a few times. For example, the FBI tried to stop my interview with CBS-60 Minutes and later attempted to stop the airing of the segment, but when challenged and invited to go ahead and take legal action, they changed their mind; they went away.
2- Is this an attempt by the CIA to buy needed time to take further action against the producers through the Department of Justice?
One thing I know is that government bureaucracy takes time. It takes time to get ‘things done’ when it comes to the government. In this case, the CIA would have to bring and make the case to the Justice Department. The DOJ then would have to go through its own bureaucracy and reviews to decide whether it could turn this into a legal action via the courts. Thus, this could possibly be a case of the CIA trying to buy more time to translate its ludicrous ‘off the record’ threat issued by a casual e-mail into a real threat with some teeth. If so, wouldn’t that mean a window of opportunity for the producers to release the information? Or not?
3- What are the real legal liabilities facing the Producers, since the names of the two culprit CIA analysts are already out in public records? Further, with other sources in addition to the public records ‘outing’ the names of the analysts who happen to be involved in possible criminal actions, what level of threat are the producers faced with?
Again, based on my own experience and the experiences of many government intelligence agencies whistleblowers, the CIA would have to first classify the already public information-documents out there revealing the identities of the two CIA analysts; classification after the fact. Next, they would have to legally pursue the other involved sources who have either confirmed or released those names. The CIA hasn’t done that. At least not yet. And what does this mean? Does it mean the producers still have the burden of abiding by the casually issued ‘off the record’ e-mail by the CIA? Or not?
We are still waiting for further analysis by our legal experts and other intelligence sources. Meanwhile I asked our media advisor Kristina Borjesson to give us her take and expert analysis on this case. Internationally acclaimed for her work, Ms. Borjesson has produced for major American and European television networks and published two groundbreaking books on problems of the U.S. press: Into the Buzzsaw: Leading Journalists Expose the Myth of a Free Press and Feet to the Fire: the Media After 9/11, Top Journalists Speak out. Her awards include an Emmy and Murrow Award in TV, the National Press Club’s Arthur Rowse award for Media Criticism, and two Independent Publishers Awards for her books.
Here is the analysis of this case by Ms. Borjesson for Boiling Frogs Post:
The Pitfalls of Due Diligence for Deep Journalism
When independent filmmakers Ray Nowosielski and John Duffy interviewed Richard Clarke in 2009, the former counterterrorism czar dropped a bomb on camera. Clarke accused former CIA head George Tenet and two other CIA officials, Cofer Black and Richard Blee of withholding critical intelligence from the FBI, DOD, White House and Immigration on the presence in the US of two alleged 9/11 hijackers well before 9/11. In their film, “Who is Richard Blee?” Nowosielski and Duffy also identify two CIA analysts who participated in the cover-up.
After interviewing Clarke, the filmmakers tried for more than a year to interest media outlets in their bombshell information. “We pitched everywhere and were told no,” says Nowosielski, “We always held out hope to get funding for it to be a real documentary, which we thought [the subject] deserved.” Finally, the filmmakers settled on putting the film out as a podcast.
The CIA is now holding up the release of the recording as a result of the filmmakers doing due diligence as reporters. It is a standard practice of good journalism to get in touch with subjects that other subjects in a print or TV news piece are talking about if the talked-about subjects are being accused of malfeasance or illegal or unethical behavior. It is only fair to allow accused subjects to answer and/or defend themselves. It is also then incumbent upon the reporter to get to the bottom of who exactly is telling the truth—the accuser or the accused.
In this case, the filmmakers contacted CIA public affairs to give the two CIA analysts a chance to defend themselves. They followed proper procedure in contacting the CIA public affairs people, because public affairs (not the analysts) are authorized to decide whether to speak on behalf of the analysts or to allow the analysts to speak for themselves.
Nowosielski and Duffy went one step further in their due diligence. They sent their entire script to CIA public affairs. “We sent the full piece because we wanted them to know these people were going to be outed. So if they’d been sent in some deep cover thing, we wanted to give them time to pull those people out of those positions. We thought maybe they would be compelled to defend themselves, because people from the 9/11 commission, the FBI…even Tony Shaffer from Able danger [were] piling on, so we thought maybe we’re misinterpreting this story or they need to defend themselves.”
No doubt the producers did all their digging and proof-gathering into what the CIA analysts allegedly did before calling CIA public affairs. You call public affairs AFTER you have the goods on their employees, not before getting the goods or to get the goods. It’s an ethical protocol, but usually one that is done after it’s too late for public affairs to shut down sources or otherwise interfere in the reporting process. In this case, contacting CIA public affairs kept the producers on the straight and narrow journalistically, which is a good place to be at all times when reporting on highly sensitive issues.
CIA public affairs responded with an emailed threat. “Off the record,” the CIA’s spokesperson wrote, Nowosielski and Duffy might be violating the Intelligence Identities Protection Act by outing their analysts. The penalty for outing CIA agents without using classified sources includes fines and/or prison time. The spokesperson’s use of the “off the record” line is a ploy. When journalists go off the record, it is usually a mutually agreed upon pre-arrangement. The CIA’s public affairs person’s attempt to silence Nowosielski and Duffy didn’t work but it has given them pause.
The filmmakers are withholding the release of “Who is Richard Blee?” so the threat, even though it has no legal force, has for now had the desired effect. But the story probably won’t end there. Nowosielski and Duffy are currently in assessment mode. The question they are asking themselves, says Nowosielski, is “Are we in a position that we want to face the heat involved in that? We’re in no rush; we want to make a good decision.” Meanwhile, they’re getting advice from a number of friendly legal quarters.