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On Dec. 23, 1975, Richard Welch was gunned down by three assailants outside his home in Athens, Greece, as he was returning from a Christmas party. The gunmen were never found. But it was clear that this was an assassination. Welch was station chief for the Central Intelligence Agency in Greece. His name had been included a month earlier in a list of CIA agents published by an Athens newspaper. This list was apparently derived from one in CounterSpy, an American magazine. Thus begins a tale that reads like a Greek drama, with fathers inadvertently wounding their sons. At the time of Welch’s assassination in 1975, congressional investigations had the CIA on the ropes. So President Gerald Ford brought in a new director of central intelligence, George H.W. Bush. Bush turned the tide in the CIA’s fight with Congress, citing Welch’s death and railing against disclosures of the names of secret agents. Later, as vice president, Bush helped win passage of the Intelligence Identities Protection Act of 1982, which makes it a crime to reveal agents’ names. Now, ironically, Bush’s son is bedeviled by allegations that high-level officials in his administration breached the very protections that his father championed. Last Friday, special prosecutor Patrick Fitzgerald revealed an indictment of I. Lewis “Scooter” Libby Jr., the vice president’s chief of staff, on charges growing out of Fitzgerald’s investigation into alleged violations of this law. President George W. Bush’s problems started when syndicated columnist Robert Novak wrote about Joseph Wilson IV, a critic of the Bush administration’s claim that Iraq had been shopping for nuclear materials for a bomb. Novak’s column said that Wilson’s wife was an “Agency operative” and identified her by her real name, Valerie Plame. This was the same kind of disclosure that had been made about Welch in 1975. The Intelligence Identities Protection Act was passed after Welch’s assassination to punish both journalists and leakers in such cases. Thus, Novak’s column raised questions under criminal law. Had he violated the law? Had someone in the administration violated the law by revealing Plame’s identity to Novak? For the current Bush administration, the Intelligence Identities Protection Act has become far more than some technicality from the past. A quarter-century ago the law was an important part of the senior Bush’s successful strategy to stop congressional probing into intelligence agency abuses. Now, the son may be caught in a trap set by his father. AN AGENCY IN TROUBLE Congress was pecking at the CIA in 1975 because President Richard Nixon had asked the agency to cover up the Watergate break-in and because there were rumors of dark secrets at the secret agency, including the assassination of foreign leaders, U.S. citizens being spied on, and agents posing as journalists. Ford, the new president, had tried to head off these investigations by directing Vice President Nelson Rockefeller to launch a high-level inquiry. But the Rockefeller Commission’s report didn’t satisfy Congress. The Senate and the House created select committees to investigate intelligence abuses. For months, newspapers were filled with headlines about the abuses being uncovered. The Washington Post of Jan. 7, 1976, noted that Welch’s murder had come at a time when “the public stock of the CIA was at the lowest point in its 27-year history.” But things were about to change. Shortly before the Welch assassination, Ford had nominated Bush to head up the CIA. Bush had no intelligence background, but he had been a congressman and chairman of the Republican National Committee, giving him familiarity with the political ways of Washington. AN AGENT DEAD The CIA and its backers were outraged over the public outing of Welch and blamed it for his death. Almost immediately, they began their counterattack. Ford and CIA Director-designate Bush conspicuously attended Welch’s funeral, which was described in The Washington Post‘s Jan. 7, 1976, edition as “a rare and glittering tableau of the American national security establishment.” The CIA had asked the Justice Department “to investigate whether federal laws were violated in publication of Welch’s name.” And even before the funeral, House Republican Whip Robert Michel of Illinois said he planned to push legislation making it a federal crime to publicly identify undercover American intelligence agents. And Bush kept up the pressure. According to The New York Times of Jan. 31, 1976, when Bush was sworn in as CIA director, he told agency employees that he “was determined to protect intelligence agents who risk their lives �only to have some people bent on destroying this agency expose their names. This must stop.’ “ Two weeks later, he gave an interview to the CBS program “60 Minutes.” According to the Times‘ Feb. 16, 1976, issue, when asked about a request by the Senate Intelligence Committee for the names of journalists who worked for the CIA, Bush said he planned to refuse the request. It was not, Bush said, that he didn’t trust the senators, but he doubted the staff’s ability to keep the names secret. (I was a nonleaking lawyer on the Senate committee staff.) The Times wrote: ” �People can come up dead’ when such unintended disclosures are made, Mr. Bush said. �I deplore leaks. Now they come out of C.I.A. sometimes, too . . . and my own view is that we need some kind of legislation, very, very carefully drawn, to have penalties on those who leak for their own reasons, leak classified information.’ “ This strategy of implying that Welch’s assassination was somehow related to the congressional investigations as a way of stopping those investigations proved successful. A story in The New York Times on Feb. 29, 1976, concluded: “There has been a perceptible change in the political atmosphere here [in Washington] which has left Congressional critics of the intelligence agencies in confusion and disarray. . . . The turning point in public opinion . . . appears to have been shortly after the murder of Richard S. Welch. . . . [I]n the case of the House committee [on Intelligence], it has become the investigated rather than the investigator.” A Sept. 12, 1976, New York Times wrap-up of the probes concluded: “The agency [CIA] began these searching investigations hanging on the ropes, and clearly emerged the winner.” The article noted that there was no connection between the congressional investigations and Welch’s assassination and said there might not even have been a connection between his death and the publication of his name in a Greek newspaper, since “he was a relatively well-known figure in Athens.” The Times observed, however, that “No single event did more to turn public opinion against the investigations than the Welch affair.” THERE OUGHT TO BE A LAW Over the next several years, Congress considered whether a new law was needed to criminalize the publication of the names of covert agents. By 1982, with George H.W. Bush now vice president, the moment had come. The legislation was passed that June. The Senate report makes it clear that the Welch assassination in Athens six and a half years earlier was the genesis of the law. Over the years the main point of contention had not been over targeting government employees who outed secret agents, but whether journalists too could be punished if they engaged in a “pattern of activities” aimed at outing covert agents for the purpose of harming U.S. intelligence. According to The New York Times‘ March 18, 1982, edition, the Reagan administration ran an “intense lobbying effort” in support of such an amendment to the bill: “Vice President Bush, himself a former Director of Central Intelligence, presided over the vote and was credited by supporters of the amendment for winning at least six uncommitted votes.” Bush’s assistance in breaking this particular logjam was important because the amendment passed with only a 55-39 vote. And so it came to pass that, in 2003, the same Intelligence Identities Protection Act, a law that the senior Bush had promoted, was used to appoint special prosecutor Fitzgerald. There is no small irony in all this. The accomplishments of the father have come back to haunt the son. And Fitzgerald, rather than Sophocles, is writing the script.
James H. Johnston is a D.C. lawyer and frequent contributor to Legal Times .

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