Attorney General Eric Holder Jr. has tapped the Justice Department's most feared prosecutor, Patrick Fitzgerald, to lead a sensitive investigation into whether defense lawyers at Guantánamo Bay compromised the identities of covert CIA officers. The probe was triggered by the discovery last year of about 20 color photographs of CIA officials in the cell of Mustafa Ahmed al-Hawsawi, an alleged financier of the 9/11 attacks, say three current and former government officials who asked not to be identified talking about an ongoing case.
The photos included "paparazzi style" snapshots of covert CIA officers on the street and in other public places, says one former official, an indication that private investigators had taken them on the sly to identify agency interrogators. When told of the discovery, CIA officials immediately grew alarmed that the photos had been shared among the 9/11 defendants, including alleged mastermind Khalid Sheikh Mohammed. (The judge in charge of the military-commission case at the time had ruled that because some defendants, including Mohammed, were representing themselves, they could meet privately with their alleged co-conspirators and share material relevant to their defense.) The photos in al-Hawsawi's cell were not captioned with the agents' identities. But "there was real concern" that the pictures could be used to identify covert officers, resulting in agents becoming the targets of Qaeda revenge plots, says the former official. "These guys are killers--and KSM has made it clear they're going to look for retribution."
How real a threat the incident posed is far from clear, nor is it known which defendant got the photos first. But after the CIA filed a criminal referral with Justice, the FBI dispatched agents to Guantánamo to question military defense lawyers. The military lawyers representing al-Hawsawi were soon cleared. But one focus is on civilian lawyers retained by the John Adams Project--an effort the American Civil Liberties Union runs to provide topnotch counsel for the most high-profile Gitmo detainees. Anthony Romero, the ACLU's executive director, confirms the project hired private investigators to track down CIA officers involved in aggressive interrogation tactics. "It would be an essential part of any defense to cross-examine the perpetrators of torture," he says, adding, "To our knowledge, the 9/11 defendants were not told the identities of the CIA officers."
Lawyers in Justice's National Security Division--the same unit charged with prosecuting the 9/11 defendants--were running the probe initially. To avoid any conflict (and to fend off GOP attacks of his counterterrorism policy), Holder recently turned to Fitzgerald, the U.S. attorney in Chicago, who has undisputed expertise in the law governing the exposure of undercover intelligence officers: three years ago, he won his most celebrated case, securing the conviction of I. Lewis "Scooter" Libby, Dick Cheney's former chief of staff, for lying about the outing of CIA agent Valerie Plame.