Pentagon investigators concluded that a senior Defense Department official who's been mentioned as a possible candidate to be the next CIA director leaked restricted information to the makers of an acclaimed film about the hunt for Osama bin Laden, and referred the case to the Justice Department, according to knowledgeable U.S. officials.
The Justice Department received the case involving Undersecretary of Defense for Intelligence Michael Vickers in September, but so far it's declined to launch a criminal prosecution, said two senior U.S. officials who requested anonymity because of the sensitivity of the matter.
The case involved a determination by investigators of the Pentagon's inspector general's office that Vickers provided the makers of the film "Zero Dark Thirty" with the restricted name of a U.S. Special Operations Command officer who helped plan the May 2, 2011, raid on bin Laden's hideout in Pakistan, one official said.
The identities of special forces personnel can be classified in certain circumstances and making them public is against the law, according to experts.
Vickers, a former Army special forces operator and onetime CIA paramilitary officer, is the top intelligence adviser to Defense Secretary Leon Panetta and oversees the Pentagon's vast intelligence operations. He's been frequently mentioned as a candidate to replace retired Army Gen. David Petraeus as CIA director.
"Mike Vickers is an outstanding defense and intelligence professional and is well respected inside the Department of Defense and the intelligence community," Pentagon spokesman George Little said.
It was unclear whether the Justice Department review could hurt Vickers' chances of being nominated to the CIA post. A Justice Department spokesman declined to comment on the matter.
"When it comes to even the slightest hint that there may have been an unauthorized disclosure of classified information, there's actually little choice but to contact Justice," a senior defense official said. "That doesn't mean they will do anything with it. This is a routine practice."
The Pentagon inspector general's office is continuing to examine whether there were any other leaks of restricted information to the makers of the film. In a Dec. 4 letter denying a McClatchy Freedom of Information Act request for the findings, the office said the material was "currently part of an open investigation." A spokeswoman said Monday that the report "has not yet been finalized and issued."
Even though the inquiry was launched at the request of Rep. Peter King, R-NY, the chairman of the House Homeland Security Committee, the Defense Department Inspector General's Office hadn't informed King or any other lawmaker of its findings by midday Monday, a politically risky decision that could ignite charges that officials were trying to protect President Barack Obama during his tough re-election battle.
King told McClatchy that the delay in notifying him "raises the question" of whether officials were trying to put it off for political reasons, but he wanted to see the full report before drawing any conclusions.
"I'm not looking for anyone to be indicted," he said. "But the IG does not make referrals to the Justice Department as a matter of routine. To me the fact that any information at all would be given to Hollywood producers by this administration is disgraceful."
"If it's wrong enough or questionable enough for the IG to refer it to the Justice Department, that means it shouldn't have been done."
The film, by director Kathryn Bigelow and screenwriter Mark Boal, originally was set for release just weeks before the Nov. 6 election. But it was delayed amid Republican complaints that it could bring Obama votes by glorifying the bin Laden operation. The premier was held last week and the film is due for a limited public release on Wednesday.
The senior defense official, who requested anonymity because he wasn't authorized to discuss the matter publicly, wrote in an email that Pentagon officials don't think the case "will amount to anything." He pointed out that the Pentagon deemed as "unclassified" a transcript of a July 15, 2011, conversation among Vickers, Bigelow and Boal in which Vickers identified the U.S. special forces planner by name as someone who could be made available to brief the filmmakers. The transcript was released to Judicial Watch, a conservative watchdog organization, in a Freedom of Information Act lawsuit.
The investigators found no evidence that White House officials were involved in any leaks of classified materials to the filmmakers, according to U.S. officials familiar with the findings. They reached that conclusion, however, without interviewing any White House officials or Panetta, who was the CIA director at the time of the bin Laden raid. Panetta reassured Congress in June – before the investigators reached their findings – that no classified information had been released to the filmmakers.
A second U.S. official blamed bureaucratic handwringing for the delay in notifying King, not an orchestrated effort to protect the White House.
"This does not appear to be a cover-up or a wag-the-dog media stunt," the U.S. official said. "Rather, this is about who gets to break the law and leak information for their own benefit."
The case is emblematic of an ongoing debate over what information the government deems to be secret, who can disclose classified material and to what degree leaks of such information jeopardize national security.
Obama's Justice Department has prosecuted a record number of U.S. officials for leaking secret information to the news media that critics contend shouldn't have been classified or did no harm to national security. The most prominent case involves the ongoing prosecution of Army Pfc. Bradley Manning, who's accused of providing thousands of secret and confidential diplomatic and military documents to WikiLeaks, the online whistle-blowing organization.
In a Dec. 6 report, a presidential advisory panel that studied the classification issue found that "the current classification system is fraught with problems. In its mission to support national security, it keeps too many secrets, and keeps them too long; it is overly complex; it obstructs desirable information sharing inside of government and with the public."
"A culture persists that defaults to the avoidance of risk rather than its proper management," the Public Interest Declassification Board said in recommending an extensive overhaul of the system.
Steven Aftergood, who runs the Federation of American Scientists' Project on Government Secrecy, said the release of the U.S. special forces planner's identity "would most likely be considered sensitive, not for national security reasons, but for personal security reasons. If his name became public, it might raise security considerations for him as an individual."
"The boundaries of what is and what is not classified are soft and changeable. In the abstract, this person's identity might be sensitive but unclassified," he continued. "It's very hard to say categorically that such information either would not or would be classified."
King requested the investigation in August 2011 over concerns that classified information may have been given to the makers of the bin Laden movie that might have compromised tactics used by U.S. special forces and the methods used by the CIA to gather intelligence.
Bigelow has said that "to the best of our knowledge" she and Boal didn't receive classified information. "We never requested classified information or was I aware that classified information was coming my way," she said in an interview with CBS earlier this month.
Among its other conclusions, the Pentagon investigators determined that White House and Pentagon officials discussed allowing the filmmakers to interview Vickers. They also found that the meeting with the special operations planner never took place, and that no secret special operations tactics and techniques were revealed to the pair.
One of the filmmakers attended a June 2011 CIA award ceremony that recognized the Navy SEALs and CIA officers involved in the raid, but no effort was made to protect the special operators' identities, investigators found.
The investigation will create more controversy for the movie, which had its premiere Dec. 10 in Los Angeles to widespread acclaim. Human right groups and other critics are complaining that scenes of the CIA's brutal interrogation of al Qaida detainees erroneously imply that torture provided crucial intelligence that led the agency to bin Laden's hiding place in Abbottabad, Pakistan.
King requested the investigation in letters to the Pentagon and CIA inspectors general in which he cited a New York Times report that Bigelow and Sony Pictures Entertainment Inc. were given "top-level access to the most classified mission in history." He also noted Bigelow's reported attendance at the CIA ceremony.
King asked the inspectors general to examine whether there had been any consultations between White House, Defense Department and CIA officials on providing the filmmakers access to SEAL team members or undercover CIA officers. He also requested that they look at whether any secret techniques or tactics of the SEALs or the CIA had been compromised and whether leaks about details of the raid to the news media had hurt the CIA's intelligence collection methods or human sources.
The Pentagon Inspector General's Office informed King in December 2011 that it was launching a formal investigation "into actions taken by Defense Department personnel related to the release of information to the filmmakers." The CIA Inspector General's Office apparently declined to investigate, telling King in a Nov. 8, 2011, letter that the agency's Office of Public Affairs was developing a written policy "that will govern future interactions with the entertainment industry."
In a May 23 letter, King wrote to Vickers that documents obtained by Judicial Watch in its Freedom of Information Act lawsuit "raise serious questions regarding your central role in providing classified and sensitive information to individuals without appropriate security clearances." The documents included emails and the transcript of the conversation that Vickers had with Bigelow and Boal in which Vickers disclosed the name of the U.S. Special Operations Command planner.
In a separate letter the same day, King expressed concerns to CIA Deputy Director Michael J. Morell about his role in the case. Morell became the acting agency chief after Petraeus resigned last month, and his name is among those mentioned as a top contender to replace Petraeus.
In his letter to Morell, King said the Judicial Watch documents showed that the CIA had given Bigelow and Boal permission to visit at least six CIA facilities. They included secure vaults at the National Counterterrorism Center and possibly "a sensitive, covered facility" outside the CIA headquarters campus in Langley, Va., King wrote.
The issue provided fodder during Obama's election battle against former Massachusetts Gov. Mitt Romney, with a group of politically conservative former special forces officers producing a video in which they accused the president of taking too much credit for bin Laden's death and allowing too many leaks of secret information about the hunt.
The Public Interest Declassification Board report
By Marisa Taylor and Jonathan S. Landay McClatchy Newspapers