Ex-CIA officer heads to court for second time over proposed book

By Jason Vest

October 13, 2005

A former senior CIA officer asked a federal court for a second time Wednesday to expedite a lawsuit he filed against the CIA earlier this year, charging that the agency is hampering publication of his forthcoming controversial memoir by failing to abide by its own publication review rules.

According to filings with the U.S. District Court for the District of Columbia, Gary Berntsen, the CIA's top officer in Afghanistan during al Qaeda's 2001 escape from Tora Bora, submitted his book to the CIA's Publications Review Board on May 17, 2005, one month before he left the agency after a nearly 23-year career. The book, to be published by Random House, is tentatively titled Jawbreaker, a reference to the code name for CIA Counterterrorist Center teams operating in Afghanistan between 1999 and 2001.

Like all CIA employees, Berntsen is bound by secrecy agreements that mandate a PRB review of materials for publication. Though the PRB is supposed to return manuscripts with any necessary changes or redactions after 30 days, Bernsten, according to the filings, received nothing by June 17. On July 28, Berntsen and his attorney, Roy W. Krieger, sued the agency for release of the manuscript, and asked that the CIA be forced to respond to the suit within five days instead of the customary sixty.

That motion was denied, but on August 23, a full 98 days after the manuscript was submitted for review, Jawbreaker was finally returned to Berntsen---accompanied by a 22 page list of redactions desired by the PRB. Though much of the material the PRB wanted cut--everything, according to Krieger, from "single words to nine full pages of text"--has been previously declassified and has already appeared in other publications, Bernsten amended his manuscript, and sent it back to the PRB on Sept. 1.

But well over another 30 days later, Berntsen is once again still awaiting word from the CIA. Jawbreaker's original Oct. 27 publication date has been pushed back to at least Dec. 27. According to Krieger, the case is not just about violations of administrative procedure, but constitutional issues as well.

"One of the central purposes of the First Amendment is to allow publication to serve as both a critical source of information for the public as well as an important government watchdog," Krieger wrote in yesterday's filing. "[Berntsen] has written a book that contains unique information regarding his experiences. Although [Berntsen] properly and fully abided by the pre-publication review requirements imposed by his secrecy agreement, [the CIA] has...frustrated the publication of the book by failing to timely deliver his draft manuscript and by asserting unsupportable classification decisions."

Citing the pending publication review, Berntsen and his attorney have remained largely silent about the book's content. However, in late July and early August interviews with the Associated Press and Newsweek and a more recent interview with Newsday, Berntsen has revealed that part of his book refutes assertions made by President Bush and Gen. Tommy Franks, former head of U.S. Central Command, that U.S. forces weren't sure whether Osama bin Laden was present at Tora Bora, Afghanistan, in Dec. 2001. (Though some administration officials continue to cast Tora Bora as a minor setback in the war on terrorism--often citing the uncertainty of bin Laden's presence--the battle is widely regarded as one of the U.S. military's greatest post-9/11 failures, in which Pentagon leaders ignored CIA critiques of its battle plan and subsequently allowed most of al Qaeda to escape.)

According to a July 28 AP dispatch, Bernsten took issue with assertions made by in a 2004 presidential debate by both Bush and Democratic presidential candidate John Kerry about Tora Bora, saying their debate "did not represent the reality of what happened on the ground." In its Aug. 15 edition, Newsweek reported that "Berntsen says he had definitive intelligence that bin Laden was holed up at Tora Bora--intelligence operatives had tracked him--and could have been caught." Similarly, in an Aug. 8 CNN interview, Krieger said that "there were a variety of intelligence collection methods that were used to establish [bin Laden's] presence" in Tora Bora, and that as the "ground senior intelligence commander, if anyone would know if Mr. Bin Laden was in Tora Bora, it would be my client, Mr. Berntsen." Berntsen's book is not devoted exclusively to Afghanistan, but his whole 23-year career. According to open sources and interviews with intelligence community figures, Berntsen, a Smithtown, N.Y., native, became a case officer in the CIA's directorate of operations in Oct. 1982, and went on to receive two of the agency's highest awards, including one for his role in preventing the assassination of India's prime minister in 1996. A Farsi speaker who worked the agency's Iranian account for a number of years, Berntsen was also posted to several Middle East stations, and was a key player in the agency's efforts after the 1988 East Africa embassy bombings. Berntsen also frequently is mentioned--as "Gary 2"-- in the last 75 pages of fellow ex-CIA officer Gary Schroen's First In: An Insider's Account of How the CIA Spearheaded the War on Terror in Afghanistan. Berntsen, who was trained by Schroen at the CIA's Camp Perry, Va., training facility, took over from him as Jawbreaker team leader in late Oct. 2001.

"A lot of people are looking forward to reading Berntsen's book, because it has to pick up where Schroen's left off," said one veteran CIA officer.


By Jason Vest

October 13, 2005

http://www.govexec.com/defense/2005/10/ex-cia-officer-heads-to-court-for-second-time-over-proposed-book/20405/