In Search of the ICE Agent Who “Outed” Obama’s Aunt

by Jason Dzubow on September 19, 2013

in Asylum Seekers

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Just prior to the 2008 presidential election, the AP broke a story about Candidate Obama’s Aunt Zeituni, a rejected asylum seeker who was living in the U.S. illegally. The source for the story was an unnamed “federal law enforcement official.” At the time, it appeared that the leak was designed to harm Obama’s chances for success in the election. As you may have noticed, it didn’t.

After news of the leak broke, ICE initiated an investigate, and speculation about the source abounded.

"Outing" asylum seekers ain't classy, San Diego.

“Outing” asylum seekers ain’t classy, San Diego.

Fast forward to September 2013 when a heavily-redacted version of the report from the ICE Office of Professional Responsibility was finally made public. The report, which was actually completed in August 2010, states that ICE/OPR identified the leaker, who admitted what he did. However, it does not name names, nor does it indicate whether the leaker was punished. However, from a careful review of the report, some on-line research, and a bit of deduction, we can make a pretty good guess about who leaked Aunt Zeituni’s name and immigration status to the press.

We begin with the initial AP article, which was written by Eileen Sullivan and Elliot Spagat. The article does not name the source of information, but it states that the Aunt’s asylum application was denied in 2004 and she was ordered deported.

The ICE/OPR report indicates that the leaker was interviewed by “OPR/San Diego” in May and June 2010. The leaker admitted that he spoke with a male reporter (the names of the journalists are redacted, but it is most likely Elliot Spagat). The leaker stated that the disclosure was an “error in judgment.” He also claimed that he had no “political motivations.” Instead, he revealed the aunt’s illegal status because it was “very interesting information” and he thought “the American public has a right to know that.”

According to the report, the leaker had spoken with the reporter before and had a history of getting together with him socially. The leaker was first introduced to the reporter in 2007 by someone at the DHS Office of Public Affairs (which is the “primary point of contact for news media, organizations and the general public seeking information” about DHS). The leaker did two or three interviews with the reporter in the course of their relationship.

From this, we can glean some useful information about the source of the leak.

First, since the interview was conducted by OPR/San Diego, we can guess that the leaker is in San Diego. This conclusion is supported by the fact that the reporter (Mr. Spagat) is based in San Diego, and apparently the reporter and the leaker had met up socially a few times.

Second, the fact that the journalist had interviewed the leaker for two or three prior stories, and that the leaker was purposefully introduced to the journalist by the Office of Public Affairs points to a higher-ranking ICE officer. A lower-ranking employee would probably not be introduced to a journalist by the Office of Public Affairs or interviewed several times.

Since the leaker admitted to having been interviewed “two or three” times between 2007 (when he met the journalist) and October 31, 2008 (the date of the leak), we can look for names of ICE agents who appear in Mr. Spagat’s articles during this period.

Some on-line research revealed a few names, though one stood out because he appeared in several articles by Mr. Spagat in 2007 and 2008, but did not appear in any article after the election. While this person was the most likely suspect, I certainly did not have enough evidence to be sure. 

I thought the best approach would be simply to ask the person. I found his email, and sent the following message:

I have been investigating the disclosure of President Obama’s aunt’s case prior to the 2008 election. My research has led me to believe that you informed AP reporter Elliot Spagat about the aunt’s case. I am writing to ask whether you would be willing to discuss this situation.  Please let me know.

A few days later, I received this response from an attorney in Washington, DC who specializes in national security law:

My friend [redacted] contacted me about your e-mail inquiring about the disclosure of President Obama’s aunt’s case prior to the 2008 election. As I am sure you can imagine as a current ICE agent [redacted] would never be permitted to discuss a specific case without authorization from his agency. Respectfully, therefore, he can not respond to your e-mail.

Since this email came from a lawyer (and a pretty fancy lawyer at that) instead of DHS Public Affairs, and since it was not a denial, I suppose it provides some additional support for my theory about the leaker’s identity, but it was still not enough. I responded as follows:

Thank you for writing… I understand his position. Given the evidence I currently have, it seems very likely to me that he is the person who leaked the information. That said, it is currently not my intention to name him in the blog post (even as a suspect), as I do not wish to implicate anyone unless I am 100% certain about my information. If anything changes in that regard, I will contact you before I publish anything.

And that is as far as I got. So I guess I will not be winning any prizes for investigative journalism. While I feel that the public has a right to know who violated Aunt Zeituni’s confidentiality, I believe it would be wrong to accuse someone by name without stronger proof.

The OPR report indicates that “no prosecutorial actions” were taken in the case. I suppose that means that the leaker was not punished. He could have been: It is a violation of the law to violate an asylum seeker’s confidentiality. See 8 C.F.R. §§ 208.6(c) & 1208.6(c). Government officials who violate this provision can be fired. See Lewis v. Dep’t of Justice, 34 Fed. Appx. 774 (Fed.Cir.2002).

To me, it is ironic that the leaker’s confidentiality received more protection than that of the asylum seeker. However, the fact that ICE investigated the leak and took it seriously will, we can hope, deter others from revealing such confidences in the future.

{ 3 comments… read them below or add one }

James A. Roberts September 19, 2013 at 2:04 pm

I suppose that there could be no federal cause of action or tort claim based upon the violation of 8 C.F.R. §§ 208.6(c) & 1208.6(c) because only the aunty would have standing. However, it does appear that every applicant for asylum has suffered harm as a result because it shows that 1208.6(c) is weak. How often have you been asked: tell me honestly, I don’t want to get (x) in trouble….are asylum cases truly confidential ?”

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Lynn Garfinkel September 19, 2013 at 12:00 pm

Assuming you’re right, how does he still have his job? That suggests to me that ICE didn’t take the leak that seriously. Solely out of curiosity, did that fancy DC attorney say anything to try to prevent you from revealing his name? I respect your need for certainty prior to naming him. But geez, it is ironic. Too bad the leaker didn’t share your integrity. Perhaps, however, he shared the feeling of irony as POTUS was reelected, Aunty was granted asylum, and he needed a fancy DC attorney. Speaking of fancy, that was some fancy (investigative) foot work.

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Jason Dzubow September 19, 2013 at 12:34 pm

Hi Lynn – All good questions. The lawyer did not try to stop me from publishing the name (I posted his entire email to me), though I suppose receiving a “friendly” email from a lawyer could be viewed as intimidation (though I do not view it that way). Actually, I think I could publish the name without any danger of liability. It’s just that I am not 100% certain about my conclusion, and if I am wrong (which I doubt), it would be very unfair to the ICE agent.

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