Plame Wars

Submitted by The Dubya Report on

Updated July 20, 2007 1

On Wednesday, January 28th, 2004, a British judicial inquiry released its report clearing the Blair government of having intentionally misrepresented the threat of Iraqi weapons in a September 2002 intelligence document that was used to make the case for war to Parliament and the British public. A key claim in the document was that some weapons could be launched within 45 minutes. After meeting with Dr. David Kelly, an arms expert in the British Ministry of Defense, BBC reporter Andrew Gilligan had reported that Blair spokesman Alastair Campbell was responsible for the "45-minute" claim, and that Campbell knew it to be false. Campbell denied Gilligan's allegations and demanded a retraction, triggering a media dispute during which the government covertly leaked, and subsequently publicly confirmed David Kelly's name as Gilligan's source. Kelly was summoned to testify at a parliamentary inquiry into the Iraq war, and was subsequently found dead with his wrists slashed. Prime Minister Blair immediately called for an inquiry into his death, and it was that investigation -- led by Lord Hutton, a senior judge -- that issued its report this week. In addition to absolving the Blair administration of having knowingly misrepresented the case for war in the 2002 dossier, the Hutton report cleared the government of responsibility for Dr. Kelly's death, finding that it was a suicide. An internal BBC document obtained by the Observer (UK) claims that the Hutton report omitted evidence and takes issue with its legal conclusions.

The Hutton inquiry report was released in the same week that David Kay, the US's chief Iraq-weapons investigator, testified before the Senate Armed Services Committee, having resigned the previous week. Kay testified that Iraq had no large stocks of biological or chemical weapons, and had attempted but failed to revive its nuclear weapons program.

Commentators around the world have cited parallels between the Hutton inquiry and the investigation of the Bush administration in the leaking of undercover CIA agent Valerie Plame's identity to columnist Robert Novak and others. Both investigations have at the core an issue of the relationship between government administrations and their intelligence agencies. Plame's husband, former Ambassador Joseph Wilson, publicly contradicted the Bush administration's claim that Iraq had sought to purchase uranium in Africa. Wilson has suggested that the leaking of his wife's identity was intended not so much to intimidate him, but to deter other dissenters within the administration from going public. An unidentified "senior administration official" admitted to the Washington Post weeks after the leak to Novak that "Clearly, it was meant purely and simply for revenge."

The Post's source would not identify the leaker or the other reporters who might have been contacted. Early speculation centered on three individuals who would have had access to the classified information about Plame's CIA assignment: Bush political adviser Karl Rove, Cheney chief-of-staff Lewis Libby, or National Security Council (NSC) member Elliot Abrams (who pleaded guilty to withholding information from Congress during the Reagan administration). With varying degrees of firmness, White House spokesman Scott McClellan has denied that the leaker was any of these suspects. On September 30, however, the UK Guardian's Julian Borger reported in an audio dispatch that journalists were saying privately that it was Karl Rove to whom they had spoken.

The whole story regained a measure of public attention late last month when the New York Times reported that a group of former CIA operatives had taken the unusual step of petitioning Congress to open an inquiry into the disclosure of Plame's identity; the same day Time magazine reported that a Washington, DC grand jury began hearing testimony in the matter.

The Twenty Years War

Some observers have suggested that legal skirmishes in Washington, DC are almost always the working out of other, deeper, political trends and conflicts. Thus Watergate was not about burglary but the political establishment rising up against Richard Nixon's lust for power; Clinton's impeachment less about perjury per se than about the clash of liberal culture with Bible-belt patriarchal "family values." Viewed from this perspective the roots of the Plame affair are in the US government's 20-year old policy conflict about Iraq.

Throughout this period the CIA and the State Department have tended to advocate using secular forces within Iraq, including from time-to-time Saddam Hussein and his Baath party, to counter more radical elements in the area: the Muslim Brotherhood, the Shiites, and radical Palestinians. Against this policy, neo-conservatives including current Vice President Dick Cheney have argued that the dream of recreating the glory of Mesopotamia (not to mention gaining control of the region's vast oil reserves) required that the Baathists be weakened or destroyed.

With "Poppy" Bush having served as CIA director during the Ford administration, it is not surprising that the CIA/State view prevailed during his presidency, but only up until Saddam Hussein invaded Kuwait. The last person to speak to Hussein before Gulf War I was Joseph Wilson, who at the time was the State Department charge' d'affaires in Baghdad. Wilson remained in Baghdad after the US withdrew its ambassador, and reportedly risked his life to protect 800 American citizens there as the war began. But at the war's conclusion he recommended against marching on Baghdad.

During "Poppy's" administration, George Tenet was chief of staff on the Senate Intelligence committee, and despite the Democratic-controlled Congress, supported Bush's efforts to appoint his friend Robert Gates director of the CIA. When "Junior" assumed office he reportedly expressed doubts about Tenet, who had been appointed CIA Director by former President Clinton. According to one account, "Poppy" assured "Junior" that Tenet was a team player, and "Junior" kept him on.

The Iraq-policy factional conflict persisted into "Junior's" administration and after the defeat (at least for a time) of the Taliban in Afghanistan, the Cheney/Rumsfeld axis took the opportunity to promote the ouster of Saddam Hussein -- something that had been part of the platform of the Project for a New American Century since 1998. In written and oral testimony the CIA through Tenet countered that invading Iraq could increase the global terrorist threat. At a CIA briefing in late 2001 or early 2002, however, Cheney learned of the possibility that that Iraq was trying to buy uranium in Africa. Although Cheney's office says that he did not ask the CIA to investigate the matter, a question from the Vice President at a CIA briefing created a task within the CIA.

How to Bake Yellow Cake

Because of his experience with security matters in Africa, and Niger in particular, Wilson was invited to confer with CIA analysts as they discussed approaches to the task. Wilson had been senior director for Africa at the NSC during a politically unstable time in Niger that included a coup d'etat. So he was familiar not only with the situation in Africa, but with the CIA and State Department officials responsible for the region. He also was fluent in French (the language of commerce in Niger), and was familiar with the Hussein regime. At the conclusion of the session at CIA headquarters Wilson was asked if he would travel to Niger to investigate the uranium question. He agreed, provided that it was not a covert mission.

In Niger, Wilson examined the uranium business in considerable detail. He investigated how the consortia that control the two mines set their production schedules, how the schedules were revised, and how output was apportioned to members of the consortia and others. "In other words," Wilson said, he determined "who actually has their hands on the product from the time it comes out of the mine to the time it's delivered to the ultimate customer."

...[I]f there is going to be a sale, the government itself would have to make a decision to authorize the parastatal to act on the government's behalf in this matter. That would require a cabinet-level meeting. And since this purported sale was between two sovereign governments, the minister of foreign affairs would have to be involved. Since this involved the sale of uranium, the minister of mines would have to be involved. Since it involved the government totally, the prime minister would be involved, speaking on behalf of the government in signing any particular document.

It was also entirely possible, although I don't recall, that the president would also have to put his signature on a document as the supreme authority in the Niger regime. If this were to take place, it would be minuted in a council of ministers meeting, and it would be gazetted. Very much like--printed in their equivalent of the Federal Digest.

Even a sale by some government or military faction outside of the official government channels would have involved the consortium when it came to extracting, packaging, and transporting the uranium. The whole uranium business in Niger, Wilson told Talking Points Memo editor Josh Marshall, "is bureaucratically rather heavy to ensure some semblance of transparency. And it was all put together in the context of sort of the French system of doing this." Because Niger is a former French colony, the French would certainly have been aware of any clandestine transfer of uranium. Wilson notes that "whatever you may think of the French ... nuclear energy is an important component of the French electrical power grid. They need uranium, they need to have a steady source of supply. They need to make sure that they're irreproachable in that, so they can continue to have a steady supply of uranium without running afoul of the IAEA or other international organizations."

The question reduced, said Wilson, to this: "Could Iraq purchase significant quantities--a quantity, 500 tons--of uranium from Niger without anybody knowing about it?" Wilson concluded the answer was "No," because his investigation of the uranium business indicated it was not possible, and because the Nigerien government procedure would have required signatures from the Minister of Mines, the Minister of Foreign Affairs, and the Prime Minister.

Wilson also met with US Ambassador Owens-Kirkpatrick, who told him she thought she had already debunked allegation of uranium sales to Iraq in her reports to Washington. Wilson, following standard procedure, did not file a written report, but provided a detailed briefing to the CIA that there was no evidence to support claims that Iraq was trying to buy uranium. He has also stated that protocol dictated that "a specific answer" would have been delivered to the office of the vice president.

Despite Wilson's findings, allegations of Iraqi attempts to buy uranium made their way into the 2003 State of the Union message, attributed to British intelligence. Critics of the administration's foreign policy questioned the inclusion of the uranium claim in the speech, prompting White House aides to reveal that the CIA had "signed off" on it. Director Tenet came forward to acknowledge that the agency had indeed vetted the speech, but, as Newsweek reported, "it was clear that he had been forced to do so."

On July 7, 2003 the New York Times published an op-ed piece by Wilson in which he revealed that the purported attempts by Iraq to buy uranium had no basis in fact. He also pointed to more general issues, suggesting that if his "information was ignored because it did not fit certain preconceptions about Iraq, then a legitimate argument can be made that we went to war under false pretenses." The article's publication heated up the conflict between factions who had supported and opposed the war in Iraq, and also between the CIA and its critics. Soon afterward, as reported by numerous sources, aides in the White House began calling reporters, playing down the importance of Wilson's trip. Newsweek suggested that the callers' initial intent was to discredit Wilson's neutrality, identifying him with their old opponents on Iraq policy, who they believed had conspired to hide the truth about Iraq. In this context the identity of Wilson's wife, Valerie Plame, and her work with "weapons of mass destruction" at the CIA were revealed.

Revelation

A week to the day after the publication of Wilson's op-ed piece, conservative columnist Robert Novak published Plame's name and identified her as a CIA "operative on weapons of mass destruction." Novak continued:

Two senior administration officials told me Wilson's wife suggested sending him to Niger to investigate.... The CIA says its counter-proliferation officials selected Wilson and asked his wife to contact him.

On September 14, 2003, as a lead-in to asking whether Cheney's repeated visits to the CIA over the previous year constituted "pressuring" the agency for analyses that confirmed to the administration's preconceptions, Meet the Press host Tim Russert asked Vice President Cheney if he was briefed on Wilson's findings. Parsing his words carefully, Cheney responded:

No. I don't know Joe Wilson. I've never met Joe Wilson. A question had arisen. I'd heard a report that the Iraqis had been trying to acquire uranium in Africa, Niger in particular. I get a daily brief on my own each day before I meet with the president to go through the intel. And I ask lots of question. One of the questions I asked at that particular time about this, I said, "What do we know about this?" They take the question. He came back within a day or two and said, "This is all we know. There's a lot we don't know," end of statement. And Joe Wilson -- I don't who sent Joe Wilson. He never submitted a report that I ever saw when he came back.

Josh Marshall asked Wilson about Cheney's comments in an interview for Talking Points Memo on September 16, 2003. Wilson noted that it was the first time Cheney had publicly acknowledged having asked about the Iraqi attempts to acquire uranium, "which is personal confirmation of the second part of the opinion piece that I wrote for The New York Times." Wilson also observed that someone senior enough to ask a question of the CIA is senior enough to receive an individualized response.

With regard to his wife's "outing," Wilson asserted that the code phrase "senior administration officials" refers to the White House. "The CIA does not 'out' its own," he said.

But I do think that the reason they did--and I've said this quite publicly--is that they thought that by coming after me they would discourage others from coming forward. The point that they tried to make is that there are consequences if you dare to step forward. And there were any number of analysts who were speaking to the press about the pressure they felt when Cheney went over there. Now I have no way of judging whether that was real or imagined pressure, but you know if they were prepared to say it to the press anonymously they might well have been prepared to come up and say it to their congressman more publicly. Congress was saying, "We welcome people coming up." Not just Democrats, but also Republicans. John Warner said on a number of occasions--this was clearly a shot across the bow at these guys. This was a message to them, "Should you decide to come forward, you too could be looking at this."

On September 26 MSNBC.com reported that, at the request of CIA Director Tenet, the Justice Department would investigate whether senior Bush administration officials broke the law by revealing Plame's identity. (The Intelligence Agents Identification Act of 1982 prohibits revealing the identities of Americans who work undercover for the CIA; the Espionage Act of 1917 makes it illegal to leak any classified information.) On September 28, the Washington Post reported that yet another "senior administration official" confirmed that two "top White House officials" had called at least six Washington journalists and revealed the identity and occupation of Wilson's wife. The Post's story proved more sensational than Novak's original article, in part because it documented the existence of a highly-placed dissenter in the Bush administration. As the Post story noted, "It is rare for one Bush administration official to turn on another." The Post's source called the leaks "wrong and a huge miscalculation, because they were irrelevant and did nothing to diminish Wilson's credibility."

Two days later, the UK Guardian's Washington correspondent, Julian Borger, posted an audio dispatch in which he reported:

... [T]he claim is that someone in the White House committed a felony by making these calls. And the finger has pointed so far at Karl Rove, who is the political maestro in the Bush team. And there is no one closer, in political terms, to Bush than Karl Rove. And several of the journalists are saying privately, "Yes it was Karl Rove who I talked to." Now, the thing is that the journalists are not going to name Karl Rove publicly, because you don't name your sources, and to do so would discredit them as journalists. So the White House is safe for the time being. But Karl Rove's name is very much out there.

Newsweek reporters Michael Isikoff and Mark Hosenball suggested a few days later that the Post's source was actually in error in implying that half-a-dozen calls had been placed to reporters before the publication of Novak's article revealing Plame's identity and cover. Rather, wrote Isikoff and Hosenball, the calls referred to by the source were made after the Novak column appeared, and were "part of a blundering effort to persuade journalists to concentrate on Wilson's presumed lack of credentials as a critic of pre-Iraq war intelligence rather than the substance of his critique."

The Newsweek hypothesis seemed to be confirmed by NBC News correspondent Andrea Mitchell who had been "identified by some as one of the recipients of a leak about the undercover agent." Mitchell reported that her first discussion with an administration official about the matter had been after publication of the Novak report, and that the conversation was off the record. Wilson himself seemed to confirm the Newsweek theory as well when he acknowledged that he received no calls from reporters asking about his wife before Novak's column was printed, but many calls thereafter.

Among the calls Wilson acknowledged to Newsweek was one from Chris Matthews, host of MSNBC's "Hardball," who said "I just got off the phone with Karl Rove, who said your wife was fair game." An unidentified source confirmed Rove's call to Matthews, but suggested that Rove had said it was "reasonable to discuss who sent Wilson to Niger." Wilson has said he had no specific knowledge of Rove being the leaker, but did say "At a minimum he knew about it. ... He condoned it."

White House Press Secretary Scott McClellan has refused to answer direct questions about the conversation between Rove and Matthews. The administration also refused to answer questions about whether specific officials spoke to Novak about Plame. Catherine Martin, communications director for Vice President Dick Cheney would say only "I don't know the answer," when asked if Cheney's chief of staff, Lewis "Scooter" Libby, ever had such a conversation with Novak. In his denials, McClellan was careful to state that Libby, Rove or Elliot Abrams had not leaked any "classified" information to Novak. Observers suggested that this may indicate the administration's strategy in the face of the Justice Department investigation, namely, to deny that federal law was violated because no classified information was leaked. (As we note, below, however, a violation of the federal conspiracy and fraud statutes could still have occurred.)

Apocrypha

With a CIA-requested investigation by the Justice Department underway, Novak was moved to write again about the matter in his syndicated column. Claiming that "My role and the role of the Bush White House have been distorted and need explanation," Novak dismissed the notion that the leak was an attempt to silence critics of the administration's Iraq policy, as Wilson had claimed. Novak's October 1, 2003 column asserted:

  • The leak was not planned.
  • The CIA did not warn him that "the disclosure of Wilson's wife working at the agency would endanger her or anybody else."
  • Plame's identity and cover were "not much of a secret."

Specifically, Novak seemed concerned to deny that "somebody in the White House failed to plant this story with six reporters and finally found" him. He claimed that he had wondered why Wilson was the CIA's choice to investigate uranium in Niger, and was told that, although Wilson's wife did not "inspire" his selection, she had been "delegated to request his help." Novak also admitted that "the CIA, the official designated to talk to me ... asked me not to use her name, saying she probably never again will be given a foreign assignment but that exposure of her name might cause 'difficulties' if she travels abroad."

Novak's most disingenuous claim in his October 1 column was that his use of the word "operative" was not intended to suggest covert status. Josh Marshall reported in The Hill on his search through the Nexis database for all occurrences in Novak's columns of the word "operative&quot with either "CIA" or "agency." "I came up with six examples," Marshall wrote. "In every case, Novak clearly used the phrase to refer to clandestine agents." Examples include Mike Spann, the CIA operative who was killed in the prison uprising at Mazar-i-Sharif, Afghanistan, and clandestine operatives in Latin America that former CIA Director Stansfield Turner disciplined in the 1970s.

"While the CIA refuses to publicly define her status," Novak wrote in his October column, "the official contact says she is 'covered' -- working under the guise of another agency. However, an unofficial source at the Agency says she has been an analyst, not in covert operations." Novak also stated that the Justice Department investigation had not been requested by George Tenet, but rather that "Any leak of classified information is routinely passed by the Agency to Justice, averaging one a week." It was only the reporting of the investigation that "ignited anti-Bush furor," Novak wrote.

In a number of press conferences in late September and early October, White House spokesman Scott McClellan denied Karl Rove's involvement in the matter. At various times he said "The President knows" that Rove was not involved, calling it a "ridiculous suggestion." "I've said that it's not true. And I have spoken with Karl Rove...." When asked about VP Cheney's chief of staff Lewis Libby, however, McClellan interrupted the questioner and offered the more equivocal "there has been nothing that's been brought to our attention." McClellan's shaded response, combined with comments from other Washington insiders led to speculation that Libby might be a more likely source of the leak than Rove. Nebraska Senator Chuck Hagel suggested to CNBC that Bush should be "sitting down with [the] vice president and asking what he knows about it." Salon.com quoted an unidentified "former senior CIA officer who served under President Bush's father" as saying "Libby is certainly suspect No. 1."

Salon.com's Eric Boehlert cited a number of clues from Novak himself that may point to Libby. Novak referred to the source as "no partisan gunslinger" -- a characterization that might rule out Rove. As noted above, Novak wrote that at the time the leak occurred he was investigating why Wilson was chosen for the mission to Niger. Because the trip was in at least indirect response to a question from Cheney at a CIA briefing, Cheney's office would be a logical place for Novak to begin. Boehlert also pointed to a story titled "At War on Wilson?" that was posted in July on Time.com in which then-spokesman Ari Fleischer, CIA Director Tenet, and Cheney chief-of-staff Lewis Libby were quoted. The article included the comment "Some government officials have noted [in private] to TIME in interviews, (as well as to syndicated columnist Robert Novak) that Wilson's wife, Valerie Plame, is a CIA official." Boehlert pointed out that anonymous quotes often come from individuals who are quoted on the record elsewhere in an article, but who have asked that certain comments be "on background" or off the record.

According to a USA Today article published October 1, 2003, Plame "was assigned to the CIA's Non-Proliferation Center, an organization of analysts, technical experts and former field operatives who work on detecting and, if possible, preventing foreign proliferation of weapons of mass destruction." The article continued without comment:

Vice President Cheney and his chief of staff, Lewis "Scooter" Libby, met with officials at the Non-Proliferation Center before the invasion of Iraq to discuss reports that Iraq was seeking to buy uranium in Africa. A U.S. official with knowledge of those meetings said Plame did not attend. But the former U.S. intelligence official said she was involved in preparing materials for those meetings.

Salon.com's Boehlert suggested that Libby could have learned of Plame's identity and occupation at the Non-Proliferation Center meetings. But perhaps the broadest hint at Libby's involvement came from former CIA counterterrorism official Larry Johnson. Appearing on MSNBC's "Buchanan & Press," Johnson declared that he knew who had spoken to Novak, and that the person worked in the White House, or specifically "in the Old Executive Office Buildings." The office of the vice president in located in the Old Executive Office Building. Buchanan asked Johnson directly, "...[I]s Scooter Libby the name you heard?" "I'm not going to comment on that," Johnson responded.

In his new book, The Politics of Truth, Joseph Wilson wrote that Libby was "quite possibly" behind the disclosure of his wife's identity. Although he did not offer concrete proof of his assertion, Wilson noted that Libby "evidently seized opportunities to rail openly against me" had the "motive and means" to identify Ms. Plame.

The Gnostics

In an appearance on the PBS News Hour that week, Johnson also criticized Novak's attempts to minimize the significance of the leak of a covert operative's identity by members of the administration. "Sure, ... he called them," Johnson said, "but they volunteered the information. They took the initiative to divulge the CIA officer's name. And that is outrageous." Johnson continued:

This is not an alleged abuse. This is a confirmed abuse. I worked with this woman. She started training with me. She has been undercover for three decades, she is not as Bob Novak suggested a CIA analyst.

So the fact that she's been undercover for three decades and that has been divulged is outrageous because she was put undercover for certain reasons. One, she works in an area where people she meets with overseas could be compromised. When you start tracing back who she met with, even people who innocently met with her, who are not involved in CIA operations, could be compromised. For these journalists to argue that this is no big deal and if I hear another Republican operative suggesting that well, this was just an analyst fine, let them go undercover. Let's put them overseas and let's out them and then see how they like it.

Johnson added that, as a registered Republican who had contributed to the Bush campaign he did not believe that the outing of Valerie Plame had any relevance to Novak's story, but was a political attack intended, as Wilson claimed, to intimidate him and others for criticizing administration Iraq policies. "...[I]t sickens me to be a Republican to see this," he told News Hour's Terence Smith.

What is clear in this case is that there were other reporters who had the integrity and good judgment to recognize that this was a political hatchet job that this was not about real news. I like Bob Novak and I have been on his other show but in this case he got it wrong. And to hide behind the parsing of words that she was an analyst so therefore it's okay. No, it's not okay.

Novak has a history of publishing leaked classified information, the Washington Post's Dana Milbank noted on October 7, 2003. In 1975 Novak published the information that then-President Ford and his Secretary of State Henry Kissinger were about to make concessions to the Soviet Union to save the SALT II treaty. The likely leaker then was Richard Perle, an aide to Senator Henry "Scoop" Jackson of Washington at the time, and currently an influential advisor to the Bush administration. (Perle briefly chaired and remains a member of the Defense Policy Board, which advises the Defense Department.) A 1979 article discussed Perle's strategic use of leaking to Novak to "create a 'murky, threatening atmosphere' in his dealings with others."

Perle is apparently not a suspect in the current leak scandal, and does not fit Novak's characterization of his sources as "senior administration officials." But Novak has quoted members of the Defense Policy Board in his column with some frequency, sometimes by name. The board includes such neoconservative icons as Newt Gingrich, and James Woolsey, who are in turn connected to fellow neo-cons at the Defense Department: Secretary of Defense Rumsfeld; his deputy, Paul D. Wolfowitz; Defense Undersecretary Douglas J. Feith; Undersecretary of State John R. Bolton; State Department adviser David Wurmser; and National Security Council officials Stephen J. Hadley, Robert Joseph and Elliott Abrams.

Novak may also have a received leaked information from Karl Rove in the past. The Houston Chronicle reported that during "Poppy" Bush's 1992 re-election campaign, Novak wrote about a secret meeting in Dallas in which Rob Mosbacher was ousted from the position he had held as manager of Bush's campaign in Texas. Novak stated that the meeting had been called by then-Senator Phil Gramm, and that "political consultant Karl Rove, who had been shoved aside by Mosbacher" also attended. The reason for Mosbacher's being replaced, Novak wrote, was that "the president's re-election effort in Texas has been a bust." Mosbacher subsequently received assurances from "Junior" and others in "Poppy's" campaign that they did not consider the Texas effort a bust.

Rove's direct mail firm had been awarded the full contract for "Poppy's" 1988 campaign mailing efforts, but in '92 Mosbacher gave two-thirds of the business to another firm. "I thought another firm was better," he said. Mosbacher regarded the leak to Novak as Rove's attempt at payback. "I said Rove is the only one with a motive to leak this. We let him go.... I still believe he did it," Mosbacher told the Chronicle in a recent interview. Mosbacher believes Rove's spokesman-delivered denials this time, however, saying "I think he's a smart guy, and I don't believe he would break the law."

Judgment?

Former White House counsel John Dean has suggested that Espionage Act of 1917 and the Intelligence Identities and Protection Act of 1982 may apply to the leak of Valerie Plame's identity, and federal conspiracy and fraud statutes may apply to attempts by the administration to capitalize on the leak.

The Reagan administration used the Espionage Act of 1917 to prosecute the leak of US satellite photos in 1984. Samuel Morrison, whose grandfather was an eminent naval historian, leaked three photographs of the first Soviet nuclear-powered aircraft carrier to Jane's Defense Weekly. The photographs were classified, but did not reveal national secrets, nor were they delivered to an enemy. Nonetheless, the US Court of Appeals Fourth Circuit upheld the Reagan administration's reading of the statute, namely that the leaking of classified material by itself violated the act, subjecting the perpetrator to fines and up to ten years in prison. The court ruled that leaking classified material, with "the most laudable motives, or any motive at all," was still a crime.

The Intelligence Identities Act of 1982 is aimed primarily at intelligence insiders who disclose classified information, including the identities of covert operatives. It can apply to people outside intelligence agencies who undertake a "pattern of activities" intended to reveal the identities of undercover agents, but it is unlikely that this provision will apply to any journalists connected to the Plame matter. The Act applies to two kinds of insiders, those -- such as CIA employees -- with direct access to information about covert agents, and those who are authorized to have classified information, obtain it, and then leak it. The latter provision would seem to apply to anyone in, for example, the Defense Department, or the White House. Additional conditions pertain, but in Dean's view, they are all met in the Plame case:

  • The leak must be to a person "not authorized to receive classified information," which would include journalists.
  • The insider must know that the leak refers to a "covert agent." Novak reports that he was told this.
  • The insider must know that the US government is "taking affirmative measures to conceal such covert agent's intelligence relationship to the United States." In Dean's view this is a given, because people with Top Secret security clearances have been briefed, have signed pledges of secrecy, and are aware that the CIA works to safeguard its agents' identities.
  • Finally, the "covert agent" must either be serving outside the United States, or have served outside the United States in the last five years. It seems likely that these criteria apply to Ms. Plame.

In a lawsuit in 1982 following enactment of the Intelligence Identities Act, Stansfield Turner, CIA Director at the time noted, "In the case of persons acting in the employ of CIA, once their identity is discerned further damage will likely result from the exposure of other intelligence collection efforts for which they were used."

Even if administration officials avoid prosecution (or conviction) under the Intelligence Identities or Espionage Acts, they and others may still have violated the federal conspiracy and fraud statutes. As John Dean has observed, "Even those who come in later, and who share in the purpose of the conspiracy, can become responsible for all that has gone on before they joined. They need not realize they are breaking the law; they need only have joined the conspiracy."

In the Plame case, Dean suggested, the conspiracy would be a conspiracy to defraud the US by depriving it of "faithful and honest services of its employee." Dean continued:

It is difficult to imagine that President Bush is going to say he hired anyone to call reporters to wreak more havoc on Valerie Plame. Thus, anyone who did so - or helped another to do so - was acting outside the scope of his or her employment, and may be open to a fraud prosecution.

What counts as "fraud" under the statute? Simply put, "any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government." If telephoning reporters to further destroy a CIA asset whose identity has been revealed, and whose safety is now in jeopardy, does not fit this description, I would be quite surprised.

On December 23 the Washington Post reported that Senate minority leader Daschle, and ranking Democrat on the Senate Armed Services Committee Carl Levin had written the Justice Department demanding a status report and urging the appointment of a special counsel. Three days later the Post reported that a fourth prosecutor had been added -- one "specializing in counterintelligence" -- presumably meaning he or she had high level security clearances. On December 30, Attorney General John Ashcroft recused himself from the Justice Department investigation into the Plame matter, and named Patrick Fitzgerald, US Attorney for Illinois, as a special counsel. Deputy U.S. Attorney General James Comey, who becomes the acting attorney general in the case, said that Ashcroft recused himself after careful consideration."The issue surrounding the attorney general's recusal is not one of actual conflict of interest that arises normally when someone has a financial interest or something. The issue that he was concerned about was one of appearance. And I can't go beyond that," Comey told a news conference. Comey added that "this has come together really in the last week," apparently referring to the previous week in which the FBI had suggested that some witnesses it was interviewing might have to face a grand jury.

On January 2, 2004, NBC News reported that the investigation was keying in on the White House, and that the "several aides" to Bush would be asked to sign one-page forms giving permission to journalists to describe to investigators any relevant conversations, even if the aides had originally requested anonymity. Time magazine reported on its web sited that Karl Rove had received such a form, and similar requests had been made over the past weeks.

John Dean speculated that Ashcroft may have recused himself because one of the witnesses facing the prospect of a grand jury appearance had "lawyered up." A likely witness, suggested Dean, would be a middle-level aide who knew about a leak by a superior. Such an individual would probably try to work out a deal with prosecutors. Dean noted:

When the lawyer ... went to the government seeking immunity for his or her client, Ashcroft would have heard that the middle-level person was offering to finger the high-level leaker. At that point, he would have realized he himself knew the high-level leaker; and decided to recuse himself from the case, and let Fitzgerald take over.

Dean speculated further, that a likely defense lawyer in this case might be attorney Victoria Toensing who was chief counsel of the Senate Select Committee on Intelligence in 1982 when the law protecting the identities of undercover agents was enacted by Congress, or her husband, former DC United States Attorney Joe diGenova. The day NBC News reported that the investigation was focusing on the White House, Toensing was quoted in the Washington Post, arguing that the Justice Department investigation could conclude that a crime had not been committed if administration officials who disclosed Valerie Plame's identity did not know that she was a covert operative. (Unfortunately, as noted above, the conspiracy statutes might still apply.)

On January 21, 2004, according to Time.com, a grand jury began hearing testimony behind closed doors at the E. Barrett Prettyman federal courthouse in Washington, DC.

Whatever the legal outcome, Wilson and others have called for political accountability. "The question is whether the president is going to accept having people on his staff who have engaged in behavior which has to be inconsistent with his own promise to change the tone in Washington." Wilson observed recently to the Post "Just because it isn't criminal doesn't make it ethically acceptable."

References:

Johnson, David and Richard W. Stevenson, "Former Envoy Talks in Book About Source of C.I.A. Leak" New York Times, 30 Apr. 2004

"Blair survives an ordeal" Economist 29 Jan. 2004

Dickerson, John and Viveca Novak "Grand Jury Hears Plame Case" Time. 22 Jan. 2004

Hutton, Brian Report of the Inquiry into the Circumstances Surrounding the Death of Dr David Kelly C.M.G. House of Commons (UK). 28 Jan. 2004

Jehl, Douglas "Ex-Intelligence Group Presses for Congressional Inquiry on Disclosure of C.I.A. Officer" New York Times 22 Jan. 2004

Dean, John W. "Why Did Attorney General Ashcroft Remove Himself From The Valerie Plame Wilson Leak Investigation?" FindLaw's Writ 6 Jan. 2004

---. "A Further Look At The Criminal Charges That May Arise From the Plame Scandal, In Which a CIA Agent's Cover Was Blown" FindLaw's Writ 10 Oct. 2003

---. "The Bush Administration Adopts a Worse-than-Nixonian Tactic: The Deadly Serious Crime Of Naming CIA Operatives" FindLaw's Writ 15 Aug 2003

Allen, Mike "Bush Aides Face Request To Free Media To Give Names" Washington Post 3 Jan 2004

---. "Justice Could Decide Leak Was Not a Crime" Washington Post 2 Jan. 2004

"Ashcroft recuses himself from CIA leak probe" CNN.com. 31 Dec. 2003

Casey, Rick "Karl and Bob: a leaky history" Houston Chronicle 7 Nov. 2003

Marshall, Josh "Taking Novak up on his challenge over his one regret" The Hill. 15 Oct. 2003

Hennican, Ellis "Hunt for Leaker Lacks Inspiration" Newsday 8 Oct. 2003

Milbank, Dana "Novak Leak Column Has Familiar Sound" Washington Post 7 Oct. 2003

"The Plame Game" Newsweek. 7 Oct. 2003

Novak, Robert "The CIA leak" Creators Syndicate. 1 Oct. 2003

---. "Mission to Niger" Creators Syndicate. 14 Jul. 2003

Nichols, Bill and John Diamond"War critic at center of CIA flap always vague on wife's job" USA Today 1 Oct 2003.

Borger, Julian. Untitled audio dispatch. Guardian (UK) 30 Sep. 2003

"In the Shadows" Mod. Terence Smith. News Hour. PBS. 30 Sep. 2003

McClellan, Scott. Press Briefing. White House. 29 Sep. 2003

Cloud, David S. et al. "Justice Department Opens Probe Into Leak of CIA Agent's Name" Wall Street Journal 29 Sep. 2003

"C.I.A. Seeks Inquiry Into Naming of an Operative " New York Times 28 Sep. 2003

Allen, Mike and Dana Priest "Leak of CIA Name Being Investigated " Washington Post 28 Sep. 2003

Meet the Press Mod. Tim Russert. NBC. 14 Sep. 2003

Marshall, Joshua M. Talking Points Memo 16 Sep. 2003

Wilson, Joseph C. "What I Didn't Find in Africa" New York Times 6 Jul. 2003

Apologies to visitors familiar with Internet jargon for the play on the term "flame wars." The Free Online Dictionary of Computing defines "flame" as "To rant, to speak or write incessantly ... or with a patently ridiculous attitude or with hostility toward a particular person or group of people."

See also:

In-Depth: 
Ethics

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