VPW - The Times Reviews The Plame Investigation

The NY Times takes a long look at the legal maneuverings of the reporters involved in the Valerie Plame investigation.

Below are some quick reactions. First, the Times points out that, unlike most desultory leak investigations, this one is being pursued with vigor, and tells us why:

The Plame case is different. This is largely because, unlike most leaks, the disclosure of an undercover intelligence agent's identity is a felony. The disclosure of Ms. Plame's identity, moreover, may have been motivated by politics. And the investigation inside the government, in which the president, the vice president and many other officials have been questioned, seems to have been both exhaustive and inconclusive.

Please. A few weeks ago, the Times was delighted to report on leaks of the National Intelligence Estimate on Iraq, which the Times described as classified. And were the leaks politically motivated? We all know how the game was played - some Administration critics leaked the ghastly bits to the Times; Administration sympathizers then had to choose between leaking some rebuttal points, or conceding the story to the critics.

And here is another leak of what we suspect is classified info - an internal assessment of the CIA's pre-war intelligence effort. Can anyone speculate at a political motive here?

The Times is littered with politically motivated leaks of classified information. By and large, I support that - the government probably does over-classify things, and a better-informed public has some vague hope of reaching better decisions. But perhaps the Times could reflect a bit more deeply as to why the Plame leak was perceived as being so different. Possible hints - it was personalized in a way that misty breaches of generic "national security" are not; the Dems screamed, eventually with some success; and it tied in nicely to a storyline of a thuggish, do-anything White House, as described in the original reporting by David Corn. The non-thuggish "news management" view was presented rather quickly; more nefarious alternative views emerged much later, as the scope of Ambassador Willson's misinformation campaign became more clear.

A little mystery may be cleared up here:

Mr. Pincus said one official gave him permission to repeat a conversation but not to name the official. The Post reported on the case in October, citing a journalist there, later identified as Mr. Pincus.

This may be the WaPo story from Oct. 12; the relevant passage would be this:

On July 12, two days before Novak's column, a Post reporter was told by an administration official that the White House had not paid attention to the former ambassador's CIA-sponsored trip to Niger because it was set up as a boondoggle by his wife, an analyst with the agency working on weapons of mass destruction. Plame's name was never mentioned and the purpose of the disclosure did not appear to be to generate an article, but rather to undermine Wilson's report.

Mr. Pincus has a byline on the October story, and also seems to be the reporter cited in the story. Reporting live from the Hall of Mirrors, Walter Pincus and Mike Allen!

We have also added emphasis to the oddly exculpatory tidbits - in this telling, the White House source revealed neither her name nor Ms. Plame's status as an undercover operative.

Relatedly, the Times reports that the status of Mr. Novak's testimony is unknown, and tells us this:

...Robert Novak, the columnist who identified Ms. Plame in the first place as "an agency operative on weapons of mass destruction," citing "two senior administration officials" as his sources, is not saying whether he has been subpoenaed or whether he has provided any information to prosecutors.

Just for the record, let's repeat what Mr. Novak actually wrote, so people can see for themselves just how cryptic his sourcing was:

Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction. Two senior administration officials told me Wilson's wife suggested sending him to Niger to investigate the Italian report. The CIA says its counter-proliferation officials selected Wilson and asked his wife to contact him.

No source for the "Agency operative" information; senior Admin officials saying his wife helped select him; CIA sources for a different view of her role in Wilson's recruitment.

That third sentence, where Novak makes clear he had CIA sources for background on Ms. Plame, is rarely reported. For example, if I can rely on Google, it has never been cited by Josh Marshall at his Talking Points Memo website, although he has written on Ambassador Wilson extensively. And has it been noted at the Times itself? Don't be daft.

However, Novak's interplay with the CIA press relations people was reported on last fall. His version - the CIA never really warned me not to publish. The WaPo version is here; my thoughts, with related links, are here.

Do I have a point? YES! Novak's sourcing was never clear, so his grand jury testimony may be similarly opaque.

The Times mentions the Wen Ho Lee case as an example of leaks gone bad; nothing about Steven Hatfill of anthrax fame, so we will remind them that Nick Kristof was involved with that debacle, as well as the Joe Wilson mess.

Finally, the Times does not mention the "One by Two By Six" theory that at one time guided this case. The notion was that one White House source leaked the general story to the WaPo in late September; that story was that two White House aides had leaked to six reporters. The prosecutor's approach - find the "one", find the "six", and then find the "two".

However, finding six reporters who received the leak seems to have stumped Fitzgerald. My guess - the original "six" figure was wrong. Pincus looks like a leak recipient, as does Novak, but the version of the leak presented by Pincus last October won't convict anyone (in my non-lawyerly opinion).

MORE: Lots of links at this timeline.

UPDATE: A fair question from Kevin Drum - why doesn't anyone know what is happening with Novak?

Comments

[J_Crater]

After a quick look at Kevin Drum's site, I decided to answer his question here (as his commenters are a bit too full of themselves to actually deal with his question).
"what is happening with Novak?" Fitzgerald is working the case methodically. The often referred to reporter's confidentiality, is being worked on the basis of: reporters must reveal if no other can supply the information. And reporters should be happy to see it worked in that manner. Meanwhile, Fitzgerald's office is working the food chain, working their way back to Novak. Novak isn't off the hook yet, and probably faces some very difficult days ahead, but not just yet.

Lost in the noise of this case is a reminder that reporters should be careful what they wish for. This is not a public showcase, but I'm sure the folks at DOJ would be the first to remind anyone interested, this is what could happen with any classified leak.
The folks at the NYT have gotten a taste of this and should proceed with caution.

[TM]

Now that you remind me, I had mentioned the reporter-roll up theory a while back - Fitzgerald wants to exhaust every witness, and every legal defense, before going after Novak.

But has he gone after Novak yet, and do we really not even know?

[petetheelder]

There is also the problem you quoted in paragraph three: "the disclosure of an undercover intelligence agent's identity is a felony" There is no proof that Ms Plame was an undercover intelligence agent at the time. There is some evidence that she had not been abroad for the CIA for five years and for someone to be an "undercover intelligence agent" they have to have been doing undercover intelligence work, not just intelligence work.

[Pat]

And while we are talking about PlumeGate, whatever happened to BurgerGate (aka TrouserGate)?

[alan]

How about: Administration does leak Plame name, but leaker unaware she is covert, knows her only as operative. Political counterpunch,tell your own outlet:"You know, she is covert and leaking her name is a crime." Perhaps the story involves two leaks, which is a possible explanation why reporters being questioned are not normally administration outlets. Who has committed crime? Who's being political?

[LB]

I tried to trackback this great post, but I guess it didn't go through.

[walt]

I haven't looked at it for a while, but when this story broke I spent some time researching the statute that was possibly broken here. It is very, very narrow. Someone above points out that there is some question whether Ms. Plame was an "undercover" agent. Well, this is a defined term in the statute, and, if memory serves, the agent has to either be posted overseas in a covert capacity at the time of the disclosure or to have been posted overseas in such a capacity within the prior six months. There is no indication that Ms. Plame fits this definition. Furthermore, the person making the disclosure has to have specific intent to "out" a covert agent knowing that the person is a covert agent. Specific intent and actual knowledge are very, very hard to prove.

This law was designed to stop turncoats like Philip Agee from getting spies killed. I'm not certain that it applies here.

[Fish of the Day]

You know, reading that supposedly incriminating paragraph closely...

If Plame was so well known in Washingtonian circles prior to the the leak as Wilson's wife AND a cia analyst, then someone could have likly said to Novak, "yeah, his wife was the one that recommended him", then Novak, already knowing who Plame was could have passed this information along.

Four sources of info here.
1. Novak knows already the Plame is Wilson's wife
2. Novak knows already that she is an employee of the CIA
3. Admin source says only that Wilson's wife was involved.
4. CIA source says only that she was involved.

It looks like that Novak only put ALL the info together into a neat package for anyone to draw their own conclusions.

[PeterB]

Happy to see SOMEONE is taking a sceptical look at the original charge: it is critical to the charge sticking that the person who disclosed Plame's identity KNEW that Plame (a) had a true "covert" assignment, (b)which fell within the statutory time frame, and (c) knowingly disclosed that information. You cannot form the requisite criminal intent to violate the statute in question (which requires the violation be "knowing") unless you were aware your actions would violate the law. So the result of this whole elaborate investigation can still be- no crime committed.

[Bruce Hayden]

That is precisely the problem. The MSM has spun this from day one as a crime. But odds are that no crime was actually committed.

The obvious reason for the spin is that it has taken the focus from day one from Wilson and Plame to Novak, even though it was Wison/Plame who were playing politics with our national security.

[TM]

One thing that I have been convinced of for a long time - if this was a "leak of passion", where the leakers were so furious with Wilson that they just blurted out the dirt, then maybe, MAYBE, an indictment would be possible for something (a lesser charge of leaking classified info is also available, I believe).

However, if this really was a thuggish White House conspiracy to "get Wilson", then it would have been very easy to leak it in a way that was not indictable.

Conclusion - if there was true intent to out an undercover agent, the tracks will also be covered; if the tracks are uncovered, then there was no real intent.

There is an obvious circularity to this logic (sort of like the insanity defense in a routine murder - "I would have to have been crazy to have killed him.") However, circular or not, I suspect it is applicable.

But I had a different point! Miami Vice fans will remember the song which included "This is what you want, and this is what you get". This story makes the connection:

http://apnews.myway.com/article/20040928/D85CV3100.html

Unintended consequences rule again.

The New York Times sued Attorney General John Ashcroft on Tuesday, seeking to block the Justice Department from obtaining records of telephone calls between two veteran journalists and their confidential sources.

The lawsuit said the Justice Department was "on the verge" of getting records as part of a probe aimed at learning the identity of government employees who may have provided information to the newspaper. It asked a judge to intervene.

The paper said the government intends to get the records, which reflect confidential communications between the journalists Philip Shenon and Judith Miller and their sources, from third parties unlikely to be interested in challenging its authority.

...U.S. Attorney Patrick Fitzgerald, a Chicago special prosecutor appointed to investigate government leaks, asked the Times in August 2002 and again in July to produce Shenon and Miller for interviews and to produce records of their calls, the lawsuit said.

He threatened to obtain telephone records from third parties if the Times did not cooperate, the suit said. In a letter dated Friday, Deputy Attorney General James Comey said the Justice Department had decided it was "now obliged to proceed" to obtain the records, the lawsuit said.

We note with interest that he took this case in August 2002, which is before the Plame leak.

I feel a post coming on.

[Mark W]

To find where the leaker came from find the Lie in Novak's article.
Novak stated " The CIA says it counter-poliferation officials selected Wilson and ask his wife to contact him"

That the lie.

In following sentence Novak stated ' " I will not answer any questions about my wife" Wilson told me'

It seems the CIA source didn't have any qualms about airing how the CIA went about the choice of Wilson. Even though, what the CIA source said was not true.

I think what Novak said about a weak request, by CIA, is effort cover for his CIA source's non request.

OR

Novak didn't interview anybody. He piece this story together form tid bits ( gossip) supplied by other reporters. I doubt this is possible . But its not that far out considering the last few years.

[The Kid]

What’s Novak got to fear from the investigation? The worst that will happen is that he’ll be thrown in jail until he reveals his sources. He could not have violated the Intelligence Identities Protection Act of 1982 since he does not have access to classified information. (A brief summary of the elements of the “crime” is in the last paragraph here.)

PeterB, Walt, and Red Snapper, er, Fish of the Day are correct. Note too that Novak was indeed even complimentary toward Wilson, even after a possibly unpleasant conversation with the chap.

So what’s taking Fitzgerald so long? Maybe his problem is not Novak, Scooter Libby, Rove, James Carville’s spouse, or other “administration official.” Maybe he’s figured out that Wilson outed his own wife in June 2002, using her position and knowledge to further his crusade against Bush. Why?

In May Wilson talks to Kristof a couple of NY times and contributes $1,000 to John Kerry For President Inc. In June he was disturbed (incensed?) by Rice’s assertion about Iraq’s WMD on the 6/8/03 edition of Meet the Press and is rebuffed in his attempt to get to Rice . He then talks to the WaPo.

Wilson probably found that talking to an MSM reporter is not like working with Nick. A guy like Pincus needs corroboration, so Wilson had Pincus speak with his wife. Look at
Pincus’ WaPo 6/12/03 article and his sourcing. We have “senior administration officials” who could be Libby & Tenet & ??, A former government official who’s Wilson, a senior intelligence official who’s probably Tenet, and a “senior CIA analyst” whom I assert is Plame. Here’s what Pincu reported that this analyst said:

However, a senior CIA analyst said the case "is indicative of larger problems" involving the handling of intelligence about Iraq's alleged chemical, biological and nuclear weapons programs and its links to al Qaeda, which the administration cited as justification for war. "Information not consistent with the administration agenda was discarded and information that was [consistent] was not seriously scrutinized," the analyst said.

“[T]he analyst said.” Why not “he said.”? Might it be that Pincus and WaPo practice safe sex and careful, but safe, sourcing. After reading through bunches of Pincus’ WaPo articles, I find that he does not avoid pronouns. Here you can find this:

A top Republican House aide, speaking on background because his bosses will roll out their bill today, said it will contain two provisions omitted from the Senate measure and opposed by civil liberties groups. [Emphasis added]

Moreover, in all of the reporting this is the only incident where I can find a “CIA analyst” as the source; common is “senior CIA official.” How likely is Pincus to have in his Rolodex a non-senior CIA analyst familiar with Iraqi WMD intelligence to boot? Senora Wilson, please raise your dainty hand. Note too in the other linked articles that the CIA officials quoted are not hostile to the Bush administration’s interpretation of Iraqi WMD intelligence, while Wilson spent some months criticizing intelligence that he’d had no access to, except through his wife.

I realize that this implies that Wilson would disregard his spouse’s position and cover and is therefore a serious charge. Would he trade security for partisan political ends?

Well, we do have some evidence that he might. Below you will find two FEC records of campaign contributions:

Wilson, Joseph C. Mr. IV
4/22/1999 -$1,000.00
Washington, DC 20007
J. C. Wilson Intl. Ventures/Strateg -[Contribution]
GORE 2000 INC

Wilson, Valerie E. Ms.
4/22/1999 $1,000.00
Washington, DC 20007
Brewster-Jennings & Assoc. -[Contribution]
GORE 2000 INC

These two records show that GORE 2000 INC refunded $1,000.00 of the $2,000 Wilson contributed on 3/26/99; the limit at the time was $1,000. Wilson turned around and sent $1,000 in his wife’s name. Perfectly legal as far as campaign finance law goes, but note the employer he listed for his wife. (As we all should now know, Brewster-Jennings & Assoc was a CIA front company, according to D&B, established in Boston, MA in May 1994.) Wilson disclosed no classified information in making the contribution, but did not display really great judgment.

I don’t know if anyone knew or suspected that Pincus spoke with Plame. Nor do I pretend to know the details of what “senior administration officials” told a bunch of reporters, including Novak, about the Wilson trip, although it’s pretty clear that they were simply pushing the story that Wilson went at his wife’s suggestion. Hmmm, that’s what the Senate’s report almost concluded.

Wilson may be the one in trouble. As time passed, he attacked more specific information. Were the sources of his information entirely “open” or did he get some help in the form of classified information from his spouse?

To tie up one other loose end, did Judith Miller get a subpoena because she’d planned on doing an article and had talked to Plame?