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Friday, Jul 10, 2009
The legal maneuvering to determine which Bush administration officials leaked the name of CIA operative Valerie Plame to Bob Novak, Matthew Cooper and other reporters has just begun.
Aug 13, 2004 | Despite this week's dramatic legal ruling in the criminal investigation into which Bush administration officials leaked the name of CIA operative Valerie Plame, it seems the case, reportedly in its final prosecutorial stages, remains many months away from completion. That's because the first of undoubtedly many court appeals has just begun. Experts suggest the case is likely to end up before the Supreme Court, but whether the high court would consider the case a novel issue and decide to hear it remains in doubt. If the justices do take the case, they could once and for all settle the question of whether journalists enjoy a privilege that excludes them from testifying in criminal cases.
The risk for media advocates is that the court could strip away the narrow federal protection journalists have enjoyed over the past three decades. At the same time, the journalists at the center of the current case insist they won't reveal their sources. The complex and shifting legal maneuvering simply highlights why successful investigations into press leaks can be so elusive.
"The question is, who could get to the bottom of this very quickly? The president of the United States," says former U.S. Ambassador Joseph Wilson, Plame's husband. "There has to be an internal investigation into who's betraying the country -- an investigation with sworn affidavits from everybody on his staff -- and the president ought to insist everybody who talked to any reporter about this subject sign a waiver."
But Bush has done none of this. He simply urged White House employees to cooperate with investigators as they try to determine who leaked Plame's name last year to syndicated columnist Robert Novak, the first to report it, on July 14, 2003. The leakers, who also approached Time magazine's Matthew Cooper, appear to have violated the Intelligence Identities Protection Act of 1982, which makes it a crime -- punishable by up to 10 years in prison and a large fine -- to make unauthorized disclosures about a covert agent.
In January, Justice Department investigators asked White House staff members to sign a waiver requesting "that no member of the news media assert any privilege or refuse to answer any questions from federal law enforcement authorities on my behalf or for my benefit." But in February the Washington Post reported, "Most officials declined to sign the form on the advice of their attorneys."
More recently, Lewis "Scooter" Libby, Vice President Cheney's chief of staff and a key player in the Plame leak investigation, told investigators about off-the-record conversations he had last summer with the Post's Glenn Kessler and NBC's Tim Russert, and formally requested that the conversations be disclosed, thereby freeing both reporters from their bond of confidentiality. Both Russert and Kessler agreed to speak with prosecutors, but neither man was a recipient of the leak last summer. Although they are free to talk, neither has come forward to discuss the conversations with prosecutors.
There is no indication that Libby has given Time magazine's Cooper the same permission to come forward and reveal any confidential conversations the two had about Plame last summer. In the July 17, 2003, Time.com article that has ensnared Cooper in the investigation, Cooper and his coauthors wrote, "Some government officials have noted to Time in interviews (as well as to syndicated columnist Robert Novak) that Wilson's wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction." Interestingly, Libby in "an exclusive interview" is quoted on the record in that Time.com story, although not specifically about Plame. Whether Libby asked at any point during that interview to go off the record in order to talk about Wilson's wife remains unknown.
On Monday, U.S. District Chief Judge Thomas Hogan's ruling on the leak investigation was unsealed. In it, he determined that the First Amendment does not protect reporters from testifying before a grand jury investigating such a leak, and ordered that Cooper be confined for refusing to comply with a subpoena issued by special prosecutor Peter Fitzgerald.
Calling the court opinion "devastating," Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota, says Hogan is "deconstructing any attempt to argue constitutionally based privilege" for reporters. Time lawyers have appealed the ruling and are likely to go back to court in September before the D.C. Circuit Court of Appeals. Its ruling could come swiftly or sometime in 2005. Whichever side loses will probably petition the Supreme Court to hear the case, which could decide quickly or stretch the proceedings into 2006.
Fitzgerald is investigating which "two senior administration officials" told Novak that Plame was a CIA operative. Plame's husband, Wilson, was sent by the CIA to Niger in 2002 to check out reports that Iraq had sought to buy yellowcake uranium with which to make nuclear-weapons material. Wilson drew the ire of the administration in 2003 when he went public in an Op-Ed in the New York Times with his account of how the Bush administration had misled the American public during the run-up to the war about Iraq's efforts to secure the yellowcake. Administration officials then leaked Plame's name and occupation to Novak, who did their bidding in a column asserting that Wilson's trip to Niger was arranged by his wife, "an Agency operative on weapons of mass destruction." Leaking Plame's name was an attempt to discredit Wilson by suggesting it was only nepotism that led to his being sent to Niger, a charge Wilson categorically denies.
Following Novak's column by three days, the Time.com story also named Plame. But it was published before Wilson appeared on NBC's "Meet the Press" and noted that whoever had leaked the name of his wife was likely breaking the law. The leaks then abruptly stopped.
