LEAK-GATE
Justice Could Decide Leak Was Not a Crime
Fri Jan 2 21:35:39 2004
64.140.158.102

BuzzFlash Predicted This Months Ago. The Long Period of Ashcroft's Involvement in Cover-up of Plame Affair Was to Ensure that the Evidence Was Arranged in Such a Way that the White House Could Not "Technically" be Charged with a Crime.
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Justice Could Decide Leak Was Not a Crime

By Mike Allen
Washington Post Staff Writer
Friday, January 2, 2004; Page A04
http://www.washingtonpost.com/wp-dyn/articles/A47860-2004Jan1.html

CRAWFORD, Tex., Jan.1 -- The Justice Department investigation into the leak of a CIA agent's identity could conclude that administration officials disclosed the woman's name and occupation to the media but still committed no crime because they did not know she was an undercover operative, legal experts said this week.

"It could be embarrassing but not illegal," said Victoria Toensing, who was chief counsel of the Senate Select Committee on Intelligence when Congress passed the law protecting the identities of undercover agents.

The three-month-old investigation entered a new phase Tuesday when Attorney General John D. Ashcroft recused himself and the Justice Department announced the appointment of a special prosecutor, U.S. Attorney Patrick J. Fitzgerald of Chicago. Democratic presidential candidates complained that the change came too late and did too little to protect against a conflict of interest.

President Bush, when asked Thursday about the probe, said he did not know why Ashcroft had recused himself now.

The Intelligence Identities Protection Act of 1982 specifies that the revelation is a crime only if the accused leaker knew the person was a covert agent. The July newspaper column by Robert D. Novak that touched off the investigation did not specify that Valerie Plame was working undercover, but said she was "an agency operative on weapons of mass destruction." That raises the possibility that the senior administration officials he quoted did not know Plame's status.

"The fact that she was undercover is a classified fact, so it would not be unusual for people to know that she was agency but not know she was undercover," Toensing said.

Plame's husband, former U.S. ambassador Joseph C. Wilson IV, had undertaken a volunteer CIA mission that undercut reports that former Iraqi president Saddam Hussein sought uranium from Africa. Wilson became a public critic of the White House case for invading Iraq, and administration officials have said the revelation about Plame was apparently designed to diminish Wilson's credibility by suggesting he got the assignment because of his wife.

Toensing said that administration efforts to encourage reporters to look into the connection between Plame and Wilson could have been "typical Washington talk" and would not "even begin to qualify as a dirty trick."

Wilson said he believes the White House should be subject to political accountability, as well as legal accountability, if prosecutors discover Bush's aides abetted an attempt to undermine his reputation. "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 said. "Just because it isn't criminal doesn't make it ethically acceptable."

Deputy Attorney General James B. Comey Jr., who announced the new leadership of the investigation, gave no indication of where it was heading. FBI agents have interviewed a variety of senior administration officials and have asked about the possible involvement of top White House aides, including Bush's senior adviser, Karl Rove.

When White House press secretary Scott McClellan was barraged with questions about the case this fall, he said repeatedly he knew of no Bush aides who had "leaked classified information." McClellan would not answer questions about the ethics or propriety of encouraging reporters to write about Plame.

"The subject of this investigation is whether someone leaked classified information," McClellan said. Another time, he said, "The issue here is whether or not someone leaked classified information." McClellan left open the possibility that White House aides had discussed Plame with the media.

A senior administration official said Bush's aides did not intend to mount a legalistic defense, but two GOP legal sources who have discussed the case with the White House said the careful, consistent wording of McClellan's statements was no accident.

"If they could have made a broader denial, they would have," said a lawyer who is close to the White House. "But they seem to be confident they didn't step over the legal line."
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Anatomy of a Leak
The bitter wrangling over Joseph Wilson's trip to Niger
MORE BACKGROUND INFO HERE:
CLICK:

Does the alleged exposure of a CIA agent by administration officials warrant an independent counsel investigation?

YES - 63.4%

Total Votes Cast: 56529

FROM THE OCTOBER 13, 2003 ISSUE OF TIME MAGAZINE; POSTED SUNDAY, OCTOBER 5, 2003
http://www.time.com/time/covers/1101031013/

Bush, who has lacked a sense of command in public for some weeks now, looked a little steadier than his aides, but the steely hang-the-guilty determination he reserves for terrorists and other evildoers was missing when it came to discussing the possible leakers in his midst. Asked about the accusations concerning Rove, his political alter ego, Bush said, "Listen, I know of nobody—I don't know of anybody in my Administration who leaked classified information." Bush seemed to emphasize those last two words as if hanging on to a legal life preserver in choppy seas. "If somebody did leak classified information, I'd like to know it, and we'll take the appropriate action." Then he added, "This investigation is a good thing."


Page 4 - The War over the Leak (Cont'd)
http://www.time.com/time/covers/1101031013/story4.html

But the White House was already shaping the outline of a defense in the event any leakers are found by the fbi or come forward on their own. White House officials argued privately that it was possible that whoever leaked Plame's identity may not have known she was undercover, as the law requires for prosecution. While the Administration suggested that perhaps hundreds of people knew of Plame's spywork, some in the White House admitted that the West Wing was on the hunt for Clinton-like technicalities to skate through. "I did not have conversations with that man," one wry aide quipped. Bush has seldom been in this position before—that is, on the political defensive. Republicans watching the White House wondered last week how long it would take for Bush to get his mojo back, and several even reminisced fondly about the way Bill Clinton would fight hardest when all seemed lost. "Bush is the opposite of Clinton," said one, trying not to sound worried. "He's all offense and no defense. Clinton was awesome when his back was against the wall. Bush doesn't know where to turn."

The Justice Department is trying to make a swift start, perhaps to forestall calls for a special counsel. The clamor faded a bit last week, but it will be back. So half a dozen agents are on the case, government sources told TIME, led by Inspector John Eckenrode, a seasoned veteran of leak probes and other sensitive investigations. Plame was interviewed by the fbi for the first time last Friday. But if the probers narrow their scope to a shortlist of possible leakers, the handling of the case could become very controversial very quickly. fbi agents have already been asking reporters for their voluntary cooperation—it never hurts to try—but what happens if everyone in the White House denies being the leaker and all the reporters involved refuse to name their sources?

One irony here is that a special counsel might actually help the White House keep the story off the front page. Damaging as they were in the Clinton years, well-managed special counsels have the one advantage of theoretically putting everything under a cone of silence and allowing a President to move on. Some legal experts have noted that special counsels are needed not to open probes but to end them. "DOJ won't be able to make this case," says a former Clinton Justice official, noting the difficulty of leak hunts, "but it also won't be able to close it because nobody will believe them." That's why, notes George Terwilliger, a former deputy attorney general in the first Bush Administration, "in some cases, it's absolutely true that due to personalities and circumstances, the perception of the integrity of the resulting judgment will be enhanced if some outside person ... is brought in."

Just because most experts predict the legal damage to be limited does not mean the political fight will end soon. One of the reasons the fight feels even uglier and more desperate than usual is that it comes at a time when almost every political institution seems tarnished. To the extent that the Bush Administration has to answer for David Kay's failure to find any WMD in Iraq, its answer is that fault lies with the shortcomings of the intelligence community. The spies, for their part, have been quick to remind their allies on Capitol Hill of the White House's and hard-liners' refusal to listen to their footnotes, warnings and caveats last year. And the Democrats, who had forgotten what it was like even to glimpse the political upper hand, seem just a little bit too happy that the WMD hunters have come up empty-handed and the situation in Iraq is becoming an ever greater liability for the President. With the White House, the cia, Democrats and Republicans so busy covering their tracks, it is no wonder that public confidence in their judgments and motives is shaken when the nation's challenges seem only to be growing.

—Reported by Timothy J. Burger, Massimo Calabresi, James Carney, Matthew Cooper, John F. Dickerson, Viveca Novak, Elaine Shannon, Karen Tumulty, Douglas Waller and Michael Weisskopf/Washington

http://www.time.com/time/covers/1101031013/story4.html
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This White House Scandal Finally Tips the Scale!
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Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.)
(governing disclosures that could expose confidential Government agents)
http://foi.missouri.edu/bushinfopolicies/protection.html