NYT : C.I.A. Inquiry May Hinge on What the Leaker Knew

July 18, 2005
By ADAM LIPTAK

Neither of the two White House officials who are known to have discussed a C.I.A. officer with a reporter for Time magazine appear to have named her. But that fact by itself, legal experts said, will not provide the officials with a defense to charges under a 1982 law that makes it a crime to identify covert operatives in some circumstances.
"The statute does not require that the name be disclosed," Jeffrey H. Smith, a former general counsel for the Central Intelligence Agency who is now in private practice at Arnold & Porter in Washington, said on Sunday. "It just says that you cannot intentionally disclose any information identifying a covert agent."
It is more significant in the criminal inquiry, experts said, that no evidence has come to light establishing that the officials knew that the operative - Valerie Wilson, sometimes referred to by her maiden name, Valerie Plame - was or had been a covert officer or that they conveyed her covert status to reporters.
In the current issue of Time magazine and in television appearances on Sunday, Matthew Cooper, the Time reporter, gave a detailed account of his interactions with two administration officials, Karl Rove, the senior White House adviser, and I. Lewis Libby, Vice President Dick Cheney's chief of staff.
Both men, Mr. Cooper said, addressed questions raised by an Op-Ed article by Ms. Wilson's husband, Joseph C. Wilson IV, a former diplomat, published in The New York Times in July 2003. In the article, Mr. Wilson said that a trip he took to Africa in 2002 for the C.I.A. had led him to conclude that some of the intelligence related to the Iraqi nuclear weapons program had been "twisted to exaggerate the Iraqi threat" when the Bush administration made its case for going to war.
It was that fact that Mr. Wilson's wife worked for the agency, rather than her name or covert status, that Mr. Rove conveyed, Mr. Cooper said.
"Before that conversation," he said on the CNN program "Reliable Sources," "I had never heard about anything about Joe Wilson's wife. After that conversation, I knew that she worked at the C.I.A. and worked on W.M.D. issues. But as I made clear to the grand jury, I'm certain Rove never used her exact name and certainly never indicated she had a covert status."
Mr. Cooper said his later conversation with Mr. Libby was along the same lines.
"Like Rove," Mr. Cooper wrote in an article in Time to be published Monday, "Libby never used Valerie Plame's name or indicated that her status was covert."
The question of whether the officials used Ms. Wilson's name "is a nonstarter" under the Intelligence Identities Protection Act of 1982, said Abner Greene, a law professor at Fordham University. Referring to her as Mr. Wilson's wife is sufficient to satisfy one aspect of the law, which prohibits the disclosure of "any information identifying" the "covert agent."
But the law has other requirements.
A prosecutor seeking to establish a violation of the law has to show an intentional disclosure by someone with authorized access to classified information. That person must also know that the disclosure identifies a covert operative "and that the United States was taking affirmative measures to conceal such covert agent's intelligence relationship to the Unites States." A covert operative is defined as someone whose identity is classified information and who has served outside the United States within the last five years.
An operative's covert status is a formal designation made by the C.I.A., Mr. Smith said. Given that the agency referred the matter to the Justice Department for possible prosecution in the first place, there is good reason to think that it considered Ms. Wilson covert.
The question of whether Ms. Wilson served abroad in the five-year period is the subject of dispute. An article in USA Today recently noted that Mr. Wilson did not refer to any foreign assignments by himself or his wife after June 1997 in his book, "The Politics of Truth," which was published last year. The syndicated columnist Robert D. Novak first disclosed Ms. Wilson's name and status in July 2003, six years later.
Christopher Wolf, a lawyer with Proskauer Rose in Washington who is advising the Wilsons, declined to comment on particular assignments that Ms. Wilson might have undertaken.
Speaking generally, he said: "I don't believe the statute requires a permanent assignment abroad. It can be trips abroad."
The law's purpose, moreover, appears to be broader than simply protecting a given operative's security.
Judge David S. Tatel, in the public portion of his opinion in the federal appeals court's decision upholding the contempt sanctions against two reporters in February, said the identification of Ms. Wilson " also may have endangered friends and associates from whom she might have gathered information in the past."
One of the many unanswered questions in the case is why Ms. Wilson was so often referred to by her maiden name.
As Ms. Wilson has consistently used her married name since her marriage in 1998, it might mean the original source of Mr. Novak's information was someone who knew her before 1998. But on the other hand, Mr. Wilson said in a recent interview, "it could be as simple as someone Googling my name." He said that a biography posted on at least two Web sites describe him as "married to the former Valerie Plame."
The 1982 law was prompted by the 1975 assassination of Richard Welch, the C.I.A. station chief in Athens. He had been identified 18 months earlier in a magazine called CounterSpy.
Whether the magazine helped set the stage for Mr. Welch's slaying by the terrorist group called November 17 has never been established. But the practice of exposing covert intelligence officers, which became something of a cottage industry in the 1970's, certainly led to enactment of the 1982 law.
Mr. Fitzgerald's investigation may have, in any event, moved beyond the 1982 law. He may also be examining the accounts given by officials to investigators and the grand jury in light of Mr. Cooper's testimony.
If the differences are significant, Mr. Fitzgerald could consider filing obstruction of justice or perjury charges.
"They would line up what Cooper says and what his notes say with what Rove told the grand jury on three occasions and see to what extent there is a material variation," said Kirby D. Behre, a former federal prosecutor who is now with Paul, Hastings, Janofsky & Walker in Washington.
But prosecutors are generally reluctant to pursue such cases without strong evidence.
"If he's a judicious prosecutor," said Frank C. Razzano, a former federal prosecutor who is now with Dickstein Shapiro Morin & Oshinsky in Washington, "he's not going to want to bring an indictment against Karl Rove based upon a he-said, she-said. He's going to want to corroborate it."