http://writ.news.findlaw.com/dean/20031010.html
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A Further Look At The Criminal ChargesThat May Arise From the Plame Scandal, In Which a CIA Agent's Cover Was Blown
By JOHN W. DEAN
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Friday, Oct. 10, 2003
Slowly, and steadily, more information about the unauthorized disclosure of Valerie Plame's CIA identity, and the reasons for it, have become available. As it has, I've been examining, assimilating, and trying to understand it. I've also realized that the apparent criminal activity may be more widespread than it initially appeared. (In an earlier column, I offered a preliminary discussion of this issue.)
News accounts, principally from The New York Times, The Washington Post, The Wall Street Journal, The Nation, ABC News and NBC News have amplified on original reports. Information available from the White House has also added to the story. In light of this additional information, it is obvious that the Bush presidency has what might be politically diagnosed as a nasty subcutaneous problem - an ugly little sore that is festering and spreading.
It is too soon to know if this mess is malignant. Or terminal. Yet, this I do know: If mistreated, or untreated, this growing problem is going to become lethal for the Bush presidency. This is the Administration's first serious political scandal, and it is replete with legal problems and criminal implications.
To get a better understanding of this scandal, I've parsed the evidence publicly available as of now, in an effort to determine what is really going on - who did what, and why - and to look closer at the potential criminality involved.
The Apparent Honorable Motives Of Ambassador Wilson
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Former ambassador Joseph Wilson is a man with extensive knowledge of Iraq. He served as charge d'affaires at the US Embassy in Baghdad during Desert Shield, and has spent two decades in public service relating to foreign affairs.
Based on his experience and judgment, Wilson began to warn others about the dangers of going to war with Iraq. Starting around April 2002, Wilson became a regular on CNN, Fox, MSNBC, ABC, NBC and CBS, urging that caution should be used, and alternatives to a war on Iraq considered.
Some have charged that Wilson is a political partisan - a stalking horse for Democrats. But the charges don't ring true. The Washington Times reported that Wilson said, "Neoconservatives and religious conservatives have hijacked this administration, and I consider myself on a personal mission to destroy both." But so what? I know hordes of Republicans who would support such as effort to take their party back from neocons and religious right - probably starting with George H.W. Bush, and his former advisers. This view hardly makes Wilson a pawn of the Democratic Party.
In my view, Wilson seems, instead, to be a supporter of the greater good. By March 3, 2003, when he wrote an essay for The Nation, he was mincing no words. He said that the Bush Administration's imminent war with Iraq was not about weapons of mass destruction, nor terrorism (since it would only result in more terrorism), nor about liberating oppressed people. Rather, he argued, the true objective of the war was an effort to impose a Pax Americana on the region. He concluded that because we had no business building empires, we had no business going to war.
Wilson was (and is) sincere, articulate, and knowledgeable, with a pleasing personality and manner. No doubt, his commentary was getting under the skin of the Bush White House. His refusal to embrace preemptive war with Iraq must have given pause to those who listened to him. Here was a man who had supported George H.W. Bush in the first Gulf war, and had heroically confronted Saddam's efforts at intimidation. And he was telling the world that we should not march to Baghdad, particularly alone and preemptively.
As The Weekly Standard, the voice of neoconservatism, which is regular reading at the Bush White House, notes, "Bush administration officials would have been well advised" to better understand Joe Wilson, "before getting drawn into a fight with him in July." And they argue that Wilson "loves the spotlight." So what? Who in public life - other than Dick Cheney - does not enjoy the spotlight?
The Tipping Point For The Administration: The Niger Hoax Revealed
The evidence is clear that the White House picked a fight with Wilson after he undercut the president's case for war.
On July 6, 2003 - in an OpEd column for The New York Times, and an extensive interview with The Washington Post - Wilson said that he had found no evidence that Iraq was purchasing uranium from Niger. (Wilson had been sent by the CIA to make such a determination seventeen months earlier, in February 2002.)
That put part of Bush's State of the Union in doubt (as I discussed in an earlier column) and forced the White House to retract at least sixteen words of it. The Administration said that the CIA was to blame. (Later, Bush also claimed that his sixteen words really were technically correct, because he said in his State of the Union that he was relying on British intelligence, not his own, but that point hardly quieted the scandal.).
To counter the revelation of bogus information in the State of the Union address, the Bush Administration also went after Wilson's credibility - claiming he was a partisan, that he had been sent by low level CIA officials, even suggesting that Wilson's report actually supported the President.
A Closer Look At The Plame Leak
Soon columnist Bob Novak entered the fray. Among other questions, he wondered why the Bush Administration had sent a former member of Clinton's National Security Council (head of the African section) to Niger in the first place.
A leak gave Novak his answer: Wilson's wife, a CIA weapons of mass destruction operative, asked for him to be sent there. This answer suggested nepotism; in fact, Wilson was paid only for his travel expenses - undertaking the assignment because he was qualified, and a willing public servant. It may have even suggested, to some, a sinister plot to make sure the Niger uranium claim was discredited.
In a July 14, 2003 column, Novak printed the leak, and named Valerie Plame Wilson - thus blowing her cover, and putting her and her husband in jeopardy. Novak confirmed that Wilson's mission to Niger was authorized at a low level in the CIA. He also reported that "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 report that Iraq was purchasing uranium from Niger]." Novak says, "CIA officials did not regard Wilson's intelligence as definitive."
The same day, Time's July 21 issue hit the newsstands. It offered a far more detailed account of the preparation of the State of the Union - including an account of who was, and was not, aware of the problems with it. It also offered a more detailed story of Wilson's trip to Niger: "Wilson seemed like a wise choice for the mission. He had been a U.S. ambassador to Gabon and had actually been the last American to speak with Saddam before the first Gulf War. Wilson spent eight days sleuthing in Niger, meeting with current and former government officials and businessmen; he came away convinced that the allegations were untrue."
It appears that Time may have talked with Wilson off the record. It also spoke on the record with Lewis Libby in the vice president's office, and a member of the NSC staff. Time did not report anything about Valerie Plame Wilson - and certainly did not blow her cover.
Later, on July 17, 2003, in an online article entitled "War on Wilson?" Time did, however, mention that "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." This article included an on-the-record interview with Wilson. He said that his wife was not the person who suggested he take the trip; rather, she merely asked if he would talk to her colleagues. The article discusses the White House attack machinery that is currently targeting Wilson.
The Leak Itself Becomes News, and the Administration Is Implicated
Other magazines and newspapers also were curious about how the leak of Valerie Plame Wilson's identity had occurred, and whether the Bush Administration had caused it, or at least was capitalizing on it.
On September 28, The Washington Post reported that according "a senior administration official," that "two top White House officials" who may or may not have been Novak's source had called at least "six journalists" to reveal the identity and occupation of Wilson's wife. The Post story notes, "It is rare for one Bush administration official to turn on another" - suggesting the Post's source was disgusted with the leaker.
In the October 13 Newsweek, Andrea Mitchell is quoted as saying, "I heard in the White House that people were touting the Novak column and that was the real story." Newsweek also reported that Wilson had received a call from Chris Matthews, of MSNBC's "Hardball," who told him, "I just got off the phone with Karl Rove, who said your wife was fair game."
In short, after the leak it certainly appears that the White House spread the word, further exploiting the leak.
The White House Need Not Have Leaked to Have Committed a Crime
Bush's press secretary Scott McClellan has chosen his words carefully in denying that anyone at the White House was involved with the leak. To remain credible, a press secretary cannot be caught in either a lie, or a serious misstatement based on ignorance.
McClellan's response reminded me of the Nixon Administration. Nixon's press secretary, Ron Zeigler, took the line that no one presently employed in his administration was involved in the Watergate break-in. That was technically correct, but only technically.
It is entirely possible that no one at the Bush "White House" or on the President's personal staff, was involved in the initial leak to Novak. It could have been someone at the National Security Council, which is related to the Bush White House but not part of it.
In fact, Novak wrote in one of his later columns, that the leak came from a person who was "no partisan gunslinger." That sounds like an NSC staffer to me. And as Newsweek also reported (you can count on Michael Isikoff to dig this stuff out), Valerie Plame's CIA identity was likely known to senior intelligence people on the NSC staff, for apparently one of them had worked with Ms. Plame at the CIA.
But even if the White House was not initially involved with the leak, it has exploited it. As a result, it may have opened itself to additional criminal charges under the federal conspiracy statute.
Why the Federal Conspiracy and Fraud Statutes May Apply Here
This elegantly simple law has snared countless people working for, or with, the federal government. Suppose a conspiracy is in progress. 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.
Most likely, in this instance the conspiracy would be a conspiracy to defraud - for the broad federal fraud statute, too, may apply here. If two federal government employees agree to undertake actions that are not within the scope of their employment, they can be found guilty of defrauding the U.S. by depriving it of the "faithful and honest services of its employee." 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." (Emphasis added.) 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.
If Newsweek is correct that Karl Rove declared Valerie Plame Wilson "fair game," then he should make sure he's got a good criminal lawyer, for he made need one. I've only suggested the most obvious criminal statute that might come into play for those who exploit the leak of a CIA asset's identity. There are others.
John W. Dean, a FindLaw columnist, is a former counsel to the President.
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Dean wrote this article in October of 2003. Fitzgerald is looking into this from all angles, and you can bet your bottom dollar criminal charges are forthcoming probably hitting some of the top people in Bush's administration - if not Bush too.
