A Leak's Wider Ripples
It's hard to fathom the continuing legal squeeze on Time magazine's Matthew Cooper and the New York Times's Judith Miller to reveal their sources in a White House leak investigation. Unless, that is, the real concern of special counsel Patrick Fitzgerald isn't just the leak but possible perjury by a senior Bush administration official.
If Fitzgerald's investigation has now expanded to include perjury, as some close followers of the case suspect, that sharpens the dilemma for the journalists involved. It's one thing to protect the identity of a confidential source, even if that person may have violated the law by disclosing the identity of a covert intelligence agent. But it is arguably quite a different matter if the reporter has reason to believe a source lied to a grand jury. Does a reporter's confidentiality agreement extend to protecting a cover-up?
Though the perjury issue hasn't surfaced in most discussions of the case, it's buried between the lines of the hundreds of pages of memos, briefs and other legal documents. Unless perjury is one of Fitzgerald's concerns, his tireless pursuit of Cooper and Miller is difficult to understand. As was said of Melville's "Moby-Dick," this is more than a story about a fish.
The case is rooted in President Bush's January 2003 claim that Iraq had tried to acquire uranium from Africa for its alleged nuclear weapons program. On July 6, 2003, a former ambassador named Joseph Wilson, who had been sent by the CIA to Niger in 2002 to investigate the uranium claim, published an op-ed piece in the New York Times saying that he hadn't found any credible evidence to support the charge.
Administration officials responded with a pointed leak. On July 14 syndicated columnist Robert D. Novak published an article outing Wilson's wife, Valerie Plame, as "an agency operative on weapons of mass destruction" and citing "two senior administration officials" who believed she had suggested sending her husband to Niger. Three days later, Cooper published a similar report about Plame in Time's online edition, attributing it to "some government officials." Miller of the Times, meanwhile, met on July 8 with a government official with whom she may have discussed the Plame matter, according to a subpoena filed in the case, but she never published a story.
Because Plame had served as a deep-cover CIA operative, the disclosure may have violated what's known as the Intelligence Identities Protection Act. But a prosecutor would have to prove that the leaker had "authorized access" to classified information revealing the agent's identity and "intentionally" disclosed it. And the prosecutor would also have to show the CIA had been "taking affirmative measures to conceal such agent's intelligence relationship."
Fitzgerald was appointed special counsel in December 2003 and began pursuing the case aggressively. The White House had turned over telephone logs, e-mails and memos to the FBI in October 2003, so Fitzgerald presumably had records of who had called whom. The prosecutor then demanded sworn testimony from a number of senior aides. According to the New York Times, the FBI interviewed Karl Rove and top vice presidential adviser Lewis "Scooter" Libby, and a grand jury heard testimony from press secretary Scott McClellan, Cheney aide Mary Matalin and others. Fitzgerald even conducted interviews with President Bush and Vice President Cheney.
Fitzgerald subpoenaed journalists to testify about their conversations with the possible leakers. Three reporters agreed to answer limited questions, and they disappeared from the case. Novak, the instigator, also vanished from any public record of the investigation, although there's much speculation that he cooperated with Fitzgerald. Cooper agreed to talk about one source who had waived confidentiality, but he refused to discuss others. Miller refused to provide any testimony. A federal judge has ordered Cooper and Miller to jail, and the reporters are asking the Supreme Court to take the case.
Here's where it gets complicated: Fitzgerald's legal quest makes little sense to me as a leak investigation. The law is fuzzy, the evidence is ambiguous, and the case would be hard to prove. But every good prosecutor hates perjury above all. And on its face, this case raises the possibility that one of the senior administration officials who talked with Cooper or Miller has denied doing so, under oath. Otherwise, Fitzgerald would have been finished months ago.
For journalists, the case raises agonizing issues: Where is the dividing line between journalistic ethics, which demand that reporters protect their sources, and ordinary ethics, which say people should cooperate with law enforcement if they know about possible criminal activity? Do journalists have a special status that exempts them, in certain cases, from the normal responsibilities of citizenship? But this case should worry most of all any White House insider who may have talked with reporters about Valerie Plame and then lied about it under oath.