Leak Riddle: Who's Playing Whom?

In many ways, today's probe of the Plame leak seems to be -- like the endless Whitewater investigation of President Bill Clinton -- just the most recent criminalizing of bitter policy differences in Washington, political warfare by other means, to paraphrase the Prussian philosopher Karl von Clausewitz. Ironically, whoever leaked Plame's identity may not have broken the law at all, despite the ongoing probe. As Slate media critic Jack Shafer has pointed out, the 1982 Intelligence Identities Protection Act sets the bar very high for prosecuting this kind of disclosure, requiring that leakers first must have been "authorized" to have classified information and then disclosed it "intentionally." Even lawyers who drafted that law say that it wasn't intended for cases like that of Plame. In fact, former Justice Department deputy assistant attorney general Victoria Toensing believes it is "probable" that the prosecutors' probe would have been halted if only it had been challenged on these grounds early on in district court. Some media lawyers admit privately that they wish they had done so but say that the grand jury investigation has now taken on a life of its own by expanding to whether administration officials tried to cover up the leak.

Perjury and obstruction of justice are legal terms, of course; but at the very least, participants in the Plame Game seem to be afflicted with the kind of selective memory endemic to leak investigations. For example, Rove steadfastly denied any involvement in the Plame leak -- until that notorious e-mail outed him as Time's "double super secret" source. Then Rove admitted that he had talked to the press about Plame, but argued through his lawyer that it didn't break the law. Why? Because Rove claimed to have learned of Plame's CIA connection not from classified documents but from other reporters .

Maybe. But my experience has been that reporters seldom gossip about such classified matters as the identity of an undercover CIA operative, if only because they rarely receive such information in the first place and guard it when they do.

In my own brushes with the law over leaks, I always managed to avoid a final showdown with authorities who wanted to know the identity of my sources. Once, a polite threat to reveal incriminating information about a subject on the witness stand led to a prompt dismissal of a subpoena. Another time, I avoided having to testify in a federal grand jury about my sources by agreeing instead to let prosecutors subpoena my original copy of a diary kept by one of the cocaine dealers who supplied Marion Barry, then the mayor of Washington, who was under investigation for drug use. These arrangements weren't perfect, but they kept me out of jail while guarding the confidentiality of my sources.

Similar compromises have occurred with at least some of the journalists who were subpoenaed in the Plame case. Reporters for The Washington Post and NBC negotiated deals early on to restrict their testimony and limit the exposure of their sources. This strategy was apparently more successful than Time magazine's, which initially resisted but then ended up naming names before the grand jury as well as turning over reporting notes and e-mails. Columnist Novak won't say what deal, if any, he struck with prosecutors; most analysts believe he must have cooperated in some fashion to avoid Miller's fate of being jailed for contempt of court.

As for Rove, he's still Bush's top political strategist in the White House -- unless he, too, succumbs to the onslaught of leaking that he knows all too well.

Author's e-mail : feldy@gwu.edu

Mark Feldstein is director of the journalism program and associate professor of media and public affairs at George Washington University. His book "Poisoning the Press: Richard Nixon, Jack Anderson and the Rise of the White House Attack Machine" will be published next year by Farrar, Straus & Giroux.