News and events revolving around the ousting of CIA agent Valerie Plame.

Saturday, October 29, 2005

Charges Shed Little Light on Some Underlying Questions - New York Times

WASHINGTON, Oct. 28 - Among the questions left unanswered in the C.I.A. leak case are the two most basic ones: who first told the columnist Robert D. Novak that the wife of Joseph C. Wilson IV was a C.I.A. operative, and was her exposure a crime?

There was every indication on Friday that the special counsel, Patrick J. Fitzgerald, had resolved the first question, at least to his own satisfaction. (Lawyers in the case have said as much, and Mr. Fitzgerald, with a bit of bravado, said he did not expect that further investigation would produce revelations beyond what he already knows.)

But Mr. Fitzgerald refused to identify Mr. Novak's source, and his answers to that and other questions left an air of murkiness about the actions he was appointed to investigate.

Mr. Fitzgerald was asked in December 2003 to investigate "the alleged unauthorized disclosure of a C.I.A. employee's identity," which first occurred publicly in Mr. Novak's column of July 14, 2003. Mr. Fitzgerald said on Friday that there was no doubt that the identity of Mr. Wilson's wife, Valerie Wilson, had been classified information at the time it was disclosed.

But the indictment that Mr. Fitzgerald brought on Friday mentioned Mr. Novak's column only obliquely. It charged I. Lewis Libby Jr., Vice President Dick Cheney's chief of staff, with five felony counts, but all were related to lying to F.B.I. agents or the grand jury about his actions, and none dealt with the second question - whether he had broken the law by discussing Ms. Wilson's identity with three reporters before Mr. Novak's column appeared.

Mr. Fitzgerald had initially been expected to seek charges under a narrow statute that makes it illegal for a government official to knowingly disclose the identity of a confidential government agent. Another possibility that had been the subject of some speculation was that he might seek to apply a broader provision that makes it a crime to disclose classified information.

Mr. Fitzgerald would not say on Friday whether he believed that Mr. Libby had in fact violated either law. He said that question had been impossible to answer, because Mr. Libby's misleading answers to investigators and the grand jury had obscured what actually took place. He likened his problem to that of a baseball umpire who was unable to make a call because of sand thrown in his eyes.

The prosecutor argued that the charges he brought against Mr. Libby, for perjury, false statements and obstruction of justice, were just as serious as those he might have brought against Mr. Libby for unauthorized disclosure. He called them "a serious breach of the public trust," and he said the disclosure of Ms. Wilson's status had been a setback to the Central Intelligence Agency and its employees, at minimum as a deterrent to the recruiting of new officers.

But Mr. Fitzgerald also made clear that there were legal obstacles to bringing charges under statutes that might make disclosing her identity a crime. He never claimed, either in his indictment or his public statements, that Mr. Libby had known of Ms. Wilson's covert status, a condition that would be a prerequisite to bringing charges under the narrower law, the Intelligence Identities Protection Act of 1982.

As for using the law prohibiting the disclosure of classified information, under the Espionage Act, Mr. Fitzgerald said he regarded the statute as more limited and flexible than its British counterpart, the Official Secrets Act.

Even though the indictment described Mr. Libby as having given classified information concerning the identity of a C.I.A. officer to individuals not eligible to receive it, Mr. Fitzgerald made clear that he had been reluctant to use such a charge. "I think knowing that he gave the information to someone who was outside the government not entitled to receive it, and knowing that the information was classified, is not enough," Mr. Fitzgerald said, answering a question about why he had not tried to apply that statute to Mr. Libby. "You need to know at the time that he transmitted the information he appreciated that it was classified information, that he knew it or acted, you know, in certain statutes with recklessness."

"You should be very careful in applying that law, because there are a lot of interests that could be implicated in making sure that you pick the right case to charge that statute," Mr. Fitzgerald said. At the end of the day, he added, "when you do a criminal case, if you find a violation, it doesn't really in the end matter what statute you use if you vindicate the interest."

Mr. Fitzgerald did not address why he had not sought to charge Mr. Libby or others with conspiracy, for the trading of information within the White House that preceded the disclosures about Ms. Wilson to reporters. He made no apology for being tight-lipped. "If we're not going to charge someone with a crime, if we decide that a person did not commit a crime, that we cannot prove a crime," he said, then a prosecutor could not then talk about people who were not charged.

As for Mr. Novak's source, one of the "two senior administration officials" he cited as having told him about Ms. Wilson was identified this summer. It was Karl Rove, the deputy chief of staff, who has admitted having a telephone conversation with Mr. Novak about the issue, and remains under investigation by Mr. Fitzgerald.

As for the other source, it remains possible that Mr. Novak will resolve the mystery himself, in a column, or that the answer will come from the source himself, or in the course of any trial of Mr. Libby. But for now, the identity of that person - a person that Mr. Novak described in an October 2003 column as "no partisan gunslinger" -is likely to remain the stuff of Washington guessing games.


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