Media baselessly attributed legal significance to whether White House officials revealed Plame's covert status, name

››› ››› ANDREW SEIFTER

In recent days, several media outlets have suggested in their reporting that there might be some legal significance to reports that White House senior adviser Karl Rove and Vice President Dick Cheney's chief of staff I. Lewis "Scooter" Libby 1) mentioned only former clandestine CIA operative Valerie Plame's affiliation with the CIA and not her covert status, and 2) never actually identified Plame -- also known as Valerie Wilson -- by name but only as the wife of former ambassador Joseph C. Wilson IV. In fact, whether Plame's covert status and actual name were mentioned to reporters likely has no bearing on whether there was a violation of the law.

On the October 16 broadcast of ABC's World News Tonight, senior foreign affairs correspondent Jonathan Karl included New York Times reporter Judith Miller's claim that Libby did not reveal Plame's name or that she was "an undercover agent" to Miller among a list of reasons that the case is "not cut-and-dried":

KARL: The way New York Times reporter Judith Miller tells the story, the vice president's top aide, Scooter Libby, talked to her three times about the fact that Joseph Wilson's wife, Valerie Plame, worked at the CIA. The White House long ago denied Libby leaked Plame's identity. The more important question, though, may be what Libby told the grand jury.

ROBERT BENNETT (attorney for Miller): If he said that he had not talked to Judy about these things or didn't talk about the wife, then he's got a problem.

KARL: But as with much of this case, it's not cut-and-dried. Miller says Libby told her Wilson's wife worked at the CIA, but did not mention her name or say she was an undercover agent. Yet, the name "Valerie Flame" appears in Miller's notes from her interviews with Libby. She says she doesn't know why she wrote the name or misspelled it, but that she does not believe it came from Libby.

Similarly, on the October 17 edition of MSNBC's Hardball with Chris Matthews, former Virginia governor and Republican National Committee chairman James S. Gilmore III suggested that merely noting that Plame worked at the CIA, without noting her undercover status, is "not criminal": "[T]he simple fact that you say this lady works over there and that she sent her husband over to Africa -- that, in and of itself, as I think most everybody agrees, is not criminal." Matthews agreed: "Right. But it is factual?" An October 16 New York Times report and an October 17 Washington Post article also noted -- without clairification -- that Libby reportedly claimed in his grand jury testimony that he did not mention Plame's covert status.

But whether Libby told Miller that Plame was a covert operative is apparently not relevant to the question of whether he disclosed classified information. The very fact that she worked at the CIA was apparently classified; according to a July 21 Washington Post report, a 2003 State Department memo -- which was likely read by top administration officials during a trip to Africa -- earmarked a section mentioning Plame as classified, even though it "did not describe her status as covert." Presumably an undercover CIA agent would not pose as a non-clandestine CIA analyst in order to hide her undercover status, and indeed, Plame's cover was reportedly as a private consultant. So Libby and others could not avoid legal liability by claiming that they did not out Plame as a covert operative, but merely disclosed that she worked at the CIA.

Other reports suggested that it might be legally significant that Libby and others might not have mentioned Plame by name to reporters but, rather, simply identified her as Wilson's wife. On October 17, USA Today reported that whether Libby revealed her actual name to Miller "is important legally" because it "could determine whether her 'identity' was revealed." In an October 16 article, The Los Angeles Times reported that, although it is a felony to leak the "identity" of a clandestine agent to someone not authorized to receive classified information, "the law is ambiguous on whether it is a crime to release information without a name." Both papers noted that the revelation of Plame's "identity" would be illegal, but then suggested that it might be necessary for a name to be uttered in order for that identity to have been revealed.

Similarly, on the October 17 edition of Fox News' Special Report with Brit Hume, correspondent Major Garrett reported: "Experts say, unless a special prosecutor can establish through evidence or other testimony that Libby actually leaked the name of Valerie Plame, the vice president's chief of staff may escape indictment."

Conservative pundits have also suggested that Plame's name would have to be leaked for a crime to have been committed. For example, on the October 17 edition of Fox News' Hannity & Colmes, Washington Times editorial page editor Tony Blankley declared: "[I]f she's [Miller] supposed to be the prime witness against Scooter Libby, and she doesn't even know that he mentioned the name and claims that it may not have come from him, that doesn't seem to advance it [the legal case for indictment]."

But the suggestion that leakers would have had to disclose Plame's actual name for the leak to constitute a crime is nonsensical; it presumes that no violation would have occurred if Libby had merely told a reporter Plame's home address, Social Security number, detailed physical description, and mother's maiden name -- but had omitted her name. The fact that Libby may have identified Plame only as Joe Wilson's wife would have required an additional five minutes' work from any reporter trying to determine her name: As Media Matters has documented, a simple Google search conducted at the time that Libby disclosed to Miller that Wilson's wife worked at the CIA would have turned up the name of Wilson's wife.

Rove's attorney has acknowledged that it is "too legalistic" to distinguish between disclosing Plame's "identity" and her name, and even the Republican lawyer who helped write one of the potentially applicable laws -- the 1982 Intelligence Identities Protection Act (IIPA) -- agreed it is "not an important part of whether this is a crime or not." Republican attorney Victoria Toensing, who was President Reagan's deputy assistant attorney general and chief counsel to former Sen. Barry Goldwater (R-AZ), stated on the July 19 edition of National Public Radio's Morning Edition that whether White House officials leaked Plame's name is "not an important part of whether this is a crime or not":

LINDA WERTHEIMER (NPR senior national correspondent): Victoria Toensing was chief counsel to the Senate Intelligence Committee and was involved in drafting the law. She also served in the Reagan administration as deputy assistant attorney general. I asked her to clarify a couple of basic points, first from what we know now, White House Deputy Chief of Staff Karl Rove did not identify CIA officer Valerie Plame by name. He said she was the wife of Ambassador Joe Wilson. I asked if the law requires revealing a name.

TOENSING: No, it would not. That's not an important part of whether this is a crime or not.

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