In an October 21 article, USA Today reporters Judy Keen and Mark Memmott relied exclusively on a reading of the law by Republican operative Victoria Toensing in presenting the question of whether senior White House officials may have committed a crime by outing CIA operative Valerie Plame.
The article marked at least the second time that Memmott cited Toensing -- without offering a contrary legal perspective -- in reporting that leaking Plame's identity likely wasn't a crime. Toensing has made frequent media appearances in defense of the Bush administration and the alleged leakers, but she is not the only voice on this issue. Former Nixon White House counsel John W. Dean III argued in 2003 that leaking Plame's identity might constitute a violation of the 1917 Espionage Act and, more recently, that it could also violate Title 18, United States Code, Section 641, which addresses the theft of information and, Dean wrote, contains "broad language [that] covers leaks" and "has now been used to cover just such actions."
The article also misleadingly reported that Novak "hasn't publicly identified his two sources." In fact, White House senior adviser Karl Rove is known to be one of Novak's two sources, according to reports of Rove's own grand jury testimony.
From the October 21 USA Today article, a series of questions and answers regarding "the latest developments and what might happen next" in the Plame leak investigation:
Q: Is it clear that the original leak most likely came from Rove or [Vice President Dick Cheney's chief of staff I. Lewis "Scooter"] Libby?
A: Not at all, but Rove made his fourth grand-jury appearance a week ago, and Miller detailed her conversations with Libby last Sunday. The leak could have originated with someone who hasn't been identified. Names of other administration officials have cropped up in recent news reports, but none is as high-ranking. Columnist Robert Novak first revealed Plame's name and hasn't publicly identified his two sources. Washington Post reporter Walter Pincus, who did not write about the matter, hasn't publicly named his. Miller wrote that she can't recall who first told her Plame's name.
Q: What laws would have been broken if someone revealed Plame's identity?
A: The Intelligence Identities Protection Act of 1982 bars anyone authorized to handle classified information about a "covert agent" from knowingly revealing the agent's identity. Lawyer Victoria Toensing, who as a Senate staffer helped write that law, says Plame wasn't covert because she hadn't been stationed overseas since 1997 and worked at CIA headquarters. If Fitzgerald instead is investigating possible violations of the 1917 Espionage Act, Toensing argues that that would be inappropriate. The act makes it illegal to divulge national-security information. Toensing says that law was meant to prevent disclosure of ship routes, munitions plants' locations and other secrets during wartime.