USA Today relied on unsupported reading of law in report suggesting that outing Plame was likely not a crime


Reporting that the disclosure of a covert CIA operative's identity by White House senior adviser Karl Rove or any other Bush administration official "might fall short of a crime," USA Today reporter Mark Memmott relied exclusively on a reading of the relevant statute by Republican operative Victoria Toensing and another lawyer, for which they offered no support. Nonetheless, conservative pundits quickly seized on the USA Today article and repeated the argument in defense of President Bush's top political adviser.

The theory offered by Toensing and Washington lawyer Bruce W. Sanford, who USA Today reports, was, with Toensing, among the statute's co-authors, posited that Rove cannot be found criminally liable for outing CIA operative Valerie Plame because she did not meet the definition of "covert agent" under the Intelligence Identities Protection Act (IIPA). The IIPA defines a "covert agent'' in part as someone "who is serving outside the United States or has within the last five years served outside the United States." Critically, Memmott reported -- without questioning or challenging -- Toensing and Sanford's assertion that the "assignment also must be long-term, not a short trip or temporary post," even though this limitation to the definition is not found in the language of the statute.

Toensing and Sanford had previously co-authored a January 12 Washington Post op-ed arguing that no crime was committed in outing Plame. In this oped, Toensing and Sanford articulated the theory that Plame did not meet the requirement of having "served outside the United States," but they did not provide support then either for their argument that the statute requires long-term assignment:

[S]he must have been assigned to duty outside the United States currently or in the past five years. This requirement does not mean jetting to Berlin or Taipei for a week's work. It means permanent assignment in a foreign country. Since Plame had been living in Washington for some time when the July 2003 column was published, and was working at a desk job in Langley (a no-no for a person with a need for cover), there is a serious legal question as to whether she qualifies as "covert."

But clearly someone -- including the CIA -- believes that a strong case can be made that leaking Plame's identity might constitute a violation of the law. Further, the available evidence suggests that Plame did travel abroad on CIA business in the five years before her identity was revealed, and was therefore a "covert agent" at least under the plain language of the statute.

Memmott based his report on "little-noticed details in a book" by Plame's husband, former ambassador Joseph C. Wilson IV, suggesting that Plame had not been stationed abroad since the couple married in 1997. But Memmott did not offer a contrary legal perspective as to whether Plame was a "covert agent" under the statute. Instead, he only cited Wilson's claim that "the CIA obviously believes there was reason to believe a crime had been committed" because it asked the Justice Department to investigate the case. But Wilson's claim is not merely one interested party's opinion; it is, rather, a verifiable fact: The CIA's referral of the case to the Justice Department did reflect a belief that a crime may indeed have been committed. As The Washington Post reported on October 1, 2003, the CIA submitted a detailed questionnaire to the Justice Department to initiate an investigation into whether the incident amounted to a "violation of federal law that prohibits unauthorized disclosures of classified information." The Los Angeles Times cited Jeffrey Smith, former CIA general counsel, making a similar point to Wilson's: "Jeffrey Smith, a Washington lawyer and former general counsel of the CIA, questioned whether the Justice Department would launch an investigation unless it believed Plame qualified for protection under the statute."

Conservatives eager to shield Rove immediately seized upon the USA Today report. For example, on the July 14 edition of Fox News' Hannity & Colmes, co-host Sean Hannity declared: "She [Plame] must have been assigned duty outside the U.S. currently or in the past five years. That's not the case. There is no broken law here. There is no revelation here." Earlier that day, nationally syndicated radio host Rush Limbaugh read the USA Today article aloud on The Rush Limbaugh Show. Fox News host Brit Hume and David Rivkin, an official in the administrations of presidents Reagan and George H.W. Bush, also echoed the USA Today report on the July 14 edition of Fox News' Special Report with Brit Hume:

RIVKIN: And what's interesting here is that Mr. Wilson makes clear in his book that Valerie Plame was not posted overseas within five years of that disclosure. So that fact alone, Brit, would be sufficient to definitively establish that the statute was not broken.

HUME: So if Wilson is correct in what he says in his book about he and his wife having returned, both from overseas, in 1997, we're talking about a disclosure that took place in 2003, that would place her outside the realm of the definition of a covert agent within the purposes of the statute.

Evidence indicates that Plame did in fact engage in CIA business abroad between 1998 and 2003, even if she was not stationed abroad. For example, the Post suggested on October 8, 2003, that Plame remained undercover "in recent years" as an "energy consultant," while actually serving as a weapons proliferation analyst for the CIA, and was known by friends and neighbors as someone who "traveled frequently overseas":

For the past several years, she has served as an operations officer working as a weapons proliferation analyst. She told neighbors, friends and even some of her CIA colleagues that she was an "energy consultant." She lived behind a facade even after she returned from abroad. It included a Boston front company named Brewster-Jennings & Associates, which she listed as her employer on a 1999 form in Federal Election Commission records for her $1,000 contribution to Al Gore's presidential primary campaign.

Administration officials confirmed that Brewster-Jennings was a front. The disclosure of its existence, which came about because it was listed in the FEC records, magnifies the potential damage related to the leak of Valerie Wilson's identity: It may give anyone who dealt with the firm clues to her CIA work. In addition, anyone who ever had contact with the company, and any foreign person who ever met with Valerie Plame, innocently or not, might now be suspected of working with the agency.

Friends and neighbors knew Valerie Wilson as a consultant who traveled frequently overseas.

CNN national security correspondent David Ensor reported on the September 29, 2003, edition of Wolf Blitzer Reports:

ENSOR: All I can say is my sources tell me that this is a CIA operative. This is a person who did run agents. This is a person who was out there in the world collecting information.

Both the USA Today report and a separate July 14 article in The Washington Post described Toensing as a co-author of the Intelligence Identities Protection Act without revealing that she is a partisan Republican and personal friend of CNN host and columnist Robert D. Novak, who originally outed Plame in July 2003.

Posted In
National Security & Foreign Policy, War in Iraq
CIA Leak Investigation
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