In an interview on the Hugh Hewitt show about the significance of the recent Bob Woodward revelation, Mickey Kaus (Icon 1) and Hewitt (Icon 2) said the following:
MK: … it would have been a crime for Scooter Libby or anybody to disclose Plame’s status, even if Woodward already knew. Woodward hadn’t published it. He was a dead end.
HH: Okay.
Wait a minute. Not O.K. Hugh, you should have known better.
What was the crime Kaus is so sure Libby would have committed if he had disclosed Plame’s status? To have violated the Intelligence Identities Protection Act (IIPA), he would have to have intentionally revealed the name of a covert operative the CIA was affirmatively trying to keep secret. Even though Libby apparently discussed Plame with both Judith Miller and Matt Cooper (who “disclosed” her identity to whom is in some dispute), Libby significantly was not charged with violating that act.
Fitzgerald’s failure to indict Libby, or anyone else so far, for violating the IIPA could be because Plame was not a covert operative covered by the act. Indeed, in his press conference announcing Libby’s indictment the following exchange took place:
QUESTION: Can you say whether or not you know whether Mr. Libby knew that Valerie Wilson’s identity was covert and whether or not that was pivotal at all in your inability or your decision not to charge under the Intelligence Identity Protection Act?
FITZGERALD: Let me say two things. Number one, I am not speaking to whether or not Valerie Wilson was covert. And anything I say is not intended to say anything beyond this: that she was a CIA officer from January 1st, 2002, forward.
I will confirm that her association with the CIA was classified at that time through July 2003. And all I’ll say is that, look, we have not made any allegation that Mr. Libby knowingly, intentionally outed a covert agent.
FITZGERALD: We have not charged that. And so I’m not making that assertion.
And what did Woodward say about this? As I discussed here, in his statement Woodward said the following:
Fitzgerald asked for my impression about the context in which Mrs. Wilson was mentioned. I testified that the reference seemed to me to be casual and offhand, and that it did not appear to me to be either classified or sensitive. I testified that according to my understanding an analyst in the CIA is not normally an undercover position.
So, Mickey, what crime would Libby have committed by disclosing analyst, not covert operative, Plame’s identity? In fact, later on in the interview with Hewitt Kaus seems to recognize that disclosing Plame’s identity is not a crime:
Keep in mind the basic thing is disclosing this woman’s identity does not appear to have been a crime, because there was a source for the Novak article that eventually made public her name. Fitzgerald knows who that source was. We don’t know who the source was, but we know it wasn’t Rove or Libby. And Fitzgerald has not indicted that person, so obviously, he feels that just merely leaking the name to a reporter was not a crime. So they’re focusing on perjury, and did the people try to cover up this non-crime.
So, what did Kaus mean when he initially said that “it would have been a crime for Scooter Libby or anybody to disclose Plame’s status”? If disclosure wouldn’t have violated the IIPA, what would it have violated? Simply releasing classified information?
The unauthorized disclosure of classified information is a crime, but if enforcing that is to be the new order of the day we will have an official secrets act … and an exceedingly large number of silenced government leakers and unemployed, or jailed, journalists whose whole careers feast on the unauthorized disclosure of classified information.
ADDENDUM
Perhaps I should add that, unlike most of the folks with whom I usually agree as well as those with whom I seldom agree (the Clintonistas who pooh-poohed Clinton’s perjury as trivial and inconsequential), I think perjury is always a serious crime and thus that Libby should have been indicted if Fitzgerald has sufficient evidence that he lied under oath. Moreover, whatever Woodward knew, when he knew it, or who told him has no bearing on whether or not Libby lied under oath.
Of course, the wisdom of appointing a special prosecutor and keeping him in business a couple of years to investigate something that appears not to be a crime — revealing the name of a CIA employee who is not a covert operative — is another matter.
Query: assuming for the sake of argument that Valerie Plame was a covert operative when Novak published her name, why didn’t the CIA deny it? Referring the matter to the Justice Dept. for investigation hardly seems like taking affirmative steps to protect her secret identity, as required to trigger the IIPA.
