The Scandal That Could Eat Bush's Brain

AP Photo/Lauren Shay

For the past month, a nearly concluded year-and-a-half-long special investigation of who leaked a CIA agent's identity to the press has been making headlines and generating furious speculation that key members of the Bush administration could be indicted soon on criminal charges. Here's a Rove/Plame FAQ list that summarizes reported developments in the case through the end of last week.

What's the deal? Where did all this start?

The short answer is that it started with the infamous "16 words" in George W. Bush's 2003 State of the Union speech, a couple of months prior to the invasion of Iraq: "The British Government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa." In fact, CIA analysts had rejected that claim well before Bush included it in his prime-time case for war in January 2003, and so had numerous others in and around the administration.

One of those peripheral figures--a career diplomat named Joseph Wilson who had undertaken a trip to Niger to investigate the uranium story and proclaimed it bogus--wrote a July 6, 2003 op-ed column in the New York Times claiming that what Bush said about the reports on Saddam's nuclear program "was twisted to exaggerate the Iraqi threat." Within a day or two, both Karl Rove and Cheney chief of staff I. Lewis "Scooter" Libby were swapping calls with reporters in which they discussed the fact that Wilson's wife was CIA. Bob Novak published it on July 14, after which critics pointed out that she was undercover, and that it was a crime to expose the identity of a US intelligence undercover agent.

The longer answer is that the Plame Affair began in Italy in October 2002, when a Rome "businessman" named Rocco Martino, a murky figure with extensive ties to Italian and other European intelligence agencies, delivered to journalist Elisabetta Burba a pair of documents professing to show that Saddam Hussein tried to buy 500 tons of yellowcake (milled uranium oxide, suitable for weapons manufacture) from Niger. Burba relayed the documents to the US embassy in Rome for authentication. Bush administration hawks were all in a lather about the find, since it underwrote the case for war, and forwarded the two documents to the International Atomic Energy Agency. But according to a subsequent story by Newsweek's Michael Isikoff (linked below), "Within two hours, using the Google search engine, IAEA officials in Vienna determined the documents to be a crude forgery." The first document apparently consisted of dummied-up telexes, letters, and contracts pertaining to a uranium sale. The second purported to be a Nigerian government document, but the French in which it was written was so clumsy as to preclude its having been written by any official of Niger, where French is the primary language. (Matthew Yglesias of the American Prospect writes about the forged documents here.)

So the Bush administration could not make the documents part of their case for war--directly, anyway. But UK intelligence services had got hold of the Niger documents as well. The same forgeries in turn became the basis for a British intelligence report that credited the belief Saddam was trying to buy uranium. (The British government has never publicly conceded that its report was based solely on the forgeries from Italy, but when the International Atomic Energy Agency asked for copies of whatever else it had to document Saddam's shopping spree, not a single document was forthcoming.) The UK report was the one that George W. Bush cited in his State of the Union address, and thus did the administration skirt, barely, any citation of the forged documents themselves.

The paper-thin nature of this central Bush argument for invading Iraq practically assured that anyone challenging it would face a full frontal assault on his or her credibility, and that's exactly what Wilson got when he published his Niger op-ed: White House officials working the phones with half a dozen or more Beltway media tone-setters, implying that Wilson was some inconsequential crank who only made the trip to Africa because it was a perk bestowed by his CIA wife. (Valerie Plame Wilson did recommend her husband for the trip, but did not have the authority to send him on it.) Wilson was not the only one who got roughed up in the White House's efforts to discourage further questions. It's little-remembered now, but when Senator Dick Durbin (D-IL) initially brought up the Plame affair in July 2003, the White House roared that he was discussing classified information publicly and tried to ride him off the Senate Intelligence Committee.

The uproar persisted in fits and starts through the summer/fall of 2003, and on December 30 of that year, the Ashcroft Justice Department appointed a special counsel, US Attorney Patrick Fitzgerald, to explore claims of criminal actions by the White House in blowing Valerie Plame Wilson's cover.  

(Footnote: There's an absolutely brutal bit of irony in the saga of the forged Niger documents. When CBS rushed to air last year with its now-infamous Bush National Guard memos story, the piece it pre-empted was the first and to date the only in-depth network TV report about the Italian forgeries. That report has never aired--though Michael Isikoff did disclose much of its contents in a 9/22/04 Newsweek article--meaning that, in the end, CBS canned an important story about forged documents for a trivial one based on forged documents. Goodnight, Dan.)

Who are the targets of the inquiry?

With apologies to Karl Rove's lawyer, Robert Luskin, who has insisted the special prosecutor told him his client was not a "target" of the investigation, Rove clearly is a target. So is Cheney chief of staff Scooter Libby. Both have been named in multiple grand jury leaks in recent weeks, though they may not be the only administration figures facing possible charges. Other Cheney staffers, most notably national security aide John Hannah, have been mentioned in press and blog accounts, and recent leaks [1] [2] hint that former press secretary Ari Fleischer may be on the short list too.

What's the law that Rove, Libby, et al. supposedly broke?

Drafted by Rhode Island Republican Senator John H. Chafee, the Intelligence Identities Protection Act of 1982 makes it a crime to expose the identity of any US intelligence agent known to be working in an undercover role. It's yielded very few prosecutions in the 23 years since: A search of the full Nexis news database for the years 1983-2002 turns up only 36 mentions of the law and just two reports of cases in which anyone was charged with violating it. The IIPA was passed largely in response to the activities of a handful of lefty activists who specialized in documenting through FOIA and other means the various covert programs the CIA was running around the world--most prominently, former CIA agent turned author Philip Agee, whose 1975 Inside the Company: A CIA Diary was the first tell-all book about the agency's inner workings, and the publishers of the magazine Covert Action Information Bulletin (later renamed Covert Action Quarterly. Both Agee and CAIB named a lot of undercover CIA personnel in the process, and the IIPA forced them to scale back their efforts and eliminate a Covert Action column titled "Naming Names."

While it was moving through Congress, the IIPA elicited harsh criticism from left-liberals and First Amendment advocates. It was not a fringe opinion: The mainstream US intelligence historian Thomas Powers called it "a first step on the road to an Official Secrets Act." The editors of the Nation published a special section condemning the bill on March 14, 1981, terming it "extremely dubious and dangerous." Now, ironically, many of the same people are calling for the heads of the White House leakers, some even going as far as to term Rove's violation of a law they once opposed "treason." (The blogger John Rosenberg has a good piece about the treason chorus and the odd history of left-lib views toward IIPA, here.)

If it was columnist Bob Novak who published Plame's identity, then why is it Judith Miller in jail and on the hot seat instead of Novak?

Because NYT reporter Miller was jailed for refusing to testify to the grand jury, whereas Novak--although he's refused to discuss it--did talk to Fitzgerald, according to several leaked accounts. In court arguments earlier this month prior to Miller's jailing, Fitzgerald told Judge Thomas Hogan her story is essential to his case. As the Chicago Tribune noted on July 7, "Fitzgerald, the U.S. attorney in Chicago, has said for months that his investigation has concluded except for the testimony of Miller and Cooper. On Wednesday, he told the court that with Miller's refusal to testify, ‘we are having this whole thing derailed by one person.'"

What does Miller know? Rove's supporters maintain that she's the person who told the administration about Plame's CIA status. The other side has all sorts of theories, but the most interesting may be the one hatched by criminal defense lawyer and TalkLeft blog author Jerrilyn Merritt, who believes Miller knows the details of an alleged meeting of Cheney staffers to discuss ways of discrediting Joseph Wilson and his Niger report. (Wilson first claimed to USA Today in April 2004 that such a meeting had taken place. Cheney's office denied it publicly--though it's not clear what, if anything, witnesses have said to the grand jury about it.)  

Miller, whose silence in the Fitzgerald inquiry have given her the cachet of a First Amendment martyr, makes for a dubious hero in any setting. She last made headlines in 2004 when press critics such as Jack Shafer of Slate and Michael Massing anointed her a symbol of everything that was wrong with the mainstream press's cheerleading coverage of the march to war in Iraq. Before the invasion, while battles raged within the US intelligence establishment over the Bush administration's handpicked case for war, the eminently connected Miller never wrote of hearing a word about them; after the invasion, when military commanders with whom she was embedded in Iraq told Miller about a defector with extensive knowledge of Saddam's secret weapons programs, she turned their yarn into front-page news without so much as being permitted to speak to the alleged defector. The old joke about the Washington press corps seems literally true of Judy Miller: She never met an official source she didn't like. This has only heightened suspicions that Miller is keeping quiet out of devotion not to the First Amendment but to friends in high places who might wind up ruined if she talked.

Who is special prosecutor Patrick Fitzgerald?

By practically every account, Fitzgerald is the stereotype of the corruption-busting bulldog prosecutor made flesh. He is renowned not only for his relentlessness and epic work output, but likewise his inventiveness in applying the law to his targets. He first made a name for himself as an assistant US attorney for the southern district of New York, where he ran the Organized Crime/Terrorism Unit. The Ashcroft Justice Department appointed him US attorney for the northern district of Illinois just days before the September 11 attacks in 2001. His most famous Illinois case to date involved the prosecution of the state's Republican former governor, George Ryan, on a variety of corruption charges.

Fitzgerald refuses to talk about politics publicly, but one of his ideological passions is abundantly evident: He's a rock-ribbed national security zealot, and not just since 9/11. Back in the 1990s, Fitzgerald assembled the first US criminal indictment of a then-little-noted terrorism suspect named Osama bin Laden. More recently, Fitzgerald has argued with great enthusiasm on behalf of the Patriot Act, and he is chair of the attorney general's advisory panel on terrorism. If the Bush executive branch wanted someone who would soft-pedal a purported breach of national security, they may have made a very bad choice in Fitzgerald.

But the tales of Fitzgerald's superhuman integrity and resolve have to be set against the reality of his position. In the words of a glowing February 2005 Washington Post profile, "[Fitzgerald] insists that he has already advanced further than his imaginings, but he is clearly aware of his emerging star status. Asked about the notion of becoming FBI director after Robert Mueller, another prosecutor who quit private practice to put bad guys behind bars, he laughs. ‘That's probably Director Mueller when he's having a bad day, trying to unload it on somebody else.' He did not say he was uninterested, just that he is not thinking beyond his current job." But Fitzgerald is certainly canny enough to recognize that the number of prosecutors who have indicted members of sitting presidential administrations and gone on to the top post at the FBI is exactly zero, a number that is not likely to change. As the FBI's continuing suppression of rank-and-file whistleblowers attests, the Bureau and its friends on Capitol Hill loathe nothing more than the prospect of reformers in their ranks, let alone at the top. The Post profile further notes that Fitzgerald drew questions about political favoritism in 2004 for his election-year indictment of an alleged Hamas fundraiser after then-Attorney General John Ashcroft touted the case.

What is Fitzgerald trying to prove?

The grand jury investigation of the White House has resurrected a lot of Watergate-era catchphrases, none more apropos than the maxim "it's the cover-up, not the crime." If Fitzgerald does issue indictments, the primary charges will almost certainly not be violations of the Intelligence Identities Protection Act, but obstruction of justice, perjury, and sundry other offenses stemming from White House staffers' efforts to conceal their role in outing Plame from federal investigators. Since the grand jury investigation story went large on July 2 with Michael Isikoff's Newsweek article confirming that Rove himself spoke to Matt Cooper of Time about Valerie Plame Wilson, the pattern of leaks in the case has militated entirely in this direction.

Seen in this light, the endless speculation about who told what to whom first may be part red herring. Rove is said to have told the grand jury that he first heard about Plame Wilson's CIA connection from reporters, not the other way around; he cited Bob Novak as one source and said he could not remember who the other was. Speculation has naturally centered on Judith Miller, the lone reporter caught up in the probe who has not talked to Fitzgerald at all. It would be a boon to Fitzgerald's case to demonstrate that the leak originated entirely in the White House, affording him one more prosecutorial bargaining chip. But for purposes of an obstruction of justice investigation, it probably doesn't matter much in the end whether it was reporters who first told the White House about Plame or the White House that first told reporters.  

What are the key public disclosures in the case so far?

Since grand jury proceedings are secret, all we know at the moment is what has been leaked anonymously from inside the proceedings, mostly to reporters from the New York Times, Washington Post, Bloomberg News Service, and to Isikoff. The two main revelations to emerge so far are that Rove spoke directly with reporters about Plame Wilson--despite prior grand jury rumors, few people, even among Rove's worst enemies, were entirely ready to believe he'd leave his own fingerprints on such a sensitive matter--and that a State Department memo written in July 2003 discussed Joseph Wilson's trip to Africa and identified his wife's CIA status in a paragraph marked Secret. It does not seem entirely clear when the memo passed into the hands of White House staffers, but grand jury witnesses have reportedly placed it in the hands of Colin Powell and then-press secretary Ari Fleischer on July 7, the day after Wilson's op-ed ran in the Times. That's one strike against Rove's claim that he heard about Plame's CIA job from reporters. Last Friday, Dan Froomkin of the Washington Post cited another in this succinct rundown of the conflicting stories to emerge from the grand jury so far:

[blockquote] White House chief political strategist Karl Rove reportedly told the grand jury that he first learned of Valerie Plame's identity from columnist Robert Novak--but Novak's version of the story is that Rove already knew about her when the two spoke. Rove didn't mention his conversation with Time magazine reporter Matthew Cooper to investigators at first and then said it was primarily about welfare reform. But Cooper has testified that the topic of welfare reform didn't came up. Vice President Cheney's chief of staff, I. Lewis "Scooter" Libby apparently told prosecutors he first heard about Plame from NBC's Tim Russert, but Russert has testified that he neither offered nor received information about Plame in his conversation with Libby. And former White House spokesman Ari Fleischer apparently told prosecutors that he never saw a classified State Department memo that disclosed Plame's identity, but another former official reportedly saw him perusing it on Air Force One. [/blockquote]

When will the special prosecutor's investigation be finished?

There's no telling. The term of the present grand jury panel expires in October--at which point Judith Miller will presumably get out of jail--but Fitzgerald could seek to have it extended another six months. He could also pile criminal contempt charges on top of the civil ones Judith Miller is jailed for, thereby possibly extending her stay in the hoosegow past the term of the current grand jury. Otherwise the case seems at an end.

If, as Fitzgerald's words and actions both suggest, Miller really is a linchpin of the case he wants to make, the question of where this ends may come down to two factors: first, who is more stubborn and resourceful, Miller or Fitzgerald; and second, what sorts of charges, if any, Fitzgerald is in a position to bring without her testimony. It's still entirely possible that Miller will be the only person who ever does jail time in the matter.

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