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Friday, August 13, 2004

Voyage to the Bottom of This 

In the wake of the news that the grand jury has subpoenaed Judith Miller of the New York Times, Eric Boehlert here recaps the latest developments in the Plame investigation. The case may eventually lead to a Supreme Court ruling on the question of journalistic privilege -- last addressed, inconclusively, in Branzburg v. Hayes (1972) -- but probably not in time for the 2004 elections:
"The question is, who could get to the bottom of this very quickly? The president of the United States," says former U.S. Ambassador Joseph Wilson, Plame's husband. "There has to be an internal investigation into who's betraying the country -- an investigation with sworn affidavits from everybody on his staff -- and the president ought to insist everybody who talked to any reporter about this subject sign a waiver."

But Bush has done none of this. He simply urged White House employees to cooperate with investigators as they try to determine who leaked Plame's name last year to syndicated columnist Robert Novak, the first to report it, on July 14, 2003. The leakers, who also approached Time magazine's Matthew Cooper, appear to have violated the Intelligence Identities Protection Act of 1982, which makes it a crime -- punishable by up to 10 years in prison and a large fine -- to make unauthorized disclosures about a covert agent.

In January, Justice Department investigators asked White House staff members to sign a waiver requesting "that no member of the news media assert any privilege or refuse to answer any questions from federal law enforcement authorities on my behalf or for my benefit." But in February the Washington Post reported, "Most officials declined to sign the form on the advice of their attorneys."

More recently, Lewis "Scooter" Libby, Vice President Cheney's chief of staff and a key player in the Plame leak investigation, told investigators about off-the-record conversations he had last summer with the Post's Glenn Kessler and NBC's Tim Russert, and formally requested that the conversations be disclosed, thereby freeing both reporters from their bond of confidentiality . . . .

There is no indication that Libby has given Time magazine's Cooper the same permission to come forward and reveal any confidential conversations the two had about Plame last summer. In the July 17, 2003, Time.com article that has ensnared Cooper in the investigation, Cooper and his coauthors wrote, "Some government officials have noted to Time in interviews (as well as to syndicated columnist Robert Novak) that Wilson's wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction." Interestingly, Libby in "an exclusive interview" is quoted on the record in that Time.com story, although not specifically about Plame. Whether Libby asked at any point during that interview to go off the record in order to talk about Wilson's wife remains unknown . . . .

Legally it's of little or no significance that Time's Cooper has, for the moment at least, become the public face of the leak investigation. But the development is comforting for some journalists, who feel that Novak, a partisan pundit, acted unethically by letting himself become a conduit in a White House smear campaign that may have broken the law. The idea of Novak's playing the press-martyr role for protecting sources that endangered a CIA operative so the Bush administration could score political points makes many uneasy. For months now, there haven't been any "Free Bob Novak" T-shirts hawked online.

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