Q & A: Behind the CIA Leak Case

'New York Times' reporter Judith Miller walks towards the federal district courthouse.

New York Times reporter Judith Miller was jailed for contempt after refusing to testify in the case. Reuters hide caption

itoggle caption Reuters
Matthew Cooper

Time magazine reporter Matthew Cooper avoided jail by agreeing to testify in the case after saying his source released him from a confidentiality agreement. Yuri Gripas/Reuters/Corbis hide caption

itoggle caption Yuri Gripas/Reuters/Corbis

Timeline

Robert Novak

Syndicated columnist Robert Novak disclosed in an article on July 14, 2003, that Valerie Plame was a CIA operative. Brooks Kraft/Corbis hide caption

itoggle caption Brooks Kraft/Corbis

The investigation into who leaked the name of a CIA agent has led to the jailing of one reporter for 85 days and grand jury testimony for some of the White House's most trusted aides. Media correspondent David Folkenflik offers background on the case's impact on the Bush administration and the media.

This case is hard to follow. How did it start?

On July 6, 2003, former ambassador Joseph C. Wilson wrote an op-ed column for The New York Times saying the Bush administration exaggerated the threat posed by Saddam Hussein in justifying the invasion of Iraq. Wilson wrote that the CIA had sent him to Niger. Vice President Dick Cheney wanted hard evidence the Iraqis bought uranium "yellowcake" from Niger for the production of weapons of mass destruction. But Wilson wrote that "it was highly doubtful that any such transaction had ever taken place."

On July 14, 2003, syndicated columnist Robert Novak wrote that Wilson's wife, Valerie Plame, was a CIA operative working on weapons of mass destruction. Novak, citing "two senior administration officials," wrote that Plame suggested her husband for the mission to Niger. Novak is a well-known conservative commentator; Wilson and many Democrats viewed the column as political payback for Wilson's public criticism of the administration.

Why is there a federal investigation?

Democrats and some newspaper editorials charged that the leak violated a federal law that prohibits identifying undercover agents. Such early speculation focused on the vice president's chief of staff, Lewis Libby, and the president's top political adviser, Karl Rove, who is now the deputy White House chief of staff.

Rove had been a campaign consultant for John Ashcroft's Senate campaigns. As U.S. attorney general, Ashcroft ultimately named U.S. Attorney Patrick Fitzgerald of Chicago to lead an investigation as a special prosecutor. Fitzgerald has been subpoenaing many Washington insiders, including journalists, who may know something about the leak.

Why are journalists in trouble over this?

Not all of them are. Fitzgerald called them to testify as witnesses. And several did just that, with the understanding that the prosecutors' questioning would be limited. But two prominent reporters, Matthew Cooper of Time magazine and Judith Miller of The New York Times, initially refused to testify before the grand jury convened by Fitzgerald.

With colleagues, Cooper wrote a story for Time about the apparent strategy of the White House to discredit Wilson — or possibly punish him — by revealing his wife's job and involvement in his mission to Niger. Cooper agreed to testify the day he was to be sent to jail after a source, now confirmed to be Rove, released him from his confidentiality agreement. Miller stayed mum and went to jail — although she never wrote any stories on the subject. After serving 85 days in a Virginia detention center, Miller agreed to testify as well. She said she was personally assured by her source that he wanted her to testify. That source was Libby — the vice president's top aide.

Are journalists allowed to keep their sources secret?

Yes and no. Thirty-one states and the District of Columbia have some sort of so-called shield laws, but no such federal statute exists. And this case involves a federal law and a federal grand jury. Justice Department guidelines say that prosecutors should pursue information from journalists only when other leads have been exhausted. But in a 1972 case involving a reporter who witnessed the production of narcotics, the Supreme Court held that there is no federal privilege for reporters to protect their sources. In this case, a federal appellate court ruled against Cooper and Miller — and the Supreme Court declined to review the decision.

What do we know about Karl Rove's role in this?

Rove has testified several times before the grand jury. His lawyer has said recently that Fitzgerald told him he has not decided whether to charge Rove with any crime — and that, so far, Rove is not a so-called "target" of Fitzgerald's investigation. But lawyers for both Cooper and Rove now confirm the two spoke about Plame during the period the leak occurred.

Was any federal law broken?

This is unclear. Some former prosecutors say the federal law that addresses the disclosure of covert U.S. intelligence officials is very narrowly written and may not apply easily to cases like this. It was passed in 1982 after a rogue former CIA official deliberately released the names of scores of undercover agents. To successfully bring a case, prosecutors would have to be able to determine precisely what the leaker said, what he intended to say, and whether he was revealing secret information or repeating information that was already widely known.

It should be noted that this is a very unusual case in which the very act of passing along the information may have constituted a crime. Fitzgerald argues in court papers that that means the only possible witnesses to the crime would be the reporters themselves — and that the criminal would be the leaker. That's different from the classic formulation of a reporter's protecting the identity of a whistleblower. And Fitzgerald says the case involves matters of national security, given Plame's occupation at the CIA.

Let's say Fitzgerald doesn't end up bringing a case based on that federal law. Are there other laws that may have been broken?

Some media lawyers suggest the prosecutor may be exploring whether any government officials committed a lesser crime of obstruction of justice or perjury — for instance, if an administration official denied leaking Plame's identity, but reporters testify to the contrary. Fitzgerald asked Miller pointedly about how Libby handled classified information, which could indicate an interest in applying espionage laws.

What is the broader issue at stake here for reporters?

This, too, is murky. The New York Times, which had one of its reporters languish in a jail cell for nearly three months, understandably looks at the matter darkly. Some other journalists and legal observers say Judith Miller is a living embodiment of the press's determination to keep faith with secret sources.

On the other hand, critics like Michael Kinsley, the editor of the Los Angeles Times' editorial pages, have said that Time and The New York Times were wrong to fight the subpoenas and subsequent contempt of court rulings — that every citizen, and every corporation, must abide by "the normal duties of citizenship," including testifying before a grand jury. Ultimately, Time magazine turned over Cooper's notes and materials to Fitzgerald — over the reporter's opposition.

Might this have a chilling effect on journalists' sources?

Federal prosecutors have recently sought information from reporters covering a corruption case in Rhode Island, an investigation of a San Francisco-area steroid lab with clients that included baseball players, and an Islamic not-for-profit entity in Chicago that's been accused of having links to terrorists.

After Miller was sent to jail, editors at The Plain Dealer, Ohio's largest newspaper, cited her case in deciding to withhold publication of an investigative story that they said was based on documents that had been obtained illegally by a source.

If Miller didn't write about Plame, then how did federal investigators know that she had been leaked the information?

The special prosecutor was probably able to determine which administration officials spoke with reporters because the White House turned over related phone logs, e-mails and notes to investigators back in the fall of 2003. Those records aren't considered sufficient by prosecutors to serve as proof of the context or even occurrence of those conversations, however. We know this because after Time sent Cooper's notes and e-mails to Fitzgerald, the prosecutor argued in legal papers that the documents made Cooper's testimony more important than ever.

So what did Libby tell Miller?

Libby's side isn't talking. But Miller says she told the grand jury that Libby talked to her three times about Wilson in the summer of 2003. The first time was on June 23, 2003 — nearly two weeks before Wilson went public with his criticism of the Bush White House with his opinion piece. Libby was fixated on Wilson as a critic behind the scenes, and said Wilson was in league with figures at the CIA who wanted to distance themselves from the White House's collapsing case for Iraqi weapons of mass destruction. Miller wrote in The New York Times recently that Libby told her about Plame's work in weapons of mass destruction, but that she believes someone else first told her Plame's name.

Hold on — so Miller had a second source she was protecting, beyond Libby?

That's what Miller seems to be saying. A recently discovered notebook belonging to Miller contains a misspelled version of Plame's name. But she also says she can't remember who that other source was. What makes that assertion so astonishing is that her lawyer, Robert Bennett, negotiated a strict agreement with Fitzgerald that she would only be asked about her one confidential source in the case — because, Bennett promised, she only had one source who could shed any light on the Plame/Wilson matter. It would appear her account in the Oct. 16, 2005 Times contradicts that promise. And her failure of memory under oath before a federal grand jury is something other journalists would likely question quite sharply in a government official.

What else did that Oct. 16 package in the Times reveal?

The Times' main story showed how much the newspaper's leadership felt compelled to compromise its coverage because of Miller's legal situation. Editors killed and discouraged stories by other reporters that appeared to get at Libby's role in defending the White House case for war in Iraq. Miller frequently withheld information from editors and continued reporting on weapons of mass destruction issues even after being ordered by Executive Editor Bill Keller to stay away. (The Times was compelled to apologize in 2004 for several articles as being too credulous of White House claims that Iraq possessed WMDs. Miller reported most of those articles.) As Times Publisher (and Times Co. CEO) Arthur Sulzberger put it, "This car had her hand on the wheel because she was the one at risk."

It was a remarkable and painful package for The Times to have to publish. Some media and blog commentators argue it has arrived too late for The Times to keep its social contract with readers — to report the news "without fear or favor," in a phrase embedded in Times lore. But it also laid bare what the paper's reporting team called "the impossible tension between covering the case and the principle they believed to be at the heart of it."

One last thing: When she was released from jail, Miller and her lawyers said she had won the uncoerced consent of her previously confidential source — soon revealed as Libby — to testify. But the article suggests confusion as to how freely Libby gave his consent in September — or whether it was really any different than the consent Libby had given other reporters a year earlier. Miller told The Times that after two months in jail, "I owed it to myself to see whether or not Libby had had a change of heart."

Why didn't Robert Novak also go to jail?

Novak isn't talking publicly about his role. He says he wasn't subpoenaed for the inquiry. But it is widely believed he has already testified voluntarily before the grand jury or otherwise collaborated with Fitzgerald's investigation.

Is there a precedent for journalists to refuse to testify or provide information?

The Times has repeatedly refused to divulge information to government authorities — going back to 1857, when a reporter was held in contempt by the U.S. House of Representatives for refusing to identify his sources in reporting on bribery in Congress. (The corrupt lawmakers resigned.) In 1978, the Times' M.A. Farber spent 40 days in jail for refusing to hand over his notes to the lawyer for a doctor charged after suspicious deaths uncovered by the reporter. Other reporters have been jailed as well.

And what's at stake for the Bush administration?

Rove is the president's top political adviser and he's clearly in the hot seat at the moment. But so too is Libby, who has a broad portfolio for the most powerful vice president in modern American history. Some political analysts say the case has distracted the two senior aides when President Bush is stumbling over eroding support for the occupation of Iraq, the economy and the federal response to Hurricane Katrina.

The White House is reported to be girding for possible indictments, as both men have indicated they would take leaves or resign if they were charged with crimes in the case. Democrats have called for the president to fire anyone who is charged with a crime. The White House press secretary, Scott McClellan, has faced repeatedly hostile questioning from the White House press corps about Rove and Libby — in no small part because McClellan had explicitly and muscularly denied the two senior White House officials had played any role in leaking Plame's identity. And at this writing, the president is also finding himself asked about the case with increasing intensity.

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