The Law: The CIA Leak Case Indicting Vice President Cheney’s Chief of Staff

In June 2003, citing "two senior administration officials," syndicated columnist Robert Novak openly identified Valerie Plame as a Central Intelligence Agency (CIA) "operative" (Novak 2003). It did not take long before politicians in Washington screamed foul, for it is a felony under the Intelligence Identities Protection Act of 1982 (IIPA) to knowingly out a covert agent of the United States. Since then, Washington has been abuzz with talk of political misconduct and legal transgressions. Indeed, what many commentators are calling "Plamegate" has all the elements of a great national scandal: unidentified sources, an alleged cover-up, a grand jury investigation, a special prosecutor, and even an indictment of a senior White House official. Yet, after a nearly two-year-long investigation, no one has been charged with the underlying crime of leaking the classified identity of a CIA agent. In this piece, I explain why the only indictment so far has been for alleged cover-up crimes, while no one, to date, has been indicted for outing an intelligence operative. I begin with a brief review of the long and convoluted story behind the leak. I follow this with an overview of the five-count indictment against Vice President Dick Cheney's former Chief of Staff I. Lewis "Scooter" Libby. After setting the background, I discuss the IIPA and the related Espionage Act, focusing on why no one has yet been charged with violating these laws. I conclude with a cautionary note on why this case is not necessarily over--and why it is even possible, although unlikely, that Bush administration officials might be indicted under the Espionage Act. The Background Commentators are often quick to point to the now famous sixteen words in President George W. Bush's 2003 State of the Union address as the starting point for Plamegate. In his address to the joint session of Congress in January of that year, the president insisted that "the British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa." The problem with this rationalization for the war in Iraq was that in 2002 the CIA had sent former Ambassador Joseph Wilson to Niger to investigate this claim--and he found no evidence to support it (Wilson 2004). Despite his conclusions (which were seconded by at least two other U.S. government investigations), President Bush continued to insist on the Niger-Iraq connection in an effort to justify a preemptive invasion of Iraq. (1) As a result, Wilson went on a media campaign--at first on background and subsequently on the record--criticizing the administration for ignoring his report and accusing it of manipulating intelligence to sell the war (see, e.g., Kristof 2003; Pincus 2003; Wilson 2003). To counteract Wilson's criticisms, senior administration officials leaked a story about Plame in an effort to discredit him (see, e.g., Cooper, Calabresi, and Dickerson 2003; Allen and Priest 2003). As Walter Pincus of the Washington Post described it, administration officials tried to persuade reporters to not give any credence to Wilson's investigation as it was a "boondoggle" arranged by his wife, who was a CIA employee (Pincus 2005, 27). To date, we know that at least half a dozen reporters were told of Plame's employment at the CIA. One of those journalists was Robert Novak, who in a July 14, 2003, column wrote: Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction. Two senior administration officials told me Wilson's wife suggested sending him to Niger.... The CIA says its counter-proliferation officials selected Wilson and asked his wife to contact him. "I will not answer any question about my wife," Wilson told me. (Novak 2003) On July 30, the CIA filed a report with the Department of Justice, alerting it that a possible crime might have been committed by those who disclosed Plame's identity as a CIA official (Wilson 2004, 359). …