Special Analysis Report: The Valerie Plame Scandal, Part I

On July 14, 2003, in "Mission to Niger," journalist Robert Novak wrote, "Valerie Plame... is [a Central Intelligence] Agency operative on weapons of mass destruction." Mr. Novak continued, "Two senior [Bush] administration officials told me..."

That was 583 days ago.

On December 30, 2003, then-Attorney General John Ashcroft announced at a news conference (covered by, among other media outlets, CNN in "Ashcroft recuses himself from CIA leak probe") that he had recused himself from the Justice Department investigation of who in the Bush Administration disclosed the identity of Ms. Plame. Mr. Ashcroft appointed Deputy U.S. Attorney General James Comey as acting Attorney General with respect to the investigation. In the same news conference, Mr. Comey announced that Patrick Fitzgerald, U.S. Attorney for Northern Illinois, would serve as special prosecutor for the investigation.

That was 413 days ago.

Mr. Fitzgerald is not an Independent Counsel, as that term was used during the era when an Act of Congress enabled such separate prosecutors to exist pursuant to certain investigations. Mr. Fitzgerald reports directly to the Justice Department. He does not report to the Congress, nor does he report to any committee or subcommittee thereof. According to a USA Today article dated 12/30/03, "Fitzgerald will not have a separate budget for the probe; he will use existing Justice resources. That will make it difficult to assess the investigation's cost." Because there is no separate budget, and because Mr. Fitzgerald draws the entirety of the resources for his work from the Justice Department's funds, his office—like all divisions, offices, and compartments with the Department—has funds to the extent that his reporting superior approves or allows.

But perhaps more importantly, because Mr. Fitzgerald reports directly to a Justice Department officer, any and all prosecutorial actions—subpoenas, search warrants, offers or grants of use or blanket immunity, bills of information or solicitations for indictments by a federal grand jury—are theoretically subject to review by the Justice Department through the supervising officer and acting Attorney General for the investigation, James Comey, notwithstanding assurances that Mr. Fitzpatrick has "broad" latitude and "will not have to" seek prior approvals for certain of his actions. Mr. Fitzpatrick's position and appointment both arise from political appointees, and it is those appointees, not Members of Congress elected by the People, who have the power of the purse over this investigation.

Subsequent to the resignation of Attorney General John Ashcroft, his successor, Alberto Gonzales, stated through a Justice Department spokeswoman on February 11, 2005, that he had recused himself the week before with respect to the investigation by Patrick Fitzgerald, effectively re-appointing James Comey as acting Attorney General in the investigation. However, as reported on February 6, 2005, by the Washington Post in the article "Gonzales to Take 3 White House Lawyers to the Justice Department," the newly appointed United States Attorney General, Alberto Gonzales, tapped White House attorneys Ted Ullyot, D. Kyle Sampson, and Raul Yanes to join him at the Justice Department. According to that article, "...Ullyot and Yanes were the coordinators of the White House's response to the investigation into the leak of CIA operative Valerie Plame's identity."

No source has yet been found reporting that Mssrs. Ullyot, Sampson, and Yanes have recused themselves from the Justice Department investigation being overseen by Mr. Comey.


Although this matrix of conflicts of interest has been discussed at length in both the mainstream press and in alternative news and information spheres, little has been noted concerning the core criminal act or acts that could be prosecuted.

It is generally assumed that Mr. Fitzpatrick is seeking information through investigation and grand jury testimony pursuant to violations of the Intelligence Identities Protection Act. A review of certain provisions within this Act is worthy of consideration:

The discloser of an operative's identity must know that the operative has been undercover within the past five years in a foreign country.

The discloser must know that operative's identity is a secret.

If the discloser does not, himself or herself, have clearance to the classified information disclosed, the discloser's act must be part of a scheme carried out with the intent of harming the intelligence-gathering capabilities of the country.

The question, then, on the first point is this: did Mr. Novak know that Valerie Plame was operating undercover and that she was conducting these operations in a "foreign country"? With respect to recent allegations that a certain journalist favored at White House press briefings was the conduit from the Bush Administration to Mr. Novak, did this gentleman know the same?

The question, then, on the second point is this: did Mr. Novak or the alleged conduit know that Ms. Plame's identity was a secret? On September 29, 2003, in the National Review Online, in the article "Spy Games," Clifford May said, "[Valerie Plame's status as an NOC] wasn't news to me. I had been told that — but not by anyone working in the White House. Rather, I learned it from someone who formerly worked in the government and he mentioned it in an offhand manner, leading me to infer it was something that insiders were well aware of."

The question, then, on the third point is this: was the disclosure by Mr. Novak or by the alleged middleman part of a pattern of disclosures, and was that pattern done with the intent of hurting the spy network of the United States? It goes almost without saying that the presumption has been, all along, that Mr. Novak made the disclosure of Valerie Plame's identity as revenge against her husband, former ambassador Joseph Wilson, who had openly discredited a claim by the Bush Administration that Saddam Hussein was trying to secure a precursor to weapons-grade uranium from an African country.

Were a prosecution of Mr. Novak, his alleged conduit, or Bush Administration officials ever to come about, the above information indicates that success would be highly doubtful. It would be up to the empaneled jury to decide, based exclusively upon the facts placed before it—given the language of the law—whether or not a crime had been committed under the Intelligence Identities Protection Act. Without material evidence of wrongdoing, and without even a broad sweep of circumstantial evidence consistent with violation of the Act, the prospects for conviction are not good.

But all of this is moot for the time being.

So far, not one Bush Administration official has been brought before the bar of justice in the matter of the disclosure of Valerie Plame's identity as a spy; and to date, no hard evidence that would overcome reasonable doubt has been presented that anyone within the Bush Administration violated provisions of the Intelligence Identities Protection Act.

So far, Robert Novak—the journalist who disclosed the on-going work of Valerie Plame as an NOC for the CIA—has not been charged with disclosing Ms. Plame's identity; and to date, no hard evidence that would overcome reasonable doubt has been presented by any mainstream or alternative-press journalist that Mr. Novak violated provisions of the Intelligence Identities Protection Act.

So far, the alleged outside conduit who has been accused by some of passing the information about Ms. Plame from within the Bush Administration to Mr. Novak has been revealed as an untrained journalist; a man with possible personal connections to Bush Administration officials; and possibly a principal operator of, and participant in, sex-related business activities. He has not, however, been shown by even circumstantial evidence by any mainstream or alternative-press journalist to have violated provisions of the Intelligence Identities Protection Act.

In other words, as the matter now stands, given the situation of the special prosecutor's office, the language of the Intelligence Identities Protection Act, and the state of evidence known to the public in general and journalists and bloggers in particular, those who want justice done in the matter of the outing of Valerie Plame have one and only one thing to which they can lay claim.

It's called "snake eyes." Five hundred eighty-three of them, in fact.




The Dark Wraith will proceed with Part Two of this series later this week.

---

Go to
Part Two     Part Three
of this series.