The range of questions that Special Prosecutor Patrick Fitzgerald has asked witnesses in the CIA leak case suggests he may be exploring whether to charge White House officials with leaking garden-variety classified information.
Mr. Fitzgerald's initial mission was to see if the leaking of Valerie Plame's name violated a 1982 act that bars the intentional disclosure of an undercover intelligence operative's identity.
But lawyers and others close to the case say he may be piecing together a case that White House officials conspired to leak various types of classified material in conversations with reporters -- including Ms. Plame's identity but also other secrets related to national security.
A charge of leaking classified information might seem a stretch in Washington, where many believe that too much information is deemed classified -- and where, in any case, such information routinely passes among White House officials, congressional staffers and the media.
But there are some relevant earlier cases. A current investigation into the leaking of classified Pentagon information to the Israeli lobbying group, American Israel Public Affairs Committee, has resulted in three indictments.
For Mr. Fitzgerald, there may be advantages to such an approach. Building a case on leaking classified intelligence likely would require a lower burden of proof than proving the 1982 law was violated.
Moreover, concern about national-security leaks has grown in the intelligence community and Congress in recent years. In 2002, the Bush administration promised to make more use of civil sanctions to punish leaking.
The Plame investigation, originally sought by Central Intelligence Agency officials, began in September 2003 after her name appeared in the media in July. Critics, including Mr. Wilson, accused the White House of leaking her identity in an effort to undercut his claim that the administration had manipulated intelligence to support the Iraq war.
Exposing a covert agent's name might violate the 1982 Intelligence Identities Protection Act. But it is narrowly written, and includes a series of precise hurdles that need to be cleared to prove a crime.
More-general charges of leaking classified information would fall under the 1917 Espionage Act, which prohibits disclosure of "information relating to the national defense." That statute is broader, and would set a lower legal burden for proving a defendant's intent, legal experts said.
In part, the weight of an indictment on leaking classified information could depend on whether the exposure of Ms. Plame caused damage. That isn't clear. Damage-assessment reports commonly are done when such leaks occur, but congressional staffers say they haven't seen any such document related to this investigation.
The CIA did produce an initial report to see if assets were in danger or needed to be moved, a government official said. But that didn't take the form of a formal report to Congress, as has occurred in bigger espionage matters.
Lawyers warn there are numerous questions hovering over this seldom-explored area of the law. Despite a steady drip of leaks to reporters in Washington, the government rarely has brought charges against an official for disclosing classified material to a member of the media. It has obtained only one conviction, experts say, and the figure in that case -- a Pentagon analyst who released photographs of a new Russian aircraft carrier in the mid-1980s -- was pardoned by President Clinton in 2001 amid an outcry on his behalf by civil libertarians.
"Such a prosecution wouldn't be unprecedented, but I think it would be high risk," said Kathleen Clark, a professor at Washington University, St. Louis, who is an expert on national-security law.
| • | CIA Leak Queries Look at Disclosure of Classified Data
Wall Street Journal, Friday, Oct. 21, 2005 Byline: John D. McKinnon, Anne Marie Squeo and Joe Hagan, WSJ Staff Reporters |
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