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Second Thoughts on Leak Case
Published on Wednesday, July 13, 2005 by the Boston Globe
Second Thoughts on Leak Case
by Robert Kuttner
 
in this space, I implied that the special counsel in the Valerie Plame leak case, Patrick Fitzgerald, might be protecting the Bush administration. It made no sense, I argued, that New York Times reporter Judith Miller was going to jail for protecting a source, while columnist Robert Novak, who first published the leak, either had revealed his source to Fitzgerald and thus solved the case or should be under similar threats but wasn't. Ergo: Fitzgerald was going after the press rather than the White House.

Wrong on all counts. In 20 years of writing columns for the Globe, I've had to print minor corrections, but this is the first story I really booted. I owe readers and prosecutor Fitzgerald an explanation and an apology.

Here's what we've learned:

First, Fitzgerald is playing it straight. Novak has apparently testified -- otherwise he'd be in jail with Miller. Fitzgerald has extensively investigated Bush officials. Karl Rove has likely testified, too.

I reasoned that Fitzgerald needn't subpoena other reporters because Novak could tell all. But after doing more reporting, I've learned that the reality is far more complicated.

Under the CIA nondisclosure law, an illegal disclosure has to be deliberate and knowing, and the CIA agent clandestine. Other published reports suggest that Fitzgerald is pursuing a possible case against Rove and other suspected leakers for perjury or obstruction of justice, which are easier to prove, especially if Rove was not entirely truthful in his testimony.

Fitzgerald would need others to corroborate the leaks Rove was peddling. Hence the effort to compel Miller and Matt Cooper of Time Magazine to testify.

The response of Rove's lawyer, Robert Luskin, to recent reports in Newsweek, which somehow got hold of reporter Cooper's subpoenaed memos fingering Rove, is highly instructive. Rove had previously insisted that he had never disclosed Valerie Plame's ''name." Now his lawyer admits that Rove, in trying to discredit former ambassador Joseph Wilson, told Cooper that Wilson's ''wife" was a CIA agent but didn't mention her by name.

So Rove is playing word games. What he said was literally true -- but a lie, since a reporter given this tip could easily identify Wilson's wife. Whether or not he used her name, Rove was deliberately outing Plame. If he played the same word games before the grand jury, he's in trouble.

The White House spinners also contend that Plame was not really a clandestine and protected CIA agent because she worked at CIA headquarters. This is also nonsense. Plame, a specialist on weapons of mass destruction, was under cover when she undertook sensitive missions. She was not identified as CIA. Blowing her cover harmed her career and put her at risk.

This all recalls two other famous cases where an administration fell afoul of a special prosecutor. Bill Clinton tried to persuade a grand jury and public opinion that oral sex wasn't sex. He nearly lost the presidency, not for his dumb affair with an intern but for lying. Richard Nixon was disgraced, not for the original Watergate break-in but for the coverup. George Bush, who doesn't know much about history, should take notice.

After a week's reporting and reflection, I also suggest a different view of press privilege and the public interest. In the Alice in Wonderland world of the Plame-Rove story, Judith Miller, who worked hand in glove with the Bush administration to publish bogus stories about Saddam Hussein's alleged nuclear program, is a hero -- for going to jail to protect, once again, her friends in the administration. And Time-Warner, which turned over Matt Cooper's notes (for the wrong reasons -- Time-Warner's corporate interests -- but that's another story) is the villain. Yet it may be Cooper's testimony that finally sinks Rove. So who's the hero and what's the public interest?

As Michael Kinsley has observed, not all leaks are created morally equal. It's one thing for reporters to protect a brave whistle-blower who has taken personal risks to serve the public interest. It is another thing for reporters to collude with the powerful to punish the whistle-blower, in this case Joseph Wilson, and his wife, an innocent bystander.

Is the public good served by helping Fitzgerald learn who at the White House broke the law? Or is it served by having reporters protect Karl Rove? We need a public interest test, not an absolute privilege.

The other journalistic moral of the story: Do your reporting before you write the column. I hope it's another 20 years before I have to write another such apology.

Robert Kuttner is co-editor of The American Prospect.

© 2005 Boston Globe

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