As Karl Rove's defenders are fond of noting, the 1982 Intelligence Identities Protection Act, the law that prohibits officials from disclosing an undercover operative's identity, sets a high bar for criminal violation. In order for Rove to be convicted of breaking that law, investigators would need to show that he was aware of Valerie Plame's undercover status at the time he disclosed her identity to reporters. But now there may be a new twist in the case: In Newsweek, Michael Isikoff reports that the CIA never mentioned the 1982 law in its "crimes report" to the Department of Justice. And as the National Journal's Stuart Taylor pointed out on "Meet the Press" on Sunday, Patrick Fitzgerald, the prosecutor in the case, may be looking instead at another law -- the Espionage Act of 1917, which makes it a crime to disclose any classified information, even if the disclosure is accidental. Under this law, Rove may be in more trouble than his defenders are willing to let on.
This new theory has to do with that top-secret State Department briefing memo we've been hearing about for a couple weeks now. The memo, which was produced by the State Department in June of 2003, laid out Joseph Wilson's role in examining claims that Saddam Hussein sought uranium in Africa. The memo was a topic of much discussion among administration officials in the week after Wilson went public with what he'd found in Africa. According to Newsweek, the Washington Post, and the Wall Street Journal, the memo identified Wilson's wife -- it called her Valerie Wilson, not Plame -- in a paragraph explicitly marked as classified. Specifically, reports Isikoff, the section was labeled "snf," meaning "Secret No Foreign," which specified that the information was secret and not be shared with foreigners.
For Rove -- or Lewis Libby, or any other government official -- to be found guilty under the 1982 law, the prosector would need to show that Rove knew that Plame was undercover. But to find him guilty of breaking the 1917 law, you might only have to show that he learned her identity from a classified document -- i.e., the State Department briefing memo -- and then disclosed what he'd learned to people not entitled to secret information. In this scenario Plame's undercover status doesn't matter -- only the fact that Rove (hypothetically, of course) learned her name from a secret document.
But let's leave aside the prospect of Rove's criminal prosecution for a second. As we and many others have been asking for a while, why isn't anyone at the White House worried that Rove was talking to reporters about information that we now know to be classified? You can click here to see a PDF document of the kind of nondisclosure agreement Rove and other White House employees are made to sign when they begin their jobs. Section 3 of the document states (the emphasis here is our own): "I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation. I hereby agree that I will never divulge classified information to anyone..... I understand that if I am uncertain about the classification status of information, I am required to confirm from an authorized official that the information is unclassified before I may disclose it..... I further understand that I am obligated to comply with laws and regulations that prohibit the unauthorized disclosure of classified information."
Even if he didn't violate the law, and even if he disclosed the information accidentally, why is it not clear to people in the White House -- say, President Bush -- that Rove violated this agreement when he spoke to Matt Cooper and Bob Novak? The White House, of course, won't answer any questions about this. But John Aravosis of AmericaBlog notes that on ABC's Sunday show "This Week," George Stephanopoulos asked Republican Sen. John McCain whether he believes the White House should stand by the agreement Rove signed.
McCain started to say, "I do, but that also implies that someone knowingly revealed...." Stephanopoulos then cut in to point out, "This covers negligent disclosures."
McCain responded, "Again I don't know what the definition of 'negligent' is." If Karl Rove is to survive this thing, somebody at the White House is going to have to come up with a better defense than that.