What to think of the quite astonishing revelation that Bob Woodward was told by administration sources—not Scooter Libby or Karl Rove, it seems clear—that Joseph Wilson's wife worked at the CIA, and told a month before what Special Prosecutor Patrick Fitzgerald said was the first revelation by an administration source, Libby, to a member of the press?
Woodward, according to Kurtz, notified Downie of the June 2003 interviews "late last month," i.e., October 2005. Kurtz quotes Woodward's reason for not notifying him earlier: "I hunkered down. I'm in the habit of keeping secrets. I didn't want anything out there that was going to get me subpoenaed." It appears that Woodward's source outed Woodward to Fitzgerald, and Woodward gave sworn testimony to Fitzgerald this past Monday. The Post story appeared on Woodward's testimony, and Woodward's statement appeared in yesterday's issue. Kurtz's interview appeared on www.washingtonpost.com later in the day. This morning's Post ran a story saying that Woodward's disclosure tends to undermine the case against Libby.
Observations:
In yesterday's story, Woodward is quoted as saying that he told Post reporter Walter Pincus that he had heard that Wilson's wife worked for the CIA. Pincus is quoted as saying that he does not recall Woodward's telling him this and that he is sure he would have remembered if Woodward had. I have known Woodward for 32 years and Pincus for about 20 years, and I find it impossible to believe that either would consciously lie about such matters. Therefore, I am forced to believe that memory is playing tricks on one of them. Since memory plays tricks on me from time to time, I don't find that implausible.
But you could see this as a sort of partisan dispute. Woodward's reporting on George W. Bush, as is evident in his books, is seen by many critics as pro-Bush. In my view, he has taken Bush at face value, describing how the president makes decisions and taking Bush's own words seriously. Which is, in my view, the way it should be. Pincus's reporting, on the other hand, has relied heavily on critics of the Bush policies, including, it appears, sources in the CIA. It is obvious that cadres in the CIA—the folks around Valerie Plame who sent Joseph Wilson on his mission to Niger, the folks who authorized the publication of Michael Scheuer's "anonymous" book—have been trying to discredit and undermine support for Bush's policy of liberating Iraq. I suspect that Pincus takes the same view, though he could argue that his reporting was justified regardless of his own views: He was just reporting what others, with some knowledge of what they were talking about, were saying. I don't want to say that Woodward is pro-Bush and Pincus anti-Bush. But I can see how readers who don't know these men as well as I do would so conclude.
One sees something here that resembles the intra-newsroom internecine warfare at the New York Times between Judith Miller and those—the great majority in that newsroom, it seems—who believe that her stories on reports that Saddam Hussein had weapons of mass destruction were illegitimate journalism. That seems to me quite wrong: She was reporting on what sources she had reason to believe were legitimate said, and she was not obliged before she wrote those stories to seek information to discredit what in fact the intelligence agencies of the United States and all serious countries believed. Miller's reporting was trashed in a huge mea culpa story in the Times last year, and she has now been forced to leave the paper. I am inclined to believe that she has been found guilty of writing stories that furthered the goals of the Bush administration, which of course is something the Times cannot allow.
The Post's position is different. Downie did not order Woodward to write about his interviews with administration officials immediately after Woodward informed him about them. But after Woodward provided sworn testimony to Fitzgerald, the paper promptly wrote up the story, together with Woodward's statement, and then allowed Kurtz to pursue the story further. It put the contradiction between Woodward's and Pincus's recollections out there for all to see and interpret as they wish. Downie, who presumably made the decisions about what the Post would print, has let the facts and the reporting speak for themselves and not imposed a politically correct frame of reference. This is in line with what I expect from Downie, whom I have known for at least 20 years, and who I believe seeks fairness and accuracy above all else. Mickey Kaus speculates that the official from whom Woodward heard that Wilson's wife worked in the CIA was Secretary of State Colin Powell. It's obvious from more than one of Woodward's books that Powell is one of his best sources.
Patrick Fitzgerald has to be embarrassed. His statement at his press conference that Libby was the first administration official who identified Plame has been effectively refuted by Woodward's (reluctant) testimony. On Fox News Channel last night, Brit Hume interviewed former U.S. Attorney for the District of Columbia Joseph diGenova, who said that under Justice Department guidelines Fitzgerald must consider dropping the indictment of Libby.
It is now clear that Mr. Libby's allegation by his lawyers that his memory was simply faulty makes a lot more sense now that we know that Bob Woodward was in fact the first person to receive that information not from Mr. Libby but from another, apparently former, government official," diGenova said. Former Justice Department official Victoria Toensing, diGenova's wife and law partner, said, "He has been investigating a very simple factual scenario, and he has missed this crucial fact. It makes you cry out for asking, 'Well, what else did he not know; what else did he not do?'"
Defenders of Fitzgerald's indictment can argue that its charges that Libby lied still stand. But the differing recollections of Woodward and Pincus could strengthen a defense based on faulty memory, and Woodward's disclosure refutes the timeline that Fitzgerald presented at his press conference.
Beyond the confines of this criminal case are the perspectives of the Bush administration that will be taken by history. The view from Woodward's books is of a president and his advisers trying to find policies that will protect this country and advance the causes of freedom and democracy in a difficult world. The view from the reportage of Pincus and of the "Bush lied" crowd of Democrats is of a "cabal" (Colin Powell's chief of staff's word) bent on distorting intelligence and willing to risk the country's security by outing a secret CIA agent in retaliation for her husband's critical op-ed piece in the New York Times. I think the outlook from Woodward's book is more accurate. And I think his bombshell revelation weakens the already weak case for the alternative point of view. At a dinner at the Australian Embassy, I asked the by then former CIA Director George Tenet whether people in the agency had been engaging in covert attacks on administration policy. He said that absolutely no such thing had taken place. I doubted that then and doubt it very much more now. Bob Woodward first won his fame by exposing the lies of a White House that had attempted, unsuccessfully, to use the CIA to refute charges that its campaign committee had engaged in criminal activities. Now he comes forward, reluctantly it seems, to provide evidence that advances the case that the CIA tried to derail and delegitimize the policies that a White House was pursuing.
I recall that some years ago Sen. Daniel Patrick Moynihan argued that the CIA should be abolished, and I argued that that was a ridiculous and irresponsible position. As usual when Pat and I disagreed, Pat turned out to be right.
Special Counsel Patrick Fitzgerald should drop his prosecution of I. Lewis "Scooter" Libby, Vice President Dick Cheney's former chief of staff. In light of Bob Woodward's recent revelations, suggesting that he could have told Mr. Libby of Valerie Plame's CIA employment, Mr. Libby's conviction seems unlikely.
Although Mr. Fitzgerald was exempted from the normal Department of Justice regulations governing the conduct of a special counsel, he should nevertheless follow the requirements of the U.S. Attorneys Manual, which provides that "both as a matter of fundamental fairness and in the interest of the efficient administration of justice, no prosecution should be initiated against any person unless the government believes that the person probably will be found guilty by an unbiased trier of fact." Mr. Fitzgerald may well have believed this standard met when he sought the indictment; he should now reconsider.
Mr. Fitzgerald was originally tasked to investigate whether the revelation, reported by Robert Novak in July 2003, that Bush critic Joseph Wilson's wife worked for the CIA violated the law. The Intelligence Identities Protection Act (IIPA) was enacted in 1982, and criminalizes the exposure of "covert" American agents. However, to fall within this protected category, an individual in Mrs. Plame's situation must: (1) be employed in a classified status; (2) either be serving overseas or have served overseas within five years; and (3) the government must be taking affirmative measures to conceal its relationship to the individual. Although Mrs. Plame's employment was allegedly "classified," her husband's own published memoirs suggest that she returned to Washington more than five years before her status was revealed. Moreover, the government was not taking "affirmative measures" to conceal her employment within the IIPA's meaning. In fact, she was living openly under her own name and working at CIA headquarters in Langley, Va. Significantly, nowhere does the indictment claim that any government official informed Mr. Libby even that Mrs. Plame's employment was "classified."
Not surprisingly, Mr. Fitzgerald has not charged anyone with an IIPA violation. Instead, he sought an indictment against Scooter Libby for perjury and obstruction of justice. The core of this case is the claim that Mr. Libby misled investigators, and the grand jury, about having been told of Mrs. Plame's CIA employment by journalists. In particular, the indictment alleges that Mr. Libby claimed to have been informed of Mr. Plame's status by NBC's Tim Russert in July 2003, and that he later told both Time Magazine's Matthew Cooper and The New York Times' Judith Miller he had heard this fact from other reporters. Evidently, each of these journalists remembers things differently, and that is the foundation of Mr. Fitzgerald's case against Mr. Libby.
Enter Bob Woodward, the Pulitzer Prize-winning (for reporting the Watergate scandal with Carl Bernstein) assistant managing editor of The Washington Post. Mr. Woodward has told prosecutor Fitzgerald that he was informed of Mrs. Plame's CIA connection by another government official in mid-June 2003 ("the reference seemed to me to be casual and offhand, and it did not appear to me to be either classified or sensitive"). Moreover, Mr. Woodward has also stated that he met with Mr. Libby on June 27, taking with him a list of questions which included references to "yellowcake" and to "Joe Wilson's wife." Mr. Wilson, of course, was sent to Niger by the CIA (evidently at his wife's recommendation) to investigate whether Saddam Hussein tried to buy nuclear weapons (yellowcake) material there. Responding to Mr. Fitzgerald's questions, Mr. Woodward also stated that it was possible (although he does not recall) that he discussed Mr. Wilson or Mrs. Plame with Mr. Libby.
Truth, as they say, is the daughter of time. It is entirely plausible that, whatever the recollections of Mr. Russert, Mr. Cooper and Ms. Miller, a journalist did raise Valerie Plame's CIA connections with Mr. Libby -- who simply confused Bob Woodward with Tim Russert, both of whom are prominent Washington media figures. A reasonable jury could certainly reach this conclusion and, at a minimum, the possibility should raise a reasonable doubt in their minds regarding whether Mr. Libby has perjured himself or obstructed justice. Conviction beyond a reasonable doubt has been variously defined, but generally requires an abiding conviction, to a moral certainty, of the truth of the charge. Is it morally certain that Mr. Libby lied, or did he simply not remember correctly?
Moreover, perjury is not just lying under oath; it is lying under oath about something material. The other counts against Mr. Libby similarly depend upon a material misrepresentation of fact. In this case, the critical fact was that Mr. Libby heard of Mrs. Plame's CIA employment from media, as well as from government, sources. The precise media source is irrelevant.
Mr. Fitzgerald could, of course, insist on proceeding with a criminal trial. However, in the interests of justice, and especially since the identity of a covert agent was not revealed in this case, he should simply drop the prosecution now. To paraphrase Gertrude Stein, it is increasingly evident that there is just no there there.
David B. Rivkin and Lee A. Casey are partners in the Washington office of Baker & Hostetler LLP, and served in the Justice Department under Presidents Reagan and George H.W. Bush.
November 17, 2005 -- CALL it "Deep Throat 2." The CIA-leak probe is in big trouble because superstar reporter and Watergate hero Bob Woodward has emerged as a surprise witness for the defense — potentially undermining the case against ex-White House aide Scooter Libby. Woodward yesterday revealed that he's told prosecutors he could be the first reporter to learn from a Bush administration source that Iraq war critic Joe Wilson's wife worked as a CIA analyst — but Libby wasn't his new "Deep Throat."
Independent counsel Patrick Fitzgerald has claimed that Libby was the first official to blow Valerie Plame Wilson's cover and he lied to conceal his role — resulting in perjury charges, even though Libby isn't accused of outing an agent.
But now Woodward says he was told about Plame before Libby spoke to any reporter — and he also undermined the prosecutor's claim that she was in any way undercover.
"I testified that the reference [to Wilson's wife] seemed to me to be casual and offhand, and that it did not appear to me to be either classified or sensitive. I testified that according to my understanding, an analyst in the CIA is not normally an undercover position," the Washington Post star said.
Woodward — famed for his top-level government sources — refused to say who tipped him off, but did name his source to Fitzgerald under oath on Monday.
Woodward's statement also says it was "Deep Throat 2" — a "current or former" Bush administration official — who first went to prosecutors to reveal their conversation, surely well aware that it would help Libby.
Woodward yesterday apologized to his editors for failing to tell them about his knowledge of Plame for over two years, saying he didn't want to get subpoenaed.
But Woodward's revelation undermined the prosecutor's claim that Libby was working to out Wilson's wife — since Woodward revealed that he spoke to Libby twice about Iraq's weapons around that time, but Libby never mentioned her.
A prosecution spokesman, Randall Sanborn, declined comment.
This week, Bob Woodward didn't break a story. He entered the story. On Wednesday, The Washington Post, Woodward's home base, disclosed that two days earlier the nation's most prominent reporter had given a sworn deposition to special counsel Patrick Fitzgerald.
According to a statement issued by Woodward, the week after Fitzgerald indicted Scooter Libby, Fitzgerald asked Woodward to come in for a chat--under oath. What had happened was that a senior administration official had recently revealed to Fitzgerald that in mid-June 2003--a month before conservative columnist Bob Novak published the administration leak that outed Valerie Wilson as an undercover CIA official--this Bush official had told Woodward that Valerie Wilson worked for the CIA as a WMD analyst. (The official apparently has not permitted Woodward to disclose his or her name publicly.) This revelation changes the chronology of the leak case.
Previously, Libby's June 23, 2003 conversation with New York Times reporter Judith Miller was the first known instance of a Bush administration official telling a reporter about former ambassador Joseph Wilson's wife and her employment at the CIA. Now, it turns out, another top administration figure shared this classified information with Woodward a week or so earlier.
Yet another round of Plamegate guessing has exploded. Who was Woodward's source? Was this person Novak's original source? (As of now, only the second of Novak's two sources--Karl Rove--has been fingered.) Why did Woodward sit on this information and not even tell the editor of his paper about this conversation until late last month? (Woodward has apologized to Post executive editor Len Downie Jr.) Did Woodward's possession of this inside information prompt him to criticize the leak investigation repeatedly on talk shows? Was he putting down Fitzgerald to protect or curry favor with one of his insider sources? Will this have any impact on the case against Libby?
As for the big who-is-it question, no sooner had the speculating begun that several obvious suspects denied being Woodward's source. An unnamed administration official quickly told The New York Times that neither Bush, White House chief of staff Andrew Card Jr, nor White House aide Dan Bartlett had spilled this secret to Woodward. Spokespeople for Colin Powell, former CIA chief George Tenet and former CIA director John McLaughlin did the same. (By the way, how can an administration official issue such a denial when the White House position is that it will not comment on the leak case while the investigation remains open?) A lawyer for Rove said that Rove was not the one. (Rove only talked about Wilson's wife with Novak--supposedly as Novak's second source--and Time's Matt Cooper.) As the Times noted--slyly?--"Mr. Cheney did not join the parade of denials." Nor, it seemed, did Richard Armitage, who was deputy secretary of state under Powell.
After these denials came out, a smart columnist called me and asked isn't it now clear the available evidence indicates that Cheney, who was previously interviewed by Fitzgerald, was Woodward's source and that Libby had lied to prevent Cheney from being charged with perjury. Not necessarily, I replied. It's worth noting that, according to the Libby indictment, when Cheney told Libby on June 12, 2003, that Wilson's wife was in the CIA, he said she worked at the Counterproliferation Division, which is part of directorate of operations (aka the DO), the clandestine portion of the CIA.
Woodward claims that his source described her as a WMD analyst. The difference in the terminology might be significant. Then again, it might not be. It's also hard to imagine Cheney approaching Fitzgerald and conceding anything, even if he was worried about Libby flipping (and there have been signs of that). But if Cheney--who had been collecting information on Wilson's wife apart from what Libby was doing--did tell a reporter about Valerie Wilson (particularly after finding out she worked in the DO, where most employees are undercover), that would be a rather dramatic shift in the leak saga.
[UPDATE: On Thursday night, the Associated Press reported that a "person familiar with the investigation" said that Cheney was not Woodward's source. Richard Armitage, look out. CNN is reporting that a spokesperson for Armitage said "no comment" when asked if Armitage was Woodward's source--which makes Armitage the only person on the Official Speculation List who has not yet denied it.
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