March 14, 2006,
One of the mysteries of the CIA-leak case involves the series of events through which the publication of CIA employee Valerie Wilson's identity led to a Justice Department investigation, which in turn led to the appointment of special prosecutor Patrick Fitzgerald. Just how did that process work? Was it influenced by political pressure? Was there a consensus of opinion that an investigation should go forward or was it a matter of some debate?
Fitzgerald has steadfastly refused to provide lawyers for Lewis Libby, the vice president's former chief of staff charged with perjury and obstruction in the case, with any documents concerning Valerie Wilson's status at the CIA. Fitzgerald has also refused to provide Libby with any evidence on whether the disclosure of Wilson's identity caused any damage to national security; at a hearing on February 24, Fitzgerald told Judge Reggie Walton that he did not intend to offer "any proof of actual damage" caused by the disclosure.
Finally, Fitzgerald has refused to give Libby the original referral from the CIA to the Justice Department which started the investigation. Fitzgerald has said that all of that information whether Wilson's job status was classified, what (if any) damage was done by the disclosure of her identity, and the referral is none of Libby's business, since Libby is charged with lying, and not with revealing Wilson's identity.
But now there are clues, contained in recently released court papers, that the documents which Fitzgerald does not want to release might reveal that the CIA leak investigation had a rocky, contentious beginning, and that there was disagreement between the CIA and the Justice Department about whether there should be any investigation at all.
The clues suggest that when the CIA, which was involved in an ongoing feud with the White House and especially Vice President Dick Cheney's office, originally asked the Justice Department to investigate the Wilson leak, career officials at the department, possibly skeptical that such an investigation would be successful, took no action on the matter. (In evaluating a referral, those officials would try to assess the proposed investigation's eventual chance of success, and so far, after more than two years, the Fitzgerald probe has not led to any charges of violations of national-security laws.) Only when then-CIA Director George Tenet personally intervened with the Justice Department and Tenet's intervention was leaked to the press, setting off a political firestorm did the department agree to an investigation, a decision that ultimately led to the appointment of Fitzgerald.
In a court ruling issued in the Libby case last Friday, Judge Reggie Walton discussed the CIA's role in the beginning of the Wilson probe. Walton conceded that he did not know precisely what steps the CIA had taken in the matter; he has not seen the material that Fitzgerald is refusing to release, and he noted that the agency's role was not fully "transparent." But he said, "It is clear ... that the [CIA] undertook internal deliberations regarding whether to refer the alleged unauthorized disclosure of classified information to the Department of Justice for criminal investigation." Beyond that, Walton continued, "These internal deliberations resulted in the creation of documents containing 'pre-decisional preliminary evaluations and recommendations of government officials' and also a 'legal analysis and opinion prepared by a CIA attorney, as well as communications between the CIA attorney and the Department of Justice.'"
Walton was quoting another recently released document, a February 21 letter from Fitzgerald's deputy, Kathleen Kedian, to the Libby defense team, which explained why Fitzgerald refused to turn over the referral. "After consultation with the CIA," Kedian wrote, we advise that we view any such documents in our possession as not discoverable."
The documents remain classified and contain information compiled for law enforcement purposes that is neither material to the preparation of the defense, nor exculpatory as to Mr. Libby. In addition, the documents are protected from disclosure because they contain inter-agency, pre-decisional preliminary evaluations and recommendations of government officials covered by the deliberative process privilege. Moreover, the documents also contain legal analysis and opinion prepared by a CIA attorney, as well as communications between the CIA attorney and the Department of Justice, that are protected from disclosure by attorney-client communications privilege and the attorney work product privilege.
Kedian's letter, and Judge Walton's reading of it, establish that there was extensive deliberation in the preparation of the CIA leak referral. That would be expected in any referral. But other publicly available information suggests that the Wilson referral was more complicated than other, more routine, referrals.
It appears that the CIA first contacted the Justice Department about the Wilson leak shortly after Wilson's identity was revealed in a column by Robert Novak on July 14, 2003. Such referrals are often handled quickly by the Justice Department. But the Wilson referral was not; it appears to have languished inside the department for more than two months. And then, on the weekend of September 27-28, all hell broke loose, when news leaked that George Tenet had written a letter to the Justice Department about the matter.
On Monday, September 29, 2003, the Washington Post reported that "The controversy erupted over the weekend, when administration officials reported that Tenet sent the Justice Department a letter raising questions about whether federal law was broken when the operative, Valerie Plame, was exposed. She was named in a column by Robert D. Novak that ran July 14 in The Post and other newspapers. CIA officials approached the Justice Department about a possible investigation within a week of the column's publication. Tenet's letter was delivered more recently."
It is not clear what accounted for the Justice Department's delay in beginning the Wilson investigation. But the chronology, along with the information in the Kedian letter, suggests that the Wilson matter was the subject of an extended consultation between the CIA and the Justice Department, in that the department took no action on the CIA's request until news of Tenet's intervention was leaked to the press. At that point, with political pressure rising, the department began an investigation. Three months later, with political pressure even more intense, the attorney general and his deputy recused themselves from the matter and appointed Fitzgerald.
Will the public ever learn what happened? Judge Walton has said he will decide in a few weeks whether to order Fitzgerald to turn over information on Valerie Wilson's job status and whatever damage might have resulted from the disclosure of her identity. Perhaps Walton will rule in Libby's favor; the judge has already given the defense more than some observers predicted. But it may well be that Walton will rule that the internal deliberations that led to the CIA's initial referral, and then to the start of the Justice Department investigation, are, as Kedian argued, privileged and thus will never be released.
Byron York, NR's White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President and Why They'll Try Even Harder Next Time.