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Thursday, October 09, 2003

"Deny, deny, deny"

Josh Marshall wrote today that he is suspicious about Scott McClellan's denials that either Scooter Libby or Elliot Abrams leaked Valerie Plame's name to the media.

Marshall is concerned because McClellan uses the same phrase over and over again and does not explicitly say that they did not leak Plame's name. McClellan says that neither was "involved in leaking classified information."

I did some hunting around on the web and found a story at Slate by Jack Shafer that might reflect White House spin on this issue, essentially providing a way for these guys to deny the specific charge without lying. Here's what Shafer wrote:
The problem with the Intelligence Identities Protection Act is that it doesn't appear to apply to the Novak case. To win a conviction, the law requires, among other things:

1) That the individual has or had "authorized access to classified information that identifies a covert agent." If Novak's administration sources had only unauthorized access to the information about covert officer Plame, learning about her identity and her mission, say, in a hallway conversation from a visiting CIA officer, the law wouldn't apply here. Perhaps they might go after the hypothetical CIA officer, but they'd run in to a slew of other legal problems sketched out below.

David Corn wrote, additionally, about a Newsweek claim that there's a NSC staffer who knew of Plame's identity because he or she previously worked closely with Plame. If White House insiders started talking about Plame's work and her marriage to Wilson, and then someone unauthorized to have the information went to Novak and other members of the media, then that person is as innocent of "leaking classified information" as Novak is.

This, perhaps, is their theory of the case. Daniel Drezner seems to buy some approximation, emphasizing the apparent lack of criminal/malevolent intent.

Then again, I'd think the NSC staffer would be guilty of the felony.

However, the second criterion is about the leaker's intentions. Back to Shafer:
2) That in addition to having had authorized access to the information about the covert agent, the individual must have "intentionally" disclosed it to an individual not authorized to receive classified information.

The NSC staffer could be protected by this requirement, perhaps figuring that someone like Libby, Rove, Abrams (or whoever) had authorization to know the information. Or, that person might even say the leak was inadvertent.

Here's the third requirement, again from Shafer:
3) That the individual knew he was disclosing information that identifies a "covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States."
Shafer says that the administration officials might be able to claim that the US was not trying hard to conceal the agent's identity for a future assignment. Or, the person(s) who went to the media without first hand knowledge could claim not to have known that Plame's CIA job was a secret. This might be why people like Novak are now trying to say that Plame-Wilson's identity was not secret. It was common knowledge on the cocktail circuit, or some such thing.

McClellan's parsing thus works out for people like Libby, Abrams or Rove, if they claim only that they did not have authorization to know of the classified information. By the time they heard about it, by definition, the info was not secret anymore. Someone else had spilled the beans. Again, the leaker is as innocent as Novak, at least before the law.

The NSC staffer would be technically guilty of leaking information, but probably did not have intent -- evinced by the fact that the person did not go running to the media.

So, someone in the press needs to push the relatively small group of suspects on the key question. Did you leak Plame's name or confirm her job?

The "classified information" angle is clearly a clever plot -- but I'm not buying McClellan's answer. In this view, the guys who had intent were leaking classified information, even if they didn't have authorized access to it.

Additionally, the administration has used that spin to widen the scope of the investigation so far that the President can express lament that the leaker may well never be caught. Why question the dozen likely suspects when 100s of people can be bothered to show their phone and email logs?

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