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On October 16, columnist George Will suggested that special prosecutor Patrick J. Fitzgerald has "changed statutes in midstream," overstepping the original mandate granted him by the Department of Justice (DOJ) in his investigation of the CIA leak case. This argument -- also recently advanced by Washington Post columnist Richard Cohen -- rests on the unfounded claim that Fitzgerald's prosecutorial authority was limited to a single statute, the 1982 Intelligence Identities Protection Act (IIPA), which forbids the intentional disclosure of a covert intelligence officer's identity. In fact, Fitzgerald received a broad mandate to investigate the alleged leak of Valerie Plame's identity as a CIA operative by Bush administration officials and is not limited to investigating possible violations under any one specific statute.
Further, Weekly Standard editor William Kristol claimed that the CIA originally referred the leak case to DOJ specifically as a possible violation of the IIPA. But this claim, too, appears to be baseless.
On the October 16 edition of ABC's This Week, Will accused Fitzgerald of changing "statutes in midstream" and equated his investigation to Captain Ahab, a character in Herman Melville's novel Moby-Dick, "chasing a white whale":
WILL: So I think -- but the interesting thing is all this started from the supposed violation of a 1982 statute that has nothing to do with this case; people are now agreed on that. So the special prosecutor has changed statutes in midstream as often happens in these cases.
FAREED ZAKARIA (Editor, Newsweek International): Almost always happens in these. This is why special prosecutors are a bad idea.
WILL: Correct. So the question is partly now what [Vice President Dick Cheney's chief of staff I. Lewis "Scooter"] Libby, [White House senior adviser Karl] Rove, et cetera, did and partly what kind of person is this Fitzgerald, who has spent 22 months of his life chasing a white whale. Is he Ahab?
ZAKARIA: But they're all Ahabs, aren't they? I mean, [Iran-contra scandal independent counsel] Lawrence Walsh was an Ahab.
But Will's suggestion that Fitzgerald was initially tasked with investigating "the supposed violation" of the IIPA is false. Fitzgerald's official delegation as special prosecutor, which was reprinted in a 2004 Government Accountability Office decision paper, did not mention the IIPA, nor any other specific statute. Rather, it granted him "all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity."
Moreover, the DOJ official who appointed Fitzgerald as special prosecutor, then-deputy attorney general James Comey, stated in a December 30, 2003, press conference that "Mr. Fitzgerald alone will decide ... what prosecutive [sic] decisions to make" and that "he can pursue it [the leak investigation] wherever he wants to pursue it." Such a mandate would certainly allow Fitzgerald to pursue charges under a range of federal prohibitions, including conspiracy, perjury, obstruction of justice, as well as the disclosure of classified material under the 1917 Espionage Act (which concerns the release of classified information to someone not authorized to receive it).
Similar to Will's assertion is a comment made by Weekly Standard editor William Kristol regarding the origins of the CIA leak investigation. On the October 16 edition of Fox Broadcasting Co.'s Fox News Sunday, Kristol stated that the CIA referred the case to the DOJ as a possible violation of the IIPA in particular. He described as "amazing" that neither Rove nor Libby are likely "to be prosecuted for violating this act":
KRISTOL: Look, what's amazing about this to me is the following. On July 30th, the CIA referred to the Justice Department the leaking of Valerie Wilson or Valerie Plame's name for investigation under the -- what's it called?
BRIT HUME (Fox News Washington managing editor): Foreign Intelligence and Identities Act, a very odd name.
KRISTOL: Right, from 1982. There's almost no chance, I think, that Rove or Libby are going to be prosecuted for violating that act. On the other hand, the CIA began this process of a criminal investigation. It went from a Justice Department investigation to a special prosecutor at Christmas of 2003. And I now think -- and I hate the criminalization of politics. I think it's really ridiculous, when you step back and say of all the leaks that have come out in the last four or five years, is this is the one leak that deserves to be prosecuted of possibly classified information. But talking to people pretty close to both Libby and Rove outside of government, who therefore can talk about it, I think they expect the worst now. I think they expect --
CHRIS WALLACE (host): That both Libby and Rove will be indicted.
KRISTOL: I believe, if I had to predict -- and I don't know more about this than anyone else reading the papers -- that both Libby and Rove will be indicted, not for what the original referral was about, but for some combination of disclosing classified information, or perhaps failing to be fully candid with federal investigators or with the grand jury.
But contrary to Kristol's assertion, there is little evidence to suggest that then-CIA director George Tenet requested that the DOJ investigate the alleged leak as a possible violation of the IIPA specifically. News of Tenet's referral first appeared in a September 26, 2003, MSNBC.com article, which reported that the "CIA has asked the Justice Department to investigate allegations that the White House broke federal laws by revealing the identity of one of its undercover employees." The article went on to state that the leak could have violated both the federal law protecting covert agents and the federal law prohibiting the disclosure of classified information:
NBC News' Andrea Mitchell reported Friday night that the CIA has asked the Justice Department to investigate whether White House officials blew Plame's cover in retaliation against Wilson. Revealing the identities of covert officials is a violation of two laws, the National Agents' Identity Act and the Unauthorized Release of Classified Information Act [apparent references to the IIPA and the 1917 Espionage Act, respectively].
And according to a "former government official" cited by investigative correspondent Michael Isikoff in the August 1 edition of Newsweek, the CIA's request never even mentioned the IIPA -- a claim that directly undermines Kristol's assertion:
Fitzgerald has been said to be investigating whether any aides violated the 1982 Intelligence Identities Protection Act --which makes it a felony to disclose the identity of a covert CIA employee: it requires showing the violator knew the agent's undercover status. [...] But the CIA's initial "crimes report" to the Justice Department requesting the leak probe never mentioned that law, says a former government official who requested anonymity because of the confidential material involved. Fitzgerald may be looking at other laws barring the disclosure of classified info or the possibility that current or former White House aides made false statements or obstructed justice.