The case of the outing of CIA agent Valerie Plame continues to defy logic and the imagination.
From the outside looking in, it appears that Special Counsel Patrick Fitzgerald is more intent on jailing two reporters -- including one who never wrote a story about Plame -- than anything else.
It would seem that Fitzgerald has had more than enough time to wrap this investigation up -- especially since he was given an hour with President Bush more than a year ago. And that came after the president made it perfectly clear that he was committed to seeing that justice was done in the case of a CIA agent who had her identity revealed by a newspaper columnist.
Plame was outed after her husband, Joseph Wilson, a State department employee, discredited Bush administration claims that then-Iraqi dictator Saddam Hussein was trying to buy the raw materials to refine uranium from Niger. Her CIA status was made public by columnist Robert Novak.
In the furor that erupted at the time, it was generally accepted that if someone outed a CIA agent, it would violate a 1982 law designed to protect our spies against exposure. But with time has come more insight into the law in question. Prosecutions under the law are rare because they require a showing that the leak was intentional and that the person leaking the information knew the government was trying to conceal it.
It appears that Fitzgerald's special prosecution may not even involve the clear violation of a federal law, at least not regarding the stories that were published about Plame.
In fact, for nearly a year, Fitzgerald has been training his heaviest guns not on the leaker (or leakers) or on Novak, who was the first to report the Plame story. Fitzgerald has been concentrating on putting Time magazine reporter Matt Cooper and New York Times reporter Judith Miller in jail for refusing to reveal their confidential sources.
Cooper wrote a story about Plame that was published after Novak's column, and last week his employer, Time Inc., buckled to Fitzgerald's demands and turned over records, notes and company e-mail traffic. Miller never wrote a story.
Nonetheless, Fitzgerald is urging a federal judge to send Cooper and Miller to jail if they continue to refuse to reveal their sources.
"Journalists are not entitled to promise complete confidentiality -- no one in America is," Fitzgerald wrote in court filings.
That's true enough (at least in federal courts and in the 19 states that don't have reporter shield laws). But it's also true that Fitzgerald violated the Justice department's own guidelines by going after Cooper's and Miller's confidential sources. That's supposed to be a tactic of last resort. Given that Fitzgerald has not sought sanctions against Novak, who first reported Plame's identity, it would seem that Novak has either cooperated with Fitzgerald or that he has not been pursued as aggressively as Cooper and Miller. In either case, seeking Cooper and Miller's sources wouldn't be the last resort.
The Rove connection
The case got somewhat more interesting with Times' providing its e-mails to the grand jury. It was widely reported that Karl Rove, deputy chief of staff to President Bush and the president's most trusted political adviser, was one of Cooper's sources.
Rove isn't talking. His lawyer issued a statement that acknowledged that Rove spoke with Cooper in the days leading up to the Plame story, but said that Rove did not identify Plame and did not disclose any confidential information about anybody.
We still don't see why President Bush couldn't have ended this controversy years ago. All he had to do was call Vice President Dick Cheney and a handful of top aides, including Rove, into the Oval Office and make it perfectly clear that if someone identified Plame to Novak, they went too far and that he wanted them to 'fess up right then and there.
The whole thing would have died with the resignation of the leaker and an apology from the White House.
The taxpayers would have been saved millions of dollars spent on yet another special prosecution and there would be no on-going assault on the legitimate interests of reporters to protect their confidential sources.