Hubris

by Michael Isikoff

  THE next day, two FBI agents and a Justice Department prosecutor interviewed Armitage in his office at Foggy Bottom. Taft sat in on the session. Armitage acknowledged that he had talked to Novak. But there were key details he said he could not recall. How had he first learned about Valerie Wilson? He wasn’t sure. What about the INR memo drafted in response to Libby’s request? Did Armitage realize that the information in this memo about Valerie Wilson had been designated secret? He hadn’t noticed that. Armitage was cooperating—but, some investigators thought, not explaining everything.

  There is a standard question FBI agents always ask at the end of interviews in criminal investigations: Is there anything else you think we should know? Armitage didn’t volunteer a pertinent fact: that he had previously passed the same information to Bob Woodward. (He later told colleagues he had forgotten this.)

  Armitage was due to be in Central Asia that day, as part of a previously scheduled trip that would take him to Tajikistan, Uzbekistan, and Kazakhstan before he headed to Afghanistan and Pakistan. But due to the leak investigation, he canceled the first part of the trip and removed the stops in Central Asia from his itinerary. State Department spokesman Richard Boucher told reporters that Armitage’s departure had been “delayed due to a very brief illness.”

  THE news on October 2 was unsettling for the White House on another front: David Kay was in town to provide closed-door briefings to the House and Senate intelligence committees on his interim findings.

  “We have not yet found stocks of weapons,” Kay said in a statement released by the CIA. His summary was devastating: his Iraq Survey Group had not “been able to corroborate the existence of a mobile BW production effort.”*68 He reported that Iraq’s chemical weapons stockpiles had apparently been destroyed after the first Persian Gulf War and that he’d found no evidence of any ongoing major nuclear program. He did note that the ISG had come across “dozens of WMD-related program activities,” including clandestine labs run by Iraqi intelligence (apparently for the production not of biological weapons but of poisons for use in assassination operations). Saddam, Kay said, had not given up his “aspirations and intentions” to acquire weapons of mass destruction in the future. But on every key prewar claim—a revived nuclear program, WMD-carrying unmanned drones, stockpiles of chemical and biological weapons—Kay had uncovered nothing.

  “I’m not pleased,” huffed Senator Pat Roberts, the Republican chairman of the Senate committee, after Kay testified. And Senator Jay Rockefeller, the senior Democrat on the committee, referring to the Bush administration, asked, “Did they mislead us, or did they simply get it wrong? Whatever the answer is, it’s not a good answer.”

  Kay’s interim report had created much discomfort at the CIA. During the two weeks he had spent preparing it, working out of an office at CIA headquarters, he had shared drafts with McLaughlin and Tenet. Neither was happy. Tenet challenged Kay on the absence of chemical stockpiles. McLaughlin, Kay recalled, resisted his conclusions that the aluminum tubes hadn’t been for a nuclear program and the trailers weren’t mobile biolabs. The CIA deputy director was getting complaints from the analysts at WINPAC, who were insisting Kay had it wrong. McLaughlin urged Kay not to say anything too definitive about the empty-handed weapons hunt. Kay disagreed. “I went there to find WMDs,” he later said, “and if I went up on the Hill and didn’t say that I hadn’t found any, all dialogue would be over.” He placed that fact high up in his testimony. “I knew the agency was going to be unhappy and disturbed by these conclusions,” Kay said. “But if anyone was disturbed, I was disturbed. I had thought there were WMDs. I was not just discomforting the CIA. I was discomforting myself.”*69

  After Kay was done with this round of hearings, Tenet and McLaughlin told him that they had received calls from White House officials asking why Kay had started out by saying weapons had yet to be found. Couldn’t that, they asked, have been buried?

  The day after the Kay report came out, a CBS News/New York Times poll reported that 53 percent of Americans believed the Iraq War was a mistake. Only a slight majority of 51 percent approved of Bush’s performance in office. The presidential election was thirteen months away.

  THE leak scandal was consuming much of the Washington media, but the editors and writers at Time had a distinct challenge. They realized the White House hadn’t been truthful. McClellan had said Rove wasn’t involved. Yet Cooper, Dickerson, Michael Duffy, the bureau chief, and others at the newsmagazine knew Rove had tipped off Cooper that “Wilson’s wife” worked at the CIA. They were aware that Libby had confirmed it. (Novak, of course, also knew that the White House denials about Rove were untrue.)

  The newsmagazine pulled together a cover story about the leak case. It delicately danced around the issue of its own role. The story quoted McClellan as denying the Rove allegation: “There is simply no truth to that suggestion.” But the story offered no rebuttal from its own correspondents or editors. Rove and Libby hadn’t spoken on the record; the magazine felt it had to respect their confidences. Duffy, who authored the cover story based on reporting from Cooper, Dickerson, and eight other correspondents, later said that there had been no discussion within the magazine about whether it should have challenged McClellan’s denials based on what he and the magazine’s reporters knew. Nor did they talk about whether Cooper and others should have called Rove and pressured him to correct McClellan’s denials. “I don’t think it occurred to me,” Duffy said. “This is one of those rare situations where I didn’t tell the reader everything we knew because we thought there was a higher journalistic principle involved.” But Duffy’s story did hint at the dilemma the magazine’s reporters faced: “any reporter who might have learned Plame’s name in a leak is duty bound to shut up about it, even to federal investigators, if the situation comes to that.” The story foreshad-owed the fight ahead: “The ultimate irony is that the Administration may now be depending on journalists’ rectitude. In the prelude to and particularly in the aftermath of the war, Bush’s aides at times questioned the patriotism of the press; that some of those officials may now be depending on the silence of the media in the face of a national-security investigation made some Bush allies uncomfortable.” That is, Rove and Libby were relying upon Matt Cooper and his colleagues and editors at Time.

  About this time, Libby, apparently worried that McClellan hadn’t sufficiently protected him and the vice president’s office as much as he had Rove, sent the White House press secretary talking points. They were practically a script: “I’ve talked to Libby. I said it was ridiculous about Karl. And it is ridiculous about Libby.” McClellan adopted Libby’s spin. The day after the Time story appeared, he told the White House press corps that he had spoken to Rove, Libby, and NSC aide Elliott Abrams and that each had categorically denied they had leaked information on Valerie Wilson. That day, Bush remarked to reporters, “I have no idea whether we’ll find out who the leaker is—partially because, in all due respect to your profession, you do a very good job of protecting the leakers.”

  HOW much could the White House count on the reporters to keep silent? Protecting confidential sources is a fundamental tenet for professional journalists. There is often no other way for a reporter to pry loose essential information (particularly concerning national security matters) than by assuring an informed source that his or her identity won’t be disclosed. But the practice can also be overused. Sources granted anonymity are free to push their own agendas and vendettas—to use reporters as much as reporters use them.

  The legal rights journalists had to protect their sources, especially during a federal criminal investigation, were shaky. And the Justice Department, prodded by the White House, was becoming increasingly aggressive in mounting leak investigations. In the past, department officials had been reluctant to subpoena journalists, but the rules were changing. Prosecutors and FBI agents assigned to recent leak cases had grumbled: Why shouldn’t we subpoena reporters and force them to testify? What makes the reporter-source relationsh
ip sacred?

  Veteran FBI agent Jack Eckenrode was looking to change the playing field. A dogged investigator who reminded some of the Tommy Lee Jones character in The Fugitive, Eckenrode was accustomed to chasing after sensitive targets. In the late 1990s, he had spearheaded an investigation probing Clinton White House fund-raising that had led to the convictions of some of the president’s dubious fund-raisers. In the summer of 2002, the FBI brass assigned Eckenrode to another dicey case: the leak of a National Security Agency intercept that had exposed an egregious intelligence community mistake related to 9/11.

  On September 10, 2001, the electronic eavesdropping machines of the NSA captured a conversation between two al-Qaeda operatives that contained two chilling phrases: “Tomorrow is zero hour” and “The match begins tomorrow.” The conversation wasn’t translated by NSA until two days later—after the attacks. In a private hearing on June 19, 2002, Michael Hayden, then the NSA director, had briefed the Senate and House intelligence committees on this snafu. Hours after his testimony, CNN’s David Ensor broadcast a report disclosing the contents of the intercept; other news outlets produced their own reports. The leak embarrassed—and infuriated—the White House.

  Cheney called Senator Bob Graham, who was chairing the intelligence committee, and threatened him: if the intelligence committees didn’t put a stop to such leaks, the White House would cut off cooperation with the committee’s inquiry into pre-9/11 failures (a probe the White House had never been enthusiastic about). Graham asked the FBI to investigate, and Eckenrode was put in charge.

  The FBI and federal prosecutors soon had a primary suspect: Senator Richard Shelby of Alabama, the ranking Republican on the intelligence committee. But to make a case, Eckenrode and other investigators concluded, they would have to question reporters who had talked to the senator—and haul them before a federal grand jury if they refused to testify.

  When Eckenrode asked his superiors for permission to subpoena the reporters, he met with stiff resistance. At a tense meeting at Justice Department headquarters, Michael Chertoff, then the assistant attorney general in charge of the criminal division, told Eckenrode that the FBI agent and his colleagues didn’t understand the broader “policy implications” of taking this step, according to law enforcement sources familiar with the investigation. Chertoff was sticking to established Justice Department guidelines: federal prosecutors were authorized only to subpoena members of the news media as a last resort. But members of Eckenrode’s FBI team wondered if Chertoff’s boss, Ashcroft, a former Republican senator, was derailing a probe that might incriminate one of his old GOP colleagues. Eckenrode wrote a long, impassioned letter to senior Justice officials, arguing it made no sense to conduct leak investigations if the department was unwilling to use all the tools available. His point—shared by federal prosecutors assigned to the case—was, If you want us to conduct these sorts of inquiries, let us do our job. If not, don’t waste our time.

  Eckenrode and the prosecutors never got the green light to go after reporters in the NSA case, and that investigation (like many leak probes) fizzled out. But in the fall of 2003, Eckenrode’s boss told him he had another big case to add to his workload: the CIA leak. A week or so later, FBI Director Robert Mueller popped his head into Eckenrode’s office to offer encouragement. “Take it wherever it goes,” Mueller told him.

  Eckenrode had every intention of doing just that.

  ONE of Eckenrode’s first steps was to contact the man responsible for the disclosure of the leak: Robert Novak. He asked to interview the columnist. By now, Novak had hired James Hamilton, a well-known Washington criminal defense attorney, and Hamilton had advised Novak that there’d be no legal basis for refusing to cooperate with the investigation if he were subpoenaed by the grand jury. Saying no to a grand jury could subject the columnist to imprisonment and steep legal costs—that he would have to pay largely out of his own pocket.

  On October 5, 2003, Novak appeared on Meet the Press and declared, “I will not give up the source.” He added, “If I were to give up that name, I would leave journalism.” But he didn’t say that he was about to meet with the FBI. Two days later, Eckenrode and two colleagues showed up at the offices of the Swidler Berlin law firm, where Hamilton worked, to question Novak there.

  Years later Novak wrote that he did not reveal his sources to the FBI at this meeting. But Eckenrode (thanks to Taft’s phone call to the Justice Department) already had a pretty good idea of the identity of Novak’s chief source: Richard Armitage. He didn’t need Novak to give up the name. At this early stage of the probe, he wasn’t ready to press the issue. Novak later recounted that he did “disclose how Valerie Wilson’s role was reported to me”—without mentioning any names.

  After the FBI interview, neither Novak nor Hamilton said anything publicly about the meeting. And for the next three years, neither would disclose that Novak was cooperating with the leak investigation—leaving journalists, lawyers, and others following the case to wonder what Novak was up to.

  THREE days later, Eckenrode questioned Novak’s other source, Karl Rove, who had hired a criminal defense lawyer named Robert Luskin. (A former Justice Department prosecutor and Democrat, Luskin was a law partner of Rove’s friend and Bush campaign lawyer Ben Ginsberg.) In his interview with the FBI, Rove acknowledged that he had told Novak he had “heard” Wilson’s wife worked at the CIA, a source familiar with his account later told reporters.

  The FBI had obtained Rove’s phone records showing that he had talked to Novak days after news of the leak investigation broke. This had given the investigators reason to wonder whether the columnist and his old source were colluding. Rove acknowledged the two had spoken but said that nothing untoward had happened.

  It was barely two weeks into the investigation, and the FBI essentially knew the identity of the senior administration officials in Novak’s column. But discovering their names and making a criminal case were two different things. The FBI would have to show that the leakers had divulged classified information they had received through official channels. But Rove said to Eckenrode that he couldn’t remember where and from whom he had first heard about Wilson’s wife. And the subject of Rove’s phone conversation with Matt Cooper of Time didn’t come up.

  Four days after that, on October 14, Eckenrode interviewed Scooter Libby. Unlike Rove, Libby didn’t say he couldn’t remember how he had first heard about Valerie Wilson. He offered the FBI a specific recollection. The vice president’s chief of staff said it had been Tim Russert of NBC News—in that July 10, 2003, phone call—who had told him Wilson’s wife worked for the CIA. Libby didn’t mention to Eckenrode all that had come before that conversation: his gathering of information on the Wilsons, the INR memo commissioned for him that referred to Valerie Wilson, his discussion with Cheney about Valerie Wilson (in which the vice president had said she worked in the Counterproliferation Division of the CIA’s operations directorate). Libby told Eckenrode that Russert had said “all the reporters knew” about Valerie Wilson and that he (Libby) had expressed surprise at this news. Libby also confirmed that he had spoken to Matt Cooper two days later on July 12. But he claimed he had merely told Cooper that reporters were telling the administration Wilson’s wife worked at the CIA, and that he didn’t know if that was true.

  This was Libby’s defense. He hadn’t disclosed any classified information and hadn’t violated the Intelligence Identities Protection Act because he hadn’t really known anything about Valerie Wilson’s employment at the CIA. He had only picked up some unofficial scuttlebutt from Russert and then had passed it on to Cooper without vouching for the information. Under the Intelligence Identities Protection Act, it was a crime to disclose an undercover CIA officer’s identity only if the leaking government official had “authorized access” to classified information about the officer and realized that the officer was a covert employee. If Libby had merely conveyed an unconfirmed tip he had received from a reporter—as opposed to disclosing information he had offici
ally obtained—he wouldn’t be covered by the act. And if he had not known for sure that Valerie Wilson was an undercover employee, he would not have broken the law. Moreover, with this account, Libby was keeping Cheney out of the picture. In Libby’s telling, Cheney was not a party to any plot to assail a critic.

  But at this point Libby’s defense already had one big potential flaw. He had identified two specific reporters with whom he had spoken—Russert and Cooper. Yet both men remembered their conversations with Libby differently. If they talked, he would be in trouble.

  WITH the hunt for weapons in Iraq a dud, administration officials were playing up other rationales for the war. In late October, Undersecretary of Defense Douglas Feith sent the Senate intelligence committee a classified report entitled “Summary of Body of Intelligence on Iraq–al Qaeda Contacts.” The memo, recapping the work of the intelligence cell Feith had set up before the war, cited fifty examples of purported contacts between Saddam’s regime and bin Laden’s murderous outfit (many of which had already been discounted or dismissed by intelligence analysts). It rehashed the Atta-in-Prague allegation and al-Libi’s claims about poisons training. Within two weeks, the Feith report was leaked to the neoconservative Weekly Standard, and Stephen Hayes, a correspondent for the magazine, published a cover story entitled “Case Closed: The U.S. Government’s Secret Memo Detailing Cooperation Between Saddam Hussein and Osama bin Laden.” The piece, which received much media attention, quoted the Feith memo extensively and concluded forcefully, “There can no longer be any serious argument about whether Saddam Hussein’s Iraq worked with Osama bin Laden and al Qaeda to plot against Americans.” The hawks couldn’t claim there were weapons when none had yet been found, but they could at least argue that a clear-eyed reading of assorted intelligence fragments revealed that bin Laden and Saddam had been thick as thieves—and, weapons aside, that would be enough to justify the war.