DOCUMENTATION
Appeals Court Opinion
On Valerie Plame Leak
These are excerpts from previously redacted pages of the Feb. 15, 2005 concurring opinion written by Judge David Tatel of the U.S. Court of Appeals for the District of Columbia Circuit. At issue was whether New York Times reporter Judith Miller and other reporters could be held in contempt of court for refusing to testify to the grand jury investigating the illegal disclosure of the identity of CIA covert operative Valerie Plame. We have omitted citations to the court record, which largely pertain to submissions to the Federal District Court by special counsel Patrick Fitzgerald.
[With respect to Miller,] the special counsel seeks evidence regarding two exchanges with I. Lewis "Scooter" Libby, Vice President Cheney's Chief of Staff and National Security Adviser: first, an in-person meeting in Washington, D.C. on July 8, 2003, and second, a telephone conversation on July 12, 2003. Before the grand jury, Libby testified that although he had previously learned about Wilson's wife's employment, he had forgotten it by July 8, and recalled no discussion of Wilson during his meeting with Miller. As to the July 12 conversation, Libby stated, "I said to her that, that I didn't know if it was true, but that reporters had told us that the ambassador's wife works at the CIA, that I didn't know anything about it." Because other testimony and evidence raises doubts about Libby's claims, the special counsel believes Miller's testimony is "essential to determining whether Libby is guilty of crimes, including perjury, false statements and the improper disclosure of national defense information."
The special counsel's argument is persuasive. As Libby admits, in mid-June 2003, when reports first appeared about the Niger trip, the Vice President informed Libby "in an off sort of curiosity sort of fashion" that the Niger envoy's wife worked at the CIA's counterproliferation division. In addition, handwritten notes by Libby's CIA briefer indicate that Libby referred to "Joe Wilson" and "Valerie Wilson" in a conversation on June 14. Nevertheless, Libby maintains that he believed he was learning about Wilson's wife's identity for the first time when he spoke with NBC Washington Bureau Chief Tim Russert on July 10 or 11 regarding coverage of the Niger issue by MSNBC correspondent Chris Matthews....
Also contrary to Libby's testimony, it appears that Libby discussed Plame's employment on several occasions before July 10. For example, then-White House Press Secretary Ari Fleischer recalls that over lunch on July 7, the day before Libby's meeting with Miller, Libby told him, "[T]he Vice-President did not send Ambassador Wilson to Niger ... the CIA sent Ambassador Wilson to Niger.... [H]e was sent by his wife.... [S]he works in ... the Counterproliferation area of the CIA." Describing the lunch as "kind of weird" and noting that Libby typically "operated in a very closed-lip fashion," Fleischer recalled that Libby "added something along the lines of, you know, this is hush-hush, nobody knows about this. This is on the q.t." Though Libby remembers the lunch meeting, and even says he thanked Fleischer for making a statement about the Niger issue, he denies discussing Wilson's wife....
As to the leaks' harmfulness, although the record omits specifics about Plame's work, it appears to confirm, as alleged in the public record and reported in the press, that she worked for the CIA in some unusual capacity relating to counterproliferation.... [T]he special counsel refers to Plame as "a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years"—representations I trust the special counsel would not make without support. In addition, Libby said that Plame worked in the CIA's counterproliferation division....
Most telling of all, Harlow, the CIA spokesperson, though confirming Plame's employment, asked Novak to withhold her name, stating that "although it is very unlikely that she will ever be on another overseas mission ... it might be embarrassing if she goes on foreign travel on her own," a statement that strongly implies Plame was covert at least at some point....
Insofar as false testimony may have impaired the special counsel's identification of culprits, perjury in this context is itself a crime with national security implications....
