Difference Between Classified and Secret At Heart of Libby Trial

WASHINGTON - Feb. 5, 2007— -- In government, there's often a conflict between what can be aired publicly and what should be kept under wraps. There is no doubt about the value of keeping secret the movement of military forces in wartime. There is plenty of information that should be released, yet is jealously guarded by government officials. Sunshine laws and the Freedom of Information Act are designed to counter too much secrecy.

Secrecy and the lack of it are at the heart of the perjury and obstruction trial of former White House aide Lewis 'Scooter' Libby. The case has its origins in allegations that the Bush Administration twisted intelligence data to justify a pre-emptive war with Iraq. The prosecution believes there was a concerted effort to discredit the war critic by unmasking his CIA wife.

There is no dispute at the Libby trial that Valerie Plame's CIA identity was CLASSIFIED information. It was the CIA that officially requested a Justice Department investigation of who leaked her name to reporters, a possible violation of the Intelligence Identities Protection Act of 1982. But no one has been charged with violating that law, which carries a maximum penalty of 10 years in prison and a 50-thousand dollar fine.

Documents in the case and testimony at the trial show a number of top administration officials discussed Valerie Plame with reporters. Former State Department official Richard Armitage, former White House spokesman Ari Fleischer, Karl Rove, and Scooter Libby, among them. An FBI agent also testified that Libby said it's possible he and Vice President Dick Cheney discussed leaking Plame's name to journalists. It was such an incendiary topic, former Time Magazine reporter Matthew Cooper told his bureau chief the information should be considered "double super secret background."

Simply discussing an undercover operative is not enough to violate the law. You have to know the agent in question is covert and the government is taking steps to conceal the person's identity, and the disclosure must be intentional. So after a more than three year long investigation, Special Counsel Patrick Fitzgerald has only charged Scooter Libby with lying and trying to obstruct his leak investigation. When he announced the indictment, Fitzgerald compared the offense to someone kicking sand into an umpire's eyes.