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.

It is possible that Libby and other officials violated an agreement all federal employees are required to sign before they are given access to sensitive national security data. It's the standard classified information nondisclosure agreement. That document recognizes that "special confidence and trust shall be placed in me by the United States Government."

The signatory (employee who signs the agreement) must acknowledge receiving a briefing on the nature and protection of classified information and a warning that any unauthorized disclosure or "negligent handling of classified information" could cause "irreparable injury to the United States." The agreement also says if the employee is uncertain about the classification status of information, he or she is required to confirm the information is unclassified before disclosing it. Any violation of the nondisclosure agreement can result in termination of security clearances, removal from a particular position, or firing.

The prosecution suggests this may be one reason why Libby lied to the FBI and a grand jury about his discussions with reporters. He may have feared loss of his clearance, which could have cost him his job of National Security Adviser to the Vice President.

And when the scandal was breaking, President Bush said anyone in his administration who leaked classified information would no longer work for his administration.