Representative Henry Waxman (D-CA) today raised the question of whether White House advisor Karl Rove violated the Classified Information Nondisclosure Agreement (NDA) Rove and other administration recipients of classified information are required to sign as a condition of employment.
After first denying that Rove had anything to do with the identification of former amabassador Joe Wilson’s wife to reporters as a CIA operative, Rove’s attorney has since admitted that Rove revealed her identity to Time Magazine reporter Matt Cooper, and today told reporters at the New York Times and Washington Post that Rove had learned her identity from another reporter — Rove “does not recall” who — and confirmed her identity to columnist Bob Novak, who first published her name and occupation, three days before talking with Cooper.
For those not following along with a scorecard, the evolving Rove account of his involvement looks something like this: Rove first adamantly denied being involved with the leak of Valerie Plame’s identity, assuring White House press secretary Scott McClellan at the beginning of the investigation that he was not involved, a position the White House maintained for two years.
Then Rove’s attorney, Robert Luskin, announced in response to revelations that Rove had been a source for Time’s Cooper that Rove “did not tell any reporter that Valerie Plame worked for the CIA.” That claim expired when a Cooper email saying Rove told Cooper that Joe Wilson’s wife worked at the CIA put the lie to it.
Luskin then announced that Rove had not knowingly disclosed any classified information, something that if true paints Rove as either too stupid or too irresponsible to check on Plame’s status.
One legal wag suggests that Rove may be looking forward to winning any case against him on appeal by claiming that his attorney was insane.
What Waxman points out is that under the terms of the NDA Rove and every other White House official will have signed, he had an affirmative obligation to make certain not only that he wasn’t leaking classified information, but also that he wasn’t confirming it, as his attorney now anonymously says he did with Bob Novak. (And the White House has a legal obligation to impose sanctions on anyone who violates the agreement.)
Where Rove got the information is irrelevant to the agreement; whether it came from a reporter or was revealed to him in a dream, he still had an obligation to make sure the information wasn’t classified before passing it on to anyone else. From the brochure providing guidance on the NDA:
Question 19: If information that a signer of the SF 312 knows to have been classified appears in a public source, for example, in a newspaper article, may the signer assume that the information has been declassified and disseminate it elsewhere?
Answer: No. Information remains classified until it has been officially declassified. Its disclosure in a public source does not declassify the information. Of course, merely quoting the public source in the abstract is not a second unauthorized disclosure. However, before disseminating the information elsewhere or confirming the accuracy of what appears in the public source, the signer of the SF 312 must confirm through an authorized official that the information has, in fact, been declassified. If it has not, further dissemination of the information or confirmation of its accuracy is also an unauthorized disclosure.
“Well,” Rove supporters will say behind a sigh of relief, “case closed. Karl didn’t know it was classified.”
Unfortunately, Rove was also required to make sure that information wasn’t classified. From the agreement:
3. I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation. I hereby agree that I will never divulge classified information to anyone unless: (a) I have officially verified that the recipient has been properly authorized by the United States Government to receive it; or (b) I have been given prior written notice of authorization from the United States Government Department or Agency (hereinafter Department or Agency) responsible for the classification of the information or last granting me a security clearance that such disclosure is permitted. I understand that if I am uncertain about the classification status of information, I am required to confirm from an authorized official that the information is unclassified before I may disclose it, except to a person as provided in (a) or (b), above. I further understand that I am obligated to comply with laws and regulations that prohibit the unauthorized disclosure of classified information.
So now, Rove is in the position of having to argue, with respect to his NDA, that he was certain Valerie Plame’s occupation was unclassified, something he could hardly be without having checked on it.
“Well,” Rove supporters might say, “maybe it just never occurred to him.”
Unfortunately, NDA violations include negligence: “(1) any knowing, willful or negligent action that could reasonably be expected to result in an unauthorized disclosure of classified information …”
“Well,” Rove supporters might say, “maybe Plame’s identity and occupation weren’t classified.”
Possibly so. In which case Rove is off the hook with respect to the NDA, and a federal prosecutor not known for excessive displays of whimsy has spent going on two years investigating nothing and attempting to throw reporters in jail for getting in his way.
Rove aside, let us not forget that there are alleged to be two White House officials involved in the leak, and so far we’ve heard from only one of them, albeit in such an entertaining manner as to make it seem like a whole host. And although the excuse of the day is that Rove got the dish from reporters (or a reporter), the reporter or reporters must themselves have gotten the information from somewhere. And then there’s the Third Man, the one who blew the whistle on the first two.
A former prosecuting attorney told us years ago that a woman scorned has nothing on a prosecutor scorned (unless the woman in question is a scorned prosecutor who’s just been jilted), and a prosecutor scorned tends to explore every conceivable avenue toward a conviction.
Judging from Fitzgerald’s few public utterances, he’s feeling pretty scorned.