October 2, 2003

Investigating Leaks

Attorney General John Ashcroft has put himself and the president in a very dangerous position with his handling of the Justice Department's investigation into how Robert Novak got the name of a C.I.A. operative for publication in his syndicated column.

After career lawyers conducted a preliminary investigation into the leaking of the officer's name, Mr. Ashcroft chose to proceed with a full investigation within the Justice Department. He did so despite department guidelines that would have permitted him to appoint an outsider, who would serve at Mr. Ashcroft's discretion but could make independent decisions.

Instead, Mr. Ashcroft has decided to leave the investigation under the authority of the department's counterespionage office. That office employs career lawyers who routinely investigate this sort of leak and have the security clearances to do so with dispatch. Still, Mr. Ashcroft has chosen a risky course. He has to allow his lawyers to conduct their work unfettered. Mr. Bush has promised full cooperation. Any hint of political interference by Mr. Ashcroft or obstructionism from the White House would be disastrous and would leave the president and his aides at the mercy of Congressional Democrats, who would surely respond swiftly and angrily.

So far, some of the White House's actions are not very reassuring, including the 11-hour lag between the time the Justice Department notified the White House that it was under investigation and the time the White House ordered its staff to preserve records. The F.B.I. has also chosen to take its part of the investigation out of the hands of the Washington field office, which would normally handle it, and keep it within the headquarters staff.

The leak investigation has already prompted calls from Democrats in Congress to re-enact the lapsed special prosecutor law, under which a judicial panel can appoint an independent investigator who cannot be fired by the attorney general. While this page has strongly supported that law, we have seen how tangled up an administration can get under the unrestricted power of an independent counsel, like the meandering Kenneth Starr during the Clinton administration. We do not believe that this case merits having Congress reopen now the issue of possibly resurrecting that law, an effort that would only lead to partisan fistfights and would delay an investigation that should proceed swiftly.

The law under which the Justice Department is operating prohibits the naming of an undercover intelligence operative — in this case, the wife of Joseph Wilson IV, a retired career diplomat. Mr. Wilson wrote an Op-Ed article for The Times, published on July 6, that said he had investigated Saddam Hussein's nuclear ambitions at the request of the C.I.A. He wrote that he believed the Bush administration had misrepresented intelligence when it asserted that Mr. Hussein had tried to buy uranium from Niger, in Africa, to foster a nuclear weapons program. Mr. Novak identified Mr. Wilson's wife in his column on July 14 and said administration officials had told him that she had suggested sending Mr. Wilson to investigate the Niger story. The administration was ultimately forced to admit that the information about Niger was wrong.

As members of a profession that relies heavily on the willingness of government officials to defy their bosses and give the public vital information, we oppose "leak investigations" in principle. But that does not mean there can never be a circumstance in which leaks are wrong — the disclosure of troop movements in wartime is a clear example.

There are important First Amendment issues at play. But in writing this law, Congress specifically barred prosecuting a journalist who got the name of a covert operative from a government official. Consistent with that, the Bush administration should not use the serious purpose of this inquiry to turn it into an investigation of Mr. Novak or any other journalist, or to attempt to compel any journalists to reveal their sources. The Justice Department should focus its attention on the White House, not on journalists.

If someone at the White House, perhaps acting with institutional sanction, revealed the name of a C.I.A. operative to undermine the credibility of Mr. Wilson and thus stifle dissent over Iraq policy, that in itself would be a serious assault on free speech and an egregious abuse of power. In such a case, the blanket denial that Mr. Bush issued this week would put him dangerously close to the territory in which the cover-up eclipses the offense.


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