I was appalled as I watched copies of page after page of calls that I had made or received turned over to Fitzgerald. The logs contained hundreds of calls that Phil and I had made before our story ran. The media paid little attention to this case compared with the ink and airtime they devoted to the Plame investigation and Scooter Libby. That was unfortunate. For Fitzgerald’s seizure of our telephone records turned out to be a far more important bellwether of the challenge that journalists would soon face from a cyber-wise, techno-savvy government intent on plugging national security leaks.
Despite access to our phone logs, Fitzgerald was apparently unable to identify our sources. Perhaps he did so, but no one was ever charged with disclosing classified information in his inquiry, and none of our sources told us that they had been asked about their discussions with us. Phil and I managed to protect our sources because Jeff Gerth, my friend and colleague with whom I had collaborated on sensitive investigative stories, had drilled into his friends the importance of taking defensive measures to protect our sources. While I initially felt silly, and even a bit paranoid, using unregistered cell phones to call sensitive sources and acting like an amateur drug dealer, Jeff was right. With the government ever more able and willing to inspect journalists’ phone calls and emails to identify their sources, such precautions were becoming essential tradecraft.
Nor did the story we wrote in the summer of 2001 cripple the government’s effort to move against the charities or thwart terrorism, as Fitzgerald claimed. The Holy Land Foundation and several of its officers were eventually convicted of having provided material support for terrorism. The Global Relief Foundation remained closed, and the Treasury Department’s seizure of its assets stuck, despite a libel suit it filed against the Times and other papers for having published the government’s charges, as well as a lawsuit challenging the government’s designation of the charity as linked to terrorism.
* * *
In January 2007 the long-awaited trial of Scooter Libby began. Antiwar activists and other administration critics confidently predicted that the trial would prove that there had been a White House conspiracy to expose Plame’s CIA job. The public disclosure in 2006 that the original source of the leak was Richard Armitage, the deputy secretary of state, Colin Powell’s alter ego, and a skeptic of the war, had jolted antiwar critics. By the time the trial began, so much was known about intelligence failures and the Plame case that the trial was an anticlimax.
Fitzgerald had known since his appointment in December 2003 that Armitage was the source of the Plame leak to Bob Novak. He had also known that the leak—apparently aimed at protecting the State Department from blame for the Wilson mess and the faulty WMD estimates—had been confirmed by Bill Harlow, the CIA’s spokesman. Neither was a neocon. The only senior official involved in this supposedly White House–orchestrated plot was Karl Rove, Bush’s political adviser. But since he had acknowledged having done little but confirm what Novak had heard from Armitage and Harlow, he had not been indicted. So the alleged White House scheme was a conspiracy of one: Scooter Libby, who was charged not with leaking Plame’s identity, but with lying to federal officials about what he had said to two other reporters and me. No one was ever charged with the leak.
I was one of ten journalists among nineteen witnesses to testify at the trial. Most of the other journalists—Bob Woodward, Glenn Kessler, and Walter Pincus from the Washington Post; David Sanger of the Times; and Bob Novak—swore that Libby had never mentioned Plame or her CIA job. I was the only reporter to state that Libby had discussed Wilson’s wife. So my testimony, Fitzgerald said in his closing arguments, was crucial to the case against Libby. It was also crucial to Fitzgerald’s assertion that the vice president had been involved, since Libby had told the grand jury that Cheney had approved his suggestion that he discuss the intelligence estimate about Iraq and WMD with me.
At the same time, I testified that I did not recall Libby’s having mentioned Plame’s name, the fact that her job was secret, or that she had helped send her husband to Niger for the CIA. Although I testified that my notes and memories of our conversations were often sketchy, Fitzgerald endorsed my memory of our conversations over Libby’s.
Two other journalists were key to Fitzgerald’s case. Matt Cooper, who by then had left Time, testified that Karl Rove had first told him that Wilson’s wife worked at the CIA and may have helped send him to Niger. When Cooper had asked Libby whether he, too, had heard that, Libby had responded, “Yeah, I’ve heard that, too,” Cooper quoted Libby as saying.4 Tim Russert, NBC’s Washington bureau chief, said that Plame had not come up in his conversation with Libby, and that he had not told Libby about Plame’s job and role in Wilson’s trip, as Libby recalled.
Both Fitzgerald and my lawyers instructed me not to follow news accounts of the trial or what other witnesses were saying, lest it influence my testimony. I complied. Only later did my lawyers tell me that Judge Reggie B. Walton ruled there was no evidence that Libby had lied about the last of our three discussions and dismissed the prosecution’s charges that we had discussed Plame in a telephone conversation on July 12, 2003.
In March 2007, after deliberating for ten days, the eleven jury members convicted Libby on four counts of making false statements to the FBI, lying to a grand jury, and obstructing justice. They acquitted him on one count: lying to the FBI about his conversation with Matt Cooper.
In June, Judge Walton sentenced Libby, the most senior White House official to be convicted of a felony since the Iran-contra scandal twenty years earlier, to thirty months in prison and a fine of $250,000. He was spared jail when President Bush, at the last possible minute, voided his prison term and commuted his sentence.5 But to Dick Cheney’s enduring fury, Libby did not receive one of the twenty-nine pardons that the president issued shortly before leaving office, in December 2008. I had expected Bush to pardon Libby. If he didn’t, I had expected Libby to appeal the verdict. But Libby had told friends that an appeal would be too hard on his family, financially onerous, and would prevent him from moving on with his life.
The day after Libby’s lawyers announced that he was dropping his appeal, Bill Safire called me. I had to write my own account of the ordeal— “Now!” he ordered. Bill knew that I was determined not to write anything that could be subpoenaed for another trial. Still, I hesitated. Reviewing my emails, memos, and notes about the Times, my months in jail, and my trial testimony was painful. I might have abandoned the project had it not been for a chance encounter with Libby at a national security conference in Israel in 2010.
We had not spoken since 2003, and when he saw me enter the hall, he gave me a decidedly chilly look and did not approach me. I couldn’t blame him. We had barely known each other before our meetings in the summer of 2003 became the talk of Washington and ammunition in Fitzgerald’s hands. Our “entanglement,” as Keller had first called it, had consisted of two interviews, one telephone call, and a chance two-minute encounter with my husband and me at a rodeo in Jackson, Wyoming.
After most guests had left the hall, I asked Libby how he was doing. I told him, neutrally, that I regretted how things had turned out. We spoke briefly about our lives since the trial. I did not mention jail. He seemed cautious. Before leaving, he asked whether I had read Valerie Plame’s memoir, which had been published soon after his trial in 2007. No, I hadn’t, I confessed. In fact, I had read little about those troubled times; I had no wish to do so.
He suggested that I might find something of interest.
A few months later, I read Fair Game. Though I had occasionally encountered Joe Wilson at social events before the trial, I had never met his wife.
Libby was right. The book was certainly of interest. In addition to Bush, Cheney, and Libby, Plame was also furious at the CIA, which she accused of having failed to protect her family after her “outing.”6 Her account of how the Bush administration’s campaign had ended her career and nearly ruined her marriage sold well and became a Hollywood movie starring Sean
Penn as Wilson and Naomi Watts as Plame. She expressed regret about letting Vanity Fair photograph her in secret spy gear—a Hermès head scarf and large, dark sunglasses—seated alongside her husband in his Jaguar convertible. When the photo spread hit newsstands in January 2004, she complained that the right had denounced her “publicity stunt” and “self-promotion” and what Rove called the Wilsons’ unmasking as “vain, arrogant celebrity wannabes.” She attributed her lapse in judgment, which she acknowledged had embarrassed the CIA and even her supporters, to one of those “what the hell” moments after having been “beaten down.”
Of most interest to me in Plame’s book was the revelation that while working overseas for the CIA, Plame’s cover were jobs at the State Department. The CIA is organized by offices within divisions—such as the counterproliferation division of the Directorate of Operations, in which Agent Plame worked. But the State Department is divided into functional offices and regional and other “bureaus”: the Bureau of European Affairs, the Bureau of Consular Affairs. Both, I was learning, had served as her cover.
That Plame had worked for a State Department bureau as cover stopped me cold. I found the notebook in which I had recorded my initial conversation with Libby on June 23, 2003. On page 1, I had written “Scooter Libby—uranium.” On page 26, well before my interview with Libby, I had written Joe Wilson’s name and phone number. It was underlined four times. My notes with Libby did not begin until page 33. My first question to Libby involved the NIE: “Was the intell slanted?” A page and a half later, in the midst of our discussion of the NIE and Iraq’s reported efforts to acquire uranium, was a note in parentheses: “(wife works in Bureau?).”
I remembered what I had learned after the trial: that Libby had consistently told the FBI in October and September 2003, and a grand jury in March 2004, that Cheney had told him sometime before June 11, 2003, that Plame worked at the CIA. If Libby, a seasoned bureaucrat, had been trying to plant her employer with me at our first meeting in June, he would not have used the word Bureau to describe where Plame worked. But a source who thought that she really worked at the State Department might have described her job that way. A terrible thought raced through me: Contrary to my testimony, had someone else told me that Plame worked at the State Department before my meeting with Libby? Someone who may have given me Wilson’s telephone number? Had I written Bureau between parentheses to ask Libby about her job that day?
I searched for the notes of my conversations with Fitzgerald before my testimony. He had asked me several times: What did Libby mean when he said “Bureau”? Did he mean the FBI? No, I had replied. While I normally used the word Bureau to refer to the FBI, Libby and I had been discussing the CIA and its faulty intelligence estimates.
I called William Jeffress, Libby’s lawyer. Had Libby known that Plame had used the State Department as official cover? I asked him. No, Jeffress replied. Although Libby’s lawyers had requested information about Plame’s status and job, including the nature of her cover, Fitzgerald had refused to provide it. Her status wasn’t relevant, the prosecutor claimed, which Judge Walton had upheld. So no one on Libby’s defense team had learned about Plame’s State Department cover until they, too, had read her memoir after Libby’s conviction.7 “But Fitzgerald clearly knew,” Jeffress said. “I could have made good use of that.”
Prosecutors are required to provide potentially exculpatory information to defendants and witnesses who testify against them. Fitzgerald surely knew about Plame’s cover at a State Department bureau when we discussed and rehearsed my testimony about that word before the trial.
Reading Plame’s book had put my reference to that word—in parentheses and with a question mark—in a new light. Libby probably hadn’t used it, or talked about Plame with me that day. But someone else had, perhaps one of the twenty or more nonproliferation experts I routinely spoke to at the State Department, the Pentagon, and other government agencies who dealt with Foggy Bottom’s many bureaus. I thought hard. I still could not remember when and from whom I had first learned that Wilson had a wife at the CIA. But since Cheney had already told Libby that Plame worked in the CIA’s nonproliferation office that had sent Wilson to Africa by the time Libby and I first met, Libby had probably not been the source of my reference to his wife’s work for a bureau.
My testimony, though sworn honestly, might have been wrong.
I had always been troubled, as I had warned Fitzgerald, about my having surrounded that phrase with parentheses and a question mark. The format itself—my use of parentheses or, more often, brackets to reflect information I had already learned—suggested that I had intended to pursue the issue with Libby that day, rather than a reference to something that Libby and I had discussed. It may not even have struck me initially as all that important. I hadn’t said anything about what would have been an intriguing tip to Jill Abramson the day after my initial meeting with Libby. If we had discussed Plame or her work, wouldn’t I have mentioned it to her in June rather than July? Perhaps, like Bob Woodward, I had intended to ask Libby about Wilson’s “wife,” but neglected to do so. Woodward had testified that Libby had not told him anything about Plame when they spoke. Novak had told the jury the same thing. I was the only journalist who testified that Libby had talked about Plame.
I reread the notebook containing the notes of my second interview with Libby on July 8. While there were ten notations of Plame’s name, or versions of it, scattered throughout the notebook, none was part of my conversation with Libby. Nor, for that matter, was her name linked to any other source identified in the notebook. Given the placement of the doodles, however, I had clearly learned by then that Wilson’s wife had worked at the CIA. Precisely when and from whom, I still could not recall.
The notes of that second interview with Libby also contained a comment inside parentheses: “(wife works at WINPAC).” The acronym stood for Weapons, Intelligence, Nonproliferation, and Arms Control Center, the unit within the CIA that, among other things, tracks the spread of unconventional weapons. I believed this was the first time, I had testified, that I had heard—I said from Libby—that Wilson’s wife worked in that office. I said that the notation had led me to conclude that Plame was an analyst, not a secret undercover operative. But while there were several additional references to WINPAC in my two-hour-long interview with Libby, there was no other reference to Wilson’s wife.
Again, I was seized with doubt. Had I been told, incorrectly, that Plame worked at WINPAC before my meeting with Libby? Or if I had already been told that Plame worked at the CIA, and since Libby and I had been discussing the WMD intelligence estimates that WINPAC had helped prepare, had I put two and two together and gotten five? Had someone else told me, or had I concluded on my own that Plame worked at WINPAC?
Only after the trial did I learn that Cheney had told Libby by phone in early June that Plame worked in the CIA’s counterproliferation division. So why would Libby have told me that she worked at WINPAC? Suddenly the explanation I had given under oath—that Libby had identified her as a CIA weapons analyst in WINPAC—made no sense. No other witness had heard Libby associate Plame with that office.
My heart sank as I closed the notebooks. What if my testimony about events four years earlier had been wrong? Had I misconstrued my notes? Had Fitzgerald’s questions about whether my use of the word Bureau meant the FBI steered me in the wrong direction?
Though I felt certain before the trial that Libby and I had discussed “the wife,” if only in passing, my memory may have failed me. Rereading those elliptical references and integrating them with what I had learned since the trial and with the information about Plame’s cover that Fitzgerald had withheld, it was hard not to conclude that my testimony had been wrong. Had I helped convict an innocent man?
* * *
Memory can be treacherous. Daniel L. Schacter, the chairman of Harvard’s psychology department, with whom Libby had consulted before his trial, told me when I called him years later that such memory “transgres
sion” was common. Scientific research had shown time and again that “misattribution”—falsely remembering how or where we had heard or learned things—was normal, and far more common than people understood. But the judge had not permitted the jury to hear such evidence.
Schacter told me he was convinced that the jury lacked the information it needed about memory failure to make a reasoned opinion about Libby’s guilt or innocence. Based on what the jury saw, he said, “I could not have rendered a fair decision based on the evidence. I do not believe that they could either.”8
In my Times story about my grand jury testimony in October 2005, I described my chance meeting with Libby in August 2003 at that Jackson rodeo. The point of the story was that I hadn’t recognized Libby when he had said hello to Jason and me partly because I had met him only twice before and because he was not wearing a suit, Washington’s uniform, but jeans, sunglasses, and a cowboy hat. Jason, too, recalled our encounter and my embarrassment about not having recognized the senior official he called the “guy in a cowboy hat.” But those clear memories were wrong. Libby had not worn a cowboy hat that day. He did not own a cowboy hat, he told me when we later discussed our respective memory lapses and impressions of an episode that neither of us thought we would ever forget.
But I was sure about the hat, I told him. Libby permitted himself a tight smile. “Are you more or less certain about the cowboy hat than you were about our having discussed Valerie Wilson’s CIA job?” he asked me.
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