Saturday, November 19, 2005

American Prospect Online - Need To Know

Gerald Lechliter, the retired officer who traced Bush’s military record, has assigned himself a new task -- deciphering the Plame investigation.

By Greg Sargent
Web Exclusive: 11.16.05

Does anybody remember Gerald Lechliter?

In the home stretch of the 2004 presidential campaign, Lechliter, a retired army colonel from Delaware with a bit of spare time on his hands, wrote a 32-page analysis of George W. Bush’s military records that showed that Bush had shirked his duty. Lechliter sent it to The New York Times’ Nicholas Kristof, who wrote a column, “Missing in Action,” that called Lechliter’s missive “the most meticulous examination I’ve seen of Mr. Bush’s records.” Lechliter helped revive the story, and his analysis was subsequently cited in publications all over the country.

Well, it turns out that Lechliter has done it again. And this time, he has trained his sights on the outing of Valerie Plame.

Lechliter -- who claims 25 years experience in the intelligence field -- has penned a detailed analysis of the Plame affair, and Patrick Fitzgerald’s duty as special counsel, that he has sent to Fitzgerald. He also sent a copy to the Prospect. Lechliter -- operating on his own time again -- did a close reading of the regulations governing both the proper treatment of classified information and the authority delegated to Fitzgerald. And what he came up with is worth a look -- after all, the credibility he earned when he broke ground on the story of Bush's records last year has earned him the right to another hearing.

Lechliter’s most interesting conclusion is this: Contrary to what some pundits have said, it may in fact have been a violation of federal regulations for senior administration officials -- even those who did not disclose her identity -- to privately discuss Plame’s identity among themselves. Intriguingly, Lechliter also concludes that Fitzgerald could, if he chose to, recommend administrative disciplinary measures against those officials, even if they have not done anything clearly illegal. Such recommended measures, he says, might include firing such officials or revoking their security clearances.

If Lechliter is right, Fitzgerald’s authority goes beyond simply bringing criminal charges. He can suggest punitive measures (administrative, not criminal) for top Bush administration officials who may not have broken any laws but who privately traded on Plame’s identity (a group, of course, which includes Karl Rove and possibly Dick Cheney, though it's less clear what sort of measures could be taken against the Veep).

Lechliter’s starting point is the Fitzerald press conference. The special counsel said: “Let me make clear there was nothing wrong with government officials discussing Valerie Wilson or Mr. Wilson or his wife and imparting the information to Mr. Libby.”

Many pundits have simply accepted that assertion to mean that Fitzgerald was saying that no rules of any kind were broken when the officials discussed Plame. But there’s another possibility: Fitzgerald, a very precise, by-the-book prosecutor, may simply have meant that it wasn’t illegal. That needn’t preclude the possibility that federal regulations had still been broken, however.

As Lechliter points out, no one is disputing that the fact that Plame was a CIA officer was classified. Fitzgerald said so at the press conference and in the indictment.

Lechliter points to Executive Order 12968 which governs the access officials have to classified information. It says: “Employees shall not be granted access to classified information unless they ... have a demonstrated need-to-know.”

At this point, we have been told by the indictment, at a minimum, that Cheney appears to have learned of Plame's employment status from the CIA; that I. Lewis Libby discussed it with Cheney; and also that a senior CIA officer and the under secretary of state discussed it with Libby, too.

We also know that Rove discussed it with Libby. There's much more, of course, but in sum these top officials -- Cheney included -- all appear to have been passing classified information back and forth.

The press -- and Fitzgerald -- has mostly focused on whether a criminal act occurred when one or more of these officials passed the info to reporters. But Lechliter argues that a perhaps more important question is this: Have the above officials violated federal rules by privately sharing classified information with each other? Lechliter argues, compellingly, that there’s little doubt that the above officials had no “need-to-know” this information. Therefore, he continues, one or more of them may have violated the executive order simply by passing the information on to a colleague without a “need-to-know” it.

“Clearance does not entitle a government employee to access to all [classified] information, but only to that material necessary to perform his or her valid government function,” Lechliter writes. “I cannot conceive of any plausible reason,” he continues, for these senior officials to “have a need to know the status of Mrs. Wilson.”

A violation of an executive order may not be a criminal act, Lechliter notes. But it is a violation of federal rules all the same. So what is supposed to be done about it? Federal regulations, he points out, require the Executive Office of the President to launch an internal inquiry and discipline any violators.

That, of course, appears not to have happened. And that, Lechliter argues, is where Fitzgerald comes in. Here’s how: Lechliter points to a now well-known February 6, 2004 letter to Fitzgerald from Deputy Attorney General James Comey, in which Comey defines the special counsel’s authority. The letter says that Fitzgerald’s authority is “plenary and includes the authority” to investigate “violations of any federal laws.” But it also says something that's gone pretty much unnoticed: that Fitzgerald has the authority to “pursue administrative remedies and civil sanctions ... that are within the Attorney General’s authority to impose or pursue.”

That sentence is the key, Lechliter argues. Because it very clearly states that Fitzgerald, who for all practical purposes has been granted the powers of the attorney general, can do more than just prosecute criminal acts. He can also pursue “administrative remedies” within the attorney general’s authority. In this case, Lechliter says, the administrative violations Fitzgerald could recommend "remedies" for include the improper -- though not illegal -- sharing of classified information.

“This shouldn’t be just about criminal acts,” Lechliter says in an interview. “It should also be about possible violations of administrative rules that have occurred. The Executive Office of the President evidently hasn’t conducted a proper investigation into them. But somebody has to. And my argument is that it’s clearly within the scope of Fitzgerald’s authority to do it. He can also recommend administrative action against violators.”

Fitzgerald is not required to pursue these violations, Lechliter allows. “I’m not saying that Fitzgerald has to do this,” he says. “Just that he has the authority to do so if he wishes. And he should if no one else has.”

“I took my obligation to protect classified information very seriously,” he continues. “But these officials seemingly didn’t -- and they haven’t suffered any consequences. That’s wrong. Fitzgerald could change that.”

Is this simply legal theorizing? Of course it is, to some extent. And Fitzgerald's office declined to comment. But if Lechliter is right, a key issue is whether violations of administrative rules, as opposed to criminal statutes, are going unpunished. That question alone (not to mention whether Fitzgerald, whatever his inclination, could address it if he wanted to) at least deserves more attention.

Back in 2004, after Lechliter’s analysis of Bush's military records appeared under Kristof’s byline, Lechliter recalls that he spent many hours on the phone or in person with reporters from the Times, The Boston Globe, The Los Angeles Times, and USA Today. They all subsequently ran stories based partly on his findings.

Maybe the time has come again for a reporter or two to get in touch with Lechliter. He can be reached at GLechliter@aol.com.

Greg Sargent, a contributing editor at New York magazine, writes a bi-weekly column for The American Prospect Online. He can be reached at Greg_Sargent@newyorkmag.com.

© 2005 by The American Prospect, Inc.
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