MSNBC.com

Nov. 2, 2005 - The conventional wisdom in Washington this week is that Karl Rove is out of the woods. But while an indictment against him in the Valerie Plame leak case is now unlikely, he may be in danger of losing his security clearance.

According to last week’s indictment of Scooter Libby, a person identified as “Official A” held conversations with reporters about Plame’s identity as an undercover CIA operative, information that was classified. News accounts subsequently confirmed that that official was Rove. Under Executive Order 12958, signed by President Clinton in 1995, such a disclosure is grounds for, at a minimum, losing access to classified information.

Section 5.1 of Clinton’s executive order prohibits “any knowing, willful or negligent action that could reasonably be expected to result in an unauthorized disclosure of classified information.” While the law against revealing the identity of a CIA operative requires that the perpetrator intentionally disclosed such classified information (a high standard, which may be one reason Fitzgerald did not indict on those grounds), the executive order covers “negligence,” or unintentional disclosure.

That means the only proper answer to a reporter’s questions about Joseph Wilson’s wife would have been something along the lines of, “You know I cannot discuss who may or may not be in the CIA.” The indictment makes clear that this was not the answer Official A provided when the subject was discussed with reporters Bob Novak and Matt Cooper.

The sanctions for such disclosure are contained in Section 5.7 of the executive order. That section says that “the agency head, senior agency official or other supervisory official shall, at a minimum, promptly remove the classification authority of any individual who demonstrates reckless disregard or a pattern of error in applying the classification standards of this order.” Any reasonable reading of the events covered in the indictment would consider Rove’s behavior “reckless.” The fact that he discussed Plame’s identity with reporters more than once constitutes a pattern.

In the past, other officials have lost their security clearances for similar disclosures—even without a pattern. Former CIA director John Deutch and former national-security adviser Sandy Berger (who got in trouble after leaving office) both lost their clearances when they took classified information home without proper authorization. More recently, officials of the Coast Guard were sanctioned when they warned relatives of a possible terrorist threat against the New York City subways before public disclosure of the threat.

Ironically, Valerie Plame’s husband, Joseph Wilson, almost certainly engaged in unauthorized disclosure of classified material himself when he wrote publicly about his CIA-backed mission to Niger, though he no longer has a security clearance to lift.

Because Rove’s apparent violation is covered by executive order, not legislated law, the issue of his security clearance is unlikely to wind up in criminal court. But he may face a civil suit from the Wilsons, who could seek damages because of the damage done to Plame’s CIA career by the leak.

Having his security clearance yanked would not require Rove to resign as deputy chief of staff to President Bush. But it would prevent him from taking part in policymaking that relates to national-security issues, which would mean a much-reduced role in the Bush White House. Some Democrats have asked the president to apologize for the Plame leak case—an unlikely event. But asking him to enforce executive orders could be a more legitimate line of inquiry. At a minimum, President Bush should be asked whether he believes this executive order applies to everyone in the White House—even Karl Rove.