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Justice Department granted White House delay on order to preserve records in CIA exposure scandal Nina Totenberg Oct 2nd report aired on 6 am on Morning Edition; NPR dropped segmant from transcript of her report

On October, 2, 2003, Nina Totenberg gave the following report (thanks to Robert E. Reynolds for the following transcription, which I verified by listening to the audio of the Totenberg report.) carried the transcript of the original account, and Reynolds suggested that people go to the NPR site and download the transcript. By doing so, I discovered that NPR had stricken the following paragraph that dealt with the Justice Department granting a White House request for a delay in a directive to preserve records of communications.

The missing segment of Totenberg's report:

Bob Edwards: Attorney General Ashcroft is resisting the idea of some sort of independent counsel. Do you think he'll be able to maintain that position?

NPR legal correspondent, Nina Totenberg: Well no administration ever wants an independent overseer, and there are very good career people who are in charge of this investigation, but it could get hairy. Yesterday I talked to a former justice department official who wondered to me why the White House had asked the Justice Department if they could wait a day, earlier this week, before directing the White House staff to preserve all phone and email records, and why, similarly, the Justice Department had agreed to let the White House wait that day. In the last analysis career people can't make some of the decisions that will have to be made, like whether to call a reporter before a grand jury. The Attorney General under Justice (Department) regulations is required to make that decision. A career person can't make it. And if a leaker is identified and not prosecuted it could raise problems with the CIA. Will the agency believe that a decision not to prosecute was made fairly, or will it, as one former Justice Department official put it to me, open a chasm of distrust between the two agencies. As I said no administration likes to open itself up to outside investigators. And the temperature isn't that hot yet, despite that poll you cited at the beginning, but it could get that hot, and we just can't know right now whether the temperature will get that hot for a long time and make it impossible to continue the course that the administration now has chosen to take.

Here is the story that was sent to me by NPR, without the above final paragraph:

National Public Radio

Morning Edition, National Public Radio

October 2, 2003

Analysis: Latest on investigation into White House leak of CIA agent's identity

Edition: 11:00 AM-12:00 Noon

Estimated printed pages: 4

Article Text BOB EDWARDS, host:

This is MORNING EDITION from NPR News. I'm Bob Edwards.

The controversy continues over whether Bush administration officials exposed an undercover CIA operative to the press. There's much debate over how that leak should be investigated. A new poll by The Washington Post and ABC News finds nearly seven in 10 Americans believe a special council should perform the investigation. Currently, the Justice Department is handling it. NPR legal affairs correspondent Nina Totenberg joins me now.

Good morning.


Morning, Bob.

EDWARDS: Leak investigations are notoriously unsuccessful in Washington. Will this one be any different?

TOTENBERG: Well, a lot of prosecutors and former Justice Department officials and FBI officials I talked to yesterday thought this one might, in fact, be different. First, this appears to be more than one solitary leak but something more akin to a campaign. The Washington Post has reported that six reporters were called with this information. Another thing that will make this investigation easier is that there's a specific federal law making it a felony to disclose the names of covert intelligence officers. Still another thing that will or could make it easier is technology. Investigators can now look at e-mail that has been preserved and e-mail that has been deleted. You can't delete anything permanently.

As for phone records, not only will the Justice Department get the phone logs from the White House and other departments like Defense and State, but once they develop a list of who they're interested in, they can get subpoenas for their home and cell phone records, too, and those records these days often include--they always include local as well as long-distance phone calls and they can include both outgoing and incoming phone calls so that you know who called whom and when.

EDWARDS: They could check out the reporters' phone records, as they tried to do to you once.

TOTENBERG: Yes, they can do that. I've learned this from experience. The Justice Department can subpoena the phone company and the reporter isn't even told. So columnist Robert Novak's phone records or reporter Andrea Mitchell's phone records can be obtained without their permission or knowledge. And according to former Justice Department officials and FBI people that I talked to yesterday, if they really want to find out who the leak is, they'll probably do that. They'll probably subpoena the reporters' phone records.

EDWARDS: OK. Other than phone records and e-mails, how else could investigators figure out who to target for inquiry?

TOTENBERG: Well, they're already, I'm told, starting to interview people at the CIA to find out who knew about Ambassador Wilson's wife, who could have told that information advertently or inadvertently to people at the White House or other agencies and who at the White House and those other agencies knew that information.

EDWARDS: And once investigators winnow down the list of suspects, there's only so much that even phone records will tell you, right?

TOTENBERG: That's probably when there will be serious interviews and perhaps polygraphs. One former high-ranking FBI official who I talked to yesterday said he wouldn't even think of doing an interview without telling the person that he's talking to that they might eventually be polygraphed. That way, he said, you've made sure you don't get jerked around.

EDWARDS: But they aren't always reliable.

TOTENBERG: No, they're not always reliable and that's why they're not allowed as evidence at trials. But the CIA and the FBI routinely use them in national security investigations and you can bet that there will be demands to use them here, too.

EDWARDS: What laws apply to this case?

TOTENBERG: The law that's most applicable I would think is called the Intelligence Identification Act. It was passed in 1982. It makes it a felony punishable by up to 10 years in prison to disclose the identity of covert intelligence officers. So the first question is: Is Ambassador Wilson's wife undercover? And a number of former FBI and Justice Department officials told me yesterday that she clearly is covered by the law or the Justice Department wouldn't have opened a formal criminal investigation but that threshold must already have been met. Some people have suggested that because she's an analyst now, she isn't, you know, a sort of secret agent. But covert officers don't have to be running around in wigs. They can be analysts. They can be undercover as working for private companies or other government agencies and they sometimes come out from undercover but remain protected so that their sources are protected.

EDWARDS: Would the leaker have to know that Ambassador Wilson's wife was an undercover intelligence officer to be convicted of violating the law?

TOTENBERG: The leaker, I'm told, could be convicted even if he didn't know that he was breaking the law. But to win a conviction, a prosecutor would have to show that the leaker knew the ambassador's wife was a covert intelligence officer and that he willfully disclosed that fact, not by accident. It's a little bit like proving perjury with President Clinton. They had to prove he told a literal lie and that he knew it. That turned out to be a very hard thing to do and this may be, too.

[NOTE: NPR deleted the above quoted segment on the delay in ordering the White House to preserve records. Traprock comment.]

EDWARDS: NPR legal affairs correspondent Nina Totenberg.

Copyright ©2003 National Public Radio®. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to National Public Radio.

The link to the audio of the Totenberg story is found at

We have recorded the original story. The audio, unlike the transcript, includes a final segment on the Justice Department granting the White House request for a delay in ordering the preservation of communication records. Hear the missing report by Nina Totenberg (mp3) or RealAudio

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-- Ben (, October 04, 2003

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