F air Game opened in theaters across America over the weekend. Based on the memoirs of outed CIA operative Valerie Plame (played stunningly by Naomi Watts) and her husband, former ambassador Joseph Wilson (played well by Sean Penn), the movie perpetuates the conventional wisdom about the infamous Plame affair. It focuses on the consequences of the exposure of Plame in a column by Robert Novak. Both Wilson and Plame claimed they were the target of a Bush White House plot led by former Vice President Dick Cheney’s chief of staff, Scooter Libby, to leak Plame’s CIA identity to retaliate against Wilson for an op-ed article he had written for the New York Times. The column disputed the famous sixteen words in President Bush’s 2003 State of the Union about Iraqi attempts to buy yellowcake uranium in Niger to make nuclear weapons. Libby ultimately was convicted of perjury and obstruction of justice as a result of a probe of the leak of Plame’s identity.
The movie conforms to a pure and simple Hollywood story line complete with hero (Wilson), villain (Libby), and innocent, distressed damsel (Plame). That story line is gospel for the Left. A corollary story line is gospel for the Right: that Libby took the fall for Cheney.
Both are wrong. The fundamental problem is that Hollywood’s narrative needs and political leanings often conflict with reality. Hollywood needs a straightforward story line. Washington is more complicated. The usual explanation for bad outcomes inside the Beltway is not evil or corruption but incompetence or poor judgment. And there are rarely heroes.
Wilson, for example, is a misguided missile, not a courageous whistleblower, and Plame was hardly innocent collateral damage in a war of words. Whatever one thinks about the Iraq policy he helped formulate, Libby had nothing to do with the leak. A review of grand jury and trial transcripts shows he told both the grand jury and FBI that Cheney had told him about Plame’s CIA links, so he did not cover or take the fall for his former boss. But the conventional wisdom is deeply ingrained in the public psyche. In fact, when I bought Plame’s autobiography recently, the cashier at Borders called the White House behavior treasonous. That’s why it’s time to take a fresh look at the Plame affair and set the record straight.
Joe Wilson had gone to Niger in 2002 at the request of the CIA after Cheney had asked the agency about reports that Iraq bought yellowcake from Niger. According to a declassified CIA memo, Wilson found that Iraq had sent a commercial delegation to Niger to expand trade and that the only Niger export Iraq would care about was yellowcake. So there was an attempt, but it proved fruitless. In his 2003 State of Union address, Bush said the British had reported an effort by Iraq to buy “significant quantities of uranium” in Africa. In his July 6, 2003, Times op-ed, Wilson suggested that that statement was evidence the administration was manipulating intelligence to push the war. But Bush said only that the British reported that Iraq “sought” to purchase yellowcake, which was precisely what Wilson had found and reported, according to the CIA. Still, the op-ed caused a furor, and the White House quickly backed off the statements about Iraqi efforts.
Since it is the premise of the film, it’s worth asking: Did the Bush administration distort intelligence to justify the invasion of Iraq, as Wilson claimed?
A year after Wilson’s op-ed appeared, on July 9, 2004, the Senate Intelligence Committee issued a report that found that the intelligence available at the time Bush delivered his speech supported what Bush said. A month later, on August 23, 2004, the University of Pennsylvania’s nonpartisan voter watchdog, FactCheck.org, concluded: “The famous ‘16 words’ in President Bush’s Jan. 28, 2003 State of the Union address turn out to have a basis in fact after all.” The organization noted that: “Ironically, former Ambassador Joseph Wilson, who later called Bush’s 16 words a ‘lie,’ supplied information that the Central Intelligence Agency took as confirmation that Iraq may indeed have been seeking uranium from Niger.” The bipartisan Robb-Silberman Commission reached the same conclusion. Yet, as recently as October 19 at a showing of Fair Game at the AFI Silver Theatre and Cultural Center in Silver Spring, Md., Wilson continued to argue that what Bush said in his speech was “bullshit” and that Bush had “skewed facts for political reasons.” The anti-Bush audience ate it up. But it sure looks as if Wilson is doing precisely what he accused Bush of doing.
Valerie Plame says in her memoir that she read the report that the CIA wrote immediately after debriefing Wilson on his trip and also read his column before it was published. She added that she thought the column was accurate. She said the report was only a few pages long. No one, let alone a professional intelligence officer, could have missed the part about Iraq trying to buy yellowcake. She had to know the column was wrong, but evidently said nothing. So she was anything but an innocent bystander as her husband created a political firestorm.
The movie portrays Lewis “Scooter” Libby as the mastermind behind the leak that outed Plame and suggests the move was part of a plot to smear Wilson. But columnist Robert Novak, who broke the story about Plame’s CIA link, testified at Libby’s trial that Libby did not tell him about Plame. Nor did the prosecution ever claim that Libby leaked to Novak. Novak testified that former Deputy Secretary of State Richard Armitage — no ally of Libby and Cheney — was the source. Armitage apparently leaked Plame’s CIA job as an offhand bit of gossip at the end of an interview. Armitage was not part of any White House plot to out Plame. CIA spokesman Bill Harlow and White House advisor Karl Rove later confirmed for Novak that Plame worked for CIA —again, no connection to Libby. To show how far the movie diverges from reality, Armitage — who should have been a key character — isn’t even in the film, except for a note at the end that mentions his role.
In a question and answer period after the AFI screening, director and Plame/Wilson hagiographer Doug Liman insisted he was “diligent” about fact-checking. He said he left out Armitage and made Libby the heavy “for efficiency of storytelling.” After all, he said, “it all ultimately led back to Scooter Libby,” who, Liman said, put Plame’s name in a memo Armitage saw. But this is simply not true: according to testimony at the trial, a State Department official, Carl Ford, wrote the memo. Libby had no hand in it.
The entire thrust of Liman’s film, told from the Wilson/Plame point of view, is that the White House did something wrong, that it manipulated intelligence and then retaliated against Wilson by exposing a covert operative and endangering national security. But no one was ever charged with violating the law that makes it illegal to expose spies because the law requires an intent to undermine CIA operations, which neither Armitage, nor Rove, nor the CIA spokesman had. As trial testimony showed, neither Libby nor anyone else knew Plame was covert. Most importantly, Libby was acquitted on the only charges that relate to leaking Plame’s CIA employment.
Libby was charged with lying during the investigation about three phone calls with reporters. These calls occurred on the weekend following Wilson’s op-ed. The prosecution claimed that in two of these calls, reporters Judith Miller of the New York Times and Matthew Cooper of Time asked Libby about Plame’s CIA employment and that Libby confirmed it. Libby denied that he had confirmed her employment for them. Judge Reggie Walton and the jury found for Libby. The judge said there was no evidence to support the charge about Miller and threw it out midway through the case. The prosecution’s evidence of the Cooper leak was so feeble that the jury acquitted Libby on that charge.
Libby’s conviction turned on his testimony about a phone call with NBC’s Tim Russert that occurred the day before the two calls with Miller and Cooper. Ironically, the prosecution charged that during the Russert conversation Wilson’s wife was not discussed.
Liman told Variety his screenwriters sat through the entire trial. Did they leave before the verdict or did they just ignore it? If Liman wanted to make a movie about what actually happened, Armitage, the CIA spokesman, and Novak would have been the focus — not Libby.
So what was Libby’s conviction about? Months after the events, Libby testified that Russert had told him that Wilson’s wife worked at the CIA. Libby had already testified that he had first learned about Wilson’s wife’s CIA employment from the vice president, but he believed he had also heard about her CIA employment in his conversation with Russert a month later and that he had been surprised when Russert said it. At trial, Russert testified that he could not have told Libby because he did not know about Plame until he read Novak’s column. The prosecution claimed Libby lied about the Russert call so Libby could suggest he forgot about the Cheney conversation and passed on information from Russert to Miller and Cooper. That would insulate him from charges that he passed on classified information from Cheney and that he leaked Plame’s name — a fireable offense in President Bush’s view. But since Libby didn’t leak as charged, and since he disclosed what Cheney had told him about Plame, it means the jury convicted him of lying to cover up crimes he didn’t commit and to protect a boss he wasn’t protecting — an absurd conclusion.
How did this happen? Juror Denis Collins said in an interview that the jury was not tasked with coming up with a motive. But motive turns an innocent faulty memory into a knowing lie, which amounts to perjury or obstruction of justice. As the prosecution told the jury, “People don’t lie for the heck of it; they have to have a reason.” Since Libby didn’t leak to the reporters, and since he had testified truthfully about learning of Plame from Cheney, Libby had no reason to lie about his Russert conversation. Collins declined to address that issue. Prosecutor Patrick Fitzgerald, through a spokesman, also declined comment for this article. At trial, Libby’s team offered a simple, innocent explanation for the discrepancy between his testimony and Russert’s: Russert’s memory or Libby’s could have been mistaken. Libby’s team showed throughout the trial that every witness had made memory errors in testifying months or even years after events, including Russert. Most notably, the FBI’s memorandum of the first interview with Russert indicated Russert said he could not completely rule out the possibility that he had discussed Plame with Libby, as Libby had said. On the stand more than three years later, Russert denied having said that to the FBI. Russert also said if someone in his bureau knew about Plame, he would have known about her, in which case he could have told Libby. Libby’s team uncovered a videotaped admission, made shortly before Russert’s initial FBI interview, that one of Russert’s top people knew about Plame before the Novak column. But the judge did not allow the jury to see the videotape.
Libby also argued that his own memory could have been wrong. Novak and Washington Post reporter Bob Woodward both testified that they may well have discussed Plame with Libby around the time he spoke with Russert, and that Libby confirmed nothing for them. Cooper raised Plame with Libby the next day, and Libby confirmed nothing for Cooper. The Cooper conversation was similar to the one Libby recalled having with Russert. Testifying months after the fact, Libby may have mixed up the middle-aged reporter with whom he had a brief phone discussion about Plame.
To show the jury how likely it was that either Libby or Russert could have made a simple memory error, the defense had assembled a team of some of America’s leading memory scientists. But Judge Walton made a disastrous decision to exclude expert testimony about memory. The judge, who declined comment, said in court he barred memory testimony because he believed jurors’ daily experience enables them to know how memory works.
In fact, popular conceptions about memory — how memory works, how frequently memory errors (including false memories) occur — directly contradict scientific findings. The memory scientists would have shown how memories don’t just fade, they change, often dramatically, as they are confused or contaminated with other events that occur at the time of an event, in the months following, or at the time of attempted retrieval. Scientific studies show it’s particularly difficult to recall when an event occurred and who was involved. People are often unaware their memories have changed, leading them to believe their memory errors are much less frequent than scientific studies show they are. This is true even for important events, let alone the details — persons involved, the precise timing of things — of events that may not seem important as they are happening.
The jury understood that the accuracy of memory was important to the case. As one juror put it during deliberations, according to an op-ed Collins wrote: “If this trial is about memory, why haven’t we heard from any memory experts? I’d like to know what’s possible to forget.” Or, as the experts would say, how possible it is to confuse a memory or create a false one. So while the judge didn’t think the jury needed expert testimony, the jurors did.
While the experts had years of scientific studies of memory to back up their testimony, a study conducted shortly after the trial showed how difficult it is to remember something not considered important at the time it happens — even if it becomes important later (like when a grand jury asks about it). The study also showed people think the opposite — that you can recall the information when it becomes important long after the fact. Plame’s identity and involvement in sending Wilson to Niger were not important at the time. Libby and Cheney focused on rebutting Wilson’s false claims that Cheney sent him to Niger and saw his report, and Plame had nothing to do with that. But the jury’s conventional view of memory suggested Libby should have recalled any earlier discussions long after the fact because of their ultimate significance. The later study, conducted by professors from Harvard and the University of Virginia and published in Psychological Science, was subtitled “The Scooter Libby Effect.”
Because of another ruling by the judge, the jury did not know what Libby was doing during periods that memory research shows can lead to memory errors, such as confusing the source of information. Events around the time of a conversation, the time of recall, and anything in between are all important to assess memory, experts say. But the judge excluded that information from the trial. The bottom line, according to Harvard memory expert David Schacter, who has reviewed the case: “As someone who has studied memory for a lifetime, I could not render a fair decision based on the evidence before the jury. I do not believe that they could, either.”
While the jurors understood the importance of memory errors for the case, they weren’t aware of their own missteps. For example, Collins says that one of the most important pieces of evidence the jury focused on was a copy of Wilson’s Times op-ed on which Cheney had written some notes about Plame. In explaining the jury’s findings, Collins recalled that investigators found the annotated op-ed in Libby’s drawer and thought it impossible for Libby to have forgotten about Cheney’s notes. But the trial made clear that investigators actually found the article in Cheney’s safe. There was no evidence Libby had seen Cheney’s notes. Jurors thus had faulty memories about the one thing they focused on for weeks — the trial — yet couldn’t conceive that Libby might have had a faulty memory about a part of one of hundreds of conversations he had months before he testified.
The more you probe, the more Kafkaesque the case becomes. Conversations prosecution witnesses failed to remember became proof Libby couldn’t have forgotten them. Witnesses said the FBI’s potentially exculpatory contemporaneous notes about their testimony were wrong, and their more incriminating memories to the contrary months later were right. When a key prosecution witness was shown to have been confused about which reporter he spoke to about Wilson’s wife, the prosecution argued that a faulty memory “about Wilson’s wife does not in any way, shape or form suggest a reason why [the witness] would fabricate, make up, or invent a story.” For the prosecution, confusing which reporter a witness had a conversation with doesn’t mean the witness is lying. Unless the witness’s name is Scooter Libby. The movie should have starred Ludacris, not Sean Penn.
Even at the end of the long ordeal, poor memory — and irony — continued to played a role. Libby called White House counsel Fred Fielding as the clock was winding down on Bush’s term to ask if he could meet with the president to make his case for a pardon. Fielding mentioned he had received a call from a senator who had defended Libby. That surprised Libby, who knew the senator but had not considered him an ardent supporter. And Libby suggested it might have been another senator who Libby knew had spoken to Fielding.
Libby, who answered questions for this article, asked Fielding three times if he was sure it was the senator Fielding mentioned, and Fielding insisted that it was. But a little later, Fielding realized that he had made a mistake and that the senator Libby had mentioned was the one who had called. “Fred,” Libby said wryly, “you could be indicted.” The incident evidently didn’t convince Fielding that Libby may have made a similar memory error. Fielding didn’t return calls seeking comment.
In sum, Fair Game unfairly distorts what Libby did. Fact is, Libby was acquitted of the only charges that involved him leaking to reporters, and his conviction for lying to Russert to cover up crimes he didn’t commit makes no sense. The defense’s efforts to rebut the prosecution claim that he lied about his conversation with Russert were crippled by the judge’s rulings. The missing testimony, including expert testimony by memory scientists — something the jury said they wanted to hear — could well have changed Libby’s fate.
It’s time to get the facts right about the Plame affair. Fair Game perpetuates the myths about it and confirms what so many believe, but which just ain’t so. It’s Exhibit No. l for the proposition that allegations live on while the truth dies, buried on page A18.
Stan Crock is the former Washington news editor and chief diplomatic correspondent for Business Week. A Democrat who has known Libby socially for decades, he worked briefly as a consultant for the Libby defense team two years ago.