Plame & Marshall Revisited

by Jonah Goldberg

You may recall that last July, the Washington Post broke a story that Valerie Plame had pushed Joe “Which Camera is Mine?” Wilson, her husband, for the job of envoy to Africa on the whole yellow cake uranium thing. This was back when Marshall was promising a huge, massive, story that would shake the granite foundations of Western Civilization any day now. Whatever happened with that anyway?

The significance of the allegation that Plame boosted her husband was that it undercut the allegation that the White House had outed Plame as payback and supported the notion that the White House was merely trying to explain the existential hackiness of Joe Wilson.

Marshall wrote:

“There’s no ‘challenging the bona fides of a political opponent’ exception to the law in question. While Plame’s alleged role may have some political traction, it’s legally irrelevant. Government officials are not allowed to disclose the identity of covert intelligence agents, whether they feel like they have a good reason or not.”
I responded that I would trust someone else’s legal analysis on the whole matter. You can read what else I wrote I wrote here, what Marshall wrote here, and a good summary of the larger legal context here.

Well, it looks like I found the legal analysis I was looking for this. Bruce Sanford and David Rifkin wrote a piece in yesterday’s Wall Street Journal arguing that the law most certainly doesn’t apply to cases such as Novak’s. Here’s an extended quote because it’s behind a registration firewall:

In all of this, far too little attention has been paid to the law that is driving Mr. Fitzgerald’s inquiry. Nearly all discussion of the Plame investigation has instead mechanically assumed, without any critical thinking, that a crime was committed when “two senior administration officials,” in Mr. Novak’s words, disclosed to him in July 2003 that Ms. Plame was a CIA “operative.”

In fact, the most powerful reason why journalists should not be jailed for failing to cooperate with Mr. Fitzgerald’s grand jury is because Mr. Fitzgerald has no crime to investigate.

The Plame inquiry is justified, we’re told, by the Intelligence Identities Protection Act, which Congress passed because our intelligence community was apoplectic over Mr. Agee’s “outing” during the 1970s of CIA covert agents stationed abroad to purposefully disrupt the agency’s operations. The bill probably should have been called the “Get Philip Agee” Act.

The law requires a prosecutor to show that a person has disclosed information that identifies a “covert agent” (not an “operative”) while actually knowing that the agent has been undercover within the last five years in a foreign country and that the disclosed information would expose the agent. For a person who had no classified access to the outed agent’s identity, the law provides the additional hurdle of proving a pattern of exposing agents with the belief that such actions would harm the government’s spying capabilities.

As a practical matter, this high degree of proof of willfulness or intentionality would be almost impossible to find in any circumstances other than in a Philip Agee clone (and maybe not even him). To interpret the statute more broadly would flout the longstanding American jurisprudential tradition of narrowly construing criminal laws, especially those that encroach upon free-speech values.

The legislative history of the law could not make its narrow purpose more clear. The “principal thrust of this [statute] has been to make criminal those disclosures which represent a conscious and pernicious effort to identify and expose agents with the intent to impair or impede the foreign intelligence activities of the United States by such actions,” reads the Senate report. Legislators emphasized that they crafted the bill to “exclude the possibility that casual discussion, political debate, [or] the journalistic pursuit of a story on intelligence . . . will be chilled.”

The statute was thus not intended to target executive branch officials who make disclosures — whether carelessly, out of personal or bureaucratic animus, or in pursuit of an important foreign-policy objective — while talking about national security matters with reporters. Indeed, even if Congress wanted to criminalize — which it in fact emphatically did not — executive branch release for policy reasons of a particular type of intelligence information, such a regulatory scheme would have serious separation of powers problems. The act was also not supposed to entangle reporters in a net of prison sentences, either as recipients of leaks or as disclosers in their own right.

Yet here we are with a special prosecutor on the loose and in pursuit of jail terms for journalists regarding a dissemination of information which was relevant to the central foreign-policy question of our times — i.e., did the U.S. embark on its invasion of Iraq with a reasonable if mistaken belief that Saddam Hussein possessed weapons of mass destruction?

Indeed, the piece seems like such a complete slam dunk I am fairly shocked that we’ve gotten to where we are now. I’m also surprised, from a quick scanning of the usual blogs, that it received little notince. I know Bruce Sanford a little bit, by the way, and he’s no partisan rightwinger. From what I can tell he’s a liberal Democrat and I know that he’s among the half dozen most respected first amendment lawyers in the country. Regardless, I’d be interested in knowing if Rivkin and Sanford are off base here since, again, I’m no lawyer. Moreover, even though Marshall has an off-putting habit of ignoring direct criticism, it would be nice to hear from him. Does he really think that the law is being used correctly? Does he still believe that outing an operative under the circumstances Sanford and Rivkin describe should be considered a crime under the statute in question? Are Sanford and Rivkin properly describing the circumstances? Inquiring minds want to know.

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