Sometimes I wonder whether the people who write the editorials in the Wall Street Journal bother to read the news columns of their own newspaper. Today’s editorial on the Plame affair is a case in point.
I’ve suspected for quite a while that Joseph Wilson sometimes lets his narcissism get in the way of his veracity. But since he’s not running for anything right now, and since nothing about the Valerie Plame case depends on any assertion by Wilson, and since the (il)legality of revealing Plame’s status as a CIA case officer isn’t changed by whatever role she had or didn’t have in sending her husband to Niger, I haven’t paid much attention to the back-and-forth between Wilson and the Senate Select Committee on Intelligence.
A story in yesterday’s Journal (p. A4, David S. Cloud and Gary Fields) speculates that, as a purely political matter, the controversy about Wilson might make Peter Fitzgerald, the U.S. Attorney for Northern Illinois acting as Special Prosecutor, more reluctant to indict major Bush Administration figures before November. That could be right, though I rather doubt it: both in ethical and career terms, the right thing for Fitzgerald to do is to indict when he’s ready to indict, which I think should be any week now.
But the reporters get the legal part right:
Whether or not it damages [Wilson] or not, the report, in strictly legal terms, should not have any effect on Special Prosecutor Patrick Fitzgerald’s investigation into whether the White House violated a law that makes it a crime to disclose the name of a clandestine intelligence officer. (Or, they might have added, other laws about disclosing information damaging to the national security or information that compromises intelligence sources and methods.)
Yet today’s lead editorial contains this howler:
Mr. Wilson had been denying any involvement at all on Ms. Plame’s part, in order to suggest that her identity was disclosed by a still-unknown Administration official out of pure malice. If instead an Administration official cited nepotism truthfully in order to explain the oddity of Mr. Wilson’s selection for the Niger mission, there there was no underlying crime. Motive is crucial under the controlling statute.
NOT! Intent and knowledge are (with rare exceptions) essential elements of criminal liability, but only intent and knowledge as the law understands those concepts. For a crime to have been committed the defendant must have intended to do the act the law forbids, and known that he was doing so.
But motive is (again with exceptions) largely irrelevant. If I sell cocaine intending to donate the proceeds to charity or to pay for my brother’s kidney transplant rather than from greed, that intent does not provide a defense at law.
Yes, it’s sometimes a defense that committing the otherwise criminal act was necessary to prevent a greater harm, as in the classic example of someone who breaks a shop window to get a life-preserver to throw to someone who is drowning. But prevention of political embarrassment to the existing administration (even if that embarrassment were undeserved) would not constitute “necessity” in the legal sense.
So the editors are (as usual) full of Bush lit. Won’t some kind soul buy them a subscription to their own paper?
Update: Huh? The news colums of the WSJ report, accurately, that questions about Joseph Wilson’s credibility and his wife’s role in sending him to Africa have no legal relevance to the prosecution of whoever unmasked Valerie Plame as a covert CIA officer. The editorial page of the WSJ asserts that, since questionns have now been raised about Joseph Wilson’s credibility and his wife’s role in sending him to Africa, the Special Prosecutor should shut up shop. Juan Non-Volokh says that, because the news story also reports some other legal hurdles the prosecution faces, I haven’t proven my case that the editorial page is, once again, misrepresenting the facts.
Juan says that he hasn’t had time to read the relevant statutes. Here’s one of them (50 USC 421):
(a) Disclosure of information by persons having or having had access to classified information that identifies covert agent
Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the
information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than ten years, or both.
(b) Disclosure of information by persons who learn identity of covert agents as result of having access to classified information
Whoever, as a result of having authorized access to classified information, learns the identify of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than five years, or both.
Note that the only “intent” required is that the disclosure itself be intentional, rather than inadvertent. Intent to damage national security is not even mentioned. The hard part for the prosecutor would be proving knowledge that the United States was still taking affirmative measures to protect the identity in question.
It’s true that subsection (c) of the same statute involves a “pattern of activities,” in language obviously written to cover Phillip Agee’s Counterspy operation. That section does make knowledge (thought not intent) that revealing the information will damage national security an element of the offense. But that scienter requirement, while it shields Robert Novak, does nothing for the folks in the White House, all of whom have clearances.
That isn’t the only statute that might apply. The Espionage Act is much less tightly worded, requiring only (1) lawful possession of information that (2) the possessor has reason to believe could damage national security and (3) willful communication of that information to (4) any unauthorized person.
In addition, as John Dean has pointed out, the fraud and conspiracy statutes might, with only minimal stretching, be made to apply as well.
Note that neither the WSJ editorialists nor Juan Non-Volokh would have any interest in arguing statutory technicalities here if they didn’t believe what is, in fact, obvious: that the White House deliberately revealed the identity of a covert CIA officer, thus putting the lives of her assets — assets relevant to our attempts to prevent the proliferation of weapons of mass destruction — in danger. Even if it were true that, for some complicated reason, doing so didn’t constitute a proveable crime, it would still be a disgrace, and ample reason for replacing the current Administration at the next opportunity.
Second update Juan replies that since the reporters, having gotten the issue right, also quote a nameless source who gets the issue wrong, the editorial writers should be exonerated for not bothering to read the perfectly clear prose of the statute themselves before expressing an incorrect opinion about it. He’s entitled to his opinion, and I’m entitled to mine: that both he and the WSJ editors are being blinded by partisanship. Note: just because you haven’t bothered to learn about something doesn’t mean that it isn’t true, or that it isn’t important.