“No crime” in the Plame case?
    That’s not what the judge thinks

The presiding judge knows who talked to Judith Miller, and says that doing so was a crime.

Those who have been hoping since the summer of 2003 that whoever outed Valerie Plame as a CIA undercover operative wouldn’t go to jail for it — and that, as a result, the Bush Administration wouldn’t get the black eye its conduct has earned — have been relentlessly pushing the line that no crime was committed by the revelation.

For example, a reader forwards this article (letter to the editor?) from the Wall Street Journal:

Plame Game: Let’s Call Nonsense by Its Name

June 23, 2005; Page A13

In regard to “Supreme Confusion in the Plame Case” (editorial page, June 8) by Theodore B. Olson:

The Supreme Court is considering whether a special prosecutor may prosecute two journalists for not helping uncover who leaked to another journalist, Robert Novak, that Valerie Plame, a CIA officer, had recommended her husband, Joseph Wilson, for a politically charged fact-finding mission regarding WMDs in Iraq. The issue, usually framed in terms of the privileges and responsibilities of journalists, is actually much bigger: Is it legitimate to penalize anyone in connection with an act that is not itself illegal? Does the law cited as the basis of the investigation really introduce criminal penalties into the relationship between intelligence and policy?

The premise of the journalists’ prosecution is that Ms. Plame’s identification was a criminal violation of the Intelligence Identities Protection provision of the Intelligence Act of 1980. As one of the authors of that act and of that provision, I say that is nonsense — with complete confidence that each and every person who had a hand in writing that law is of the same view. More important, the conservatives like myself, the liberals, and the nondescript who wrote the bill narrowly over two years intended the same result for precisely the same reason — to prevent politically charged matters from being polluted by corrosive charges and countercharges of security violations.

Discussions of a bill to criminalize the disclosure of U.S. intelligence operatives had begun in 1977, as former CIA officer Philip Agee was publishing the names and locations of current CIA officers in his CounterSpy magazine, with the avowed intent of wrecking U.S. intelligence. No surprise then that Senate Intelligence Committee staffers referred to the bill being drafted to stop him as “the Agee bill.” But just as all agreed to outlaw such systematic attempts to give aid and comfort to America’s enemies, all agreed that it would be ruinous to criminalize the mere revelation of an intelligence identity in the same way as the U.S. code criminalizes the disclosure of classified communications intelligence.

For better or worse, most controversies about foreign and defense policies involve intelligence personnel. Any blanket “protection” of intelligence identities would have set up a minefield through which people of all tendencies in and out of government would have had to tread in fear. Without exception, staffers on the Intelligence Committee were sharply, personally, aware that charges of “security” breaches are the dirtiest of weapons in policy fights. All had seen these weapons used. All feared innocently mentioning someone’s name in the course of a controversy, and being ruined. Worse, all could imagine opponents maliciously charging them with leaks, or worse, with being party to protecting the sources of leaks.

That is why, with rare unanimity, the bill’s authors sought to eliminate the temptation for anyone to use it as a basis for investigating “leaks” or occasional disclosures such as John Kerry’s, or for involving criminal law in any way in inevitable partisan struggles. That is why the law makes as clear as the English language can that it prohibits only activities that are “part of a pattern,” the purpose of which is to harm U.S. intelligence.

The temptation to criminalize policy differences, however, is as strong as it is deadly. And so, during the 2004 presidential campaign, Democrats seized on Robert Novak’s ordinary reporting of a Bush official’s belated realization that the administration had let CIA official Plame and her husband Joseph Wilson set it up for embarrassment, and charged President Bush with a violation of law. Afraid to call nonsense by its name, Mr. Bush appointed a special prosecutor. And that eventually led to the absurd citation of two reporters for thwarting the investigation into a nonexistent crime.

Angelo M. Codevilla

Boston

(A professor of international relations at Boston University, Codevilla was on the staff of the Senate Intelligence Committee between 1977 and 1985.)

It seems to me that Codevilla’s argument is false in at least three ways:

1. Whatever the drafters wanted, the law says what it says. It says that a non-governmental official can only get nailed for a pattern of revelations: that’s the “Agee” provision. But it also says that an official can get nailed for doing it once. There’s not a trace of ambiguity in the language. Either Prof. Codevilla’s memory and capacity to parse a sentence are defective, or he’s letting partisan passion blind him to obvious realities (as I do when I try to handicap elections).

2. The Espionage Act applies. Unless it’s a dead letter — which the Morison case suggests it isn’t — revealing Plame’s identity was a crime. I’m puzzled why any prosecutor would bother with IIPA when the Espionage Act is sitting right there.

3. False statements to investigators are criminal, even if the underlying conduct wasn’t a crime.

As confident as I was in that line of reasoning, I’m delighted to find my position supported by the one neutral party in the best position to know both the evidence in the case and the law relating to that evidence: the presiding judge.

His language today, as reported by the Washington Post, is nothing short of startling:

[Chief U.S. District Judge Thomas F.] Hogan said Miller was mistaken in her belief that she was defending a free press. He stressed that the government source she “alleges she is protecting” had already waived her promise of confidentiality. He said her source may have been providing information not to shed light on government secrets but to try to discredit an administration critic.

“This is not a case of a whistle-blower” revealing secret information to Miller about “dangers at a nuclear power plant,” Hogan said. “It’s a case in which the information she was given and her potential use of it was a crime. . . . This is very different than a whistle-blower outing government misconduct.”

“The information she was given … was a crime.” So much for the “runaway prosecutor pursuing non-existent crimes” theory. With Cooper talking, it looks to me as if at least one person with White House mess privileges is going down, hard.

Footnote: Note that under IIPA a reporter’s use of information, except as part of an Agee-type “pattern,” wouldn’t be a crime. So for the judge to say that Miller’s potential use of the information would have been a crime, the prosecutor must be thinking of Espionage Act prosecution, and the judge must think that’s plausible.

Second footnote Hogan’s remarks seem hard to square with the theory that’s been making the rounds the past couple of days that Miller herself might have been the source of the Plame revelation. I liked that theory because it seemed the best explanation for media lethargy around the subject. I suppose some part of it might still be true, but I’d give longer odds now than I would have yesterday. And Joseph Wilson’s calling Miller’s jailing “collateral damage” analogous to the damage done to his wife suggests that he doesn’t think of Miller as the villain of the piece.

UPDATE

My old sparring partner Tom Maguire disagrees with the conclusion reached below. Naturally, I’m right and Maguire is wrong: he makes no attempt to explain away the evidence for my conclusion, and his additional evidence doesn’t really cast any doubt on that conclusion. (The judge said what he said, and the prosecutor is simply being appropriately cautious in statements about a case that has not yet led to indictments.)

Maguire is, I hope, entirely right in reaching the conclusion that Rove was the, or a, source for the revelation.

Mickey Kaus, in true journalism-school-objectivist style, quotes my cogent line of reasoning and Maguire’s unconvincing attempt to cast doubt on it without making any effort to figure out which of us is right. On the “was it Rove?” question, by contrast, he does his own analysis and winds up agreeing with Maguire. As the old Yiddish expression didn’t quite say, “From their keyboards to God’s browser.”

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

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