2. One of John Cole’s commenters points to the full text of the Appeals Court opinions upholding the subpoenas for Miller and Cooper.
Reading those opinions makes it evident that the reporters who are so eagerly lapping up the “no crime” theory haven’t read them. All three judges agree that, if a common-law “reporter’s privilege” exists, Mr. Fitzgerald has submitted enough evidence about the commission of a serious crime or crimes to warrant overcoming that privilege. Judge Tatel in particular speaks without qualification of a “plot against Wilson” (I’m not sure whether he means Joseph or Valerie) and calls the revelation of Plame’s identity “a serious breach of public trust.”
I should note that the opinions provide no support for the theory (insisted on ad nauseum in this space) that the prosecutor is aiming for an Espionage Act prosecution; for the most part, they assume that the IIPA is the relevant law. But I still believe that Judge Hogan’s remarkes to Judith Miller were inconsistent with an IIPA case but consistent with an Espionage Act case.
3. Another of Cole’s commenters points out that the fact that Valerie Plame Wilson had lived in Washington for more than five years before the Novak column needn’t mean that she didn’t meet the standard of having served abroad in a covert capacity in the previous five years:
Plame married a diplomat, and her NOC cover was reportedly changed to a “State Department” cover (possibly, as the wife of a diplomat.) That’s still considered “covert.” If Plame left the country at any point within five years, and her passport gave her diplomatic status, she had fulfilled the minimal requirements of the law.
4. One question that would face a judge and jury in an Espionage Act case is how strictly accountable to hold someone with a security clearance for guarding classified information received under that clearance.
In that context, the Nondisclosure Agreement (SF 312) every such person signs might not be dispositive, but it would certainly be relevant. Henry Waxman provides some text and context, and it’s clear that, even if Rove did no more than confirm something Novak already knew, in doing so he violated the agreement he had signed.
Classified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information.
As the briefing booklet given to every signer of SF 312 explains:
Question 19: If information that a signer of the SF 312 knows to have been classified appears in a public source, for example, in a newspaper article, may the signer assume that the information has been declassified and disseminate it elsewhere?
Answer: No. Information remains classified until it has been officially declassified. Its disclosure in a public source does not declassify the information. Of course, merely quoting the public source in the abstract is not a second unauthorized disclosure.
However, before disseminating the information elsewhere or confirming the accuracy of what appears in the public source, the signer of the SF 312 must confirm through an authorized official that the information has, in fact, been declassified.
If it has not, further dissemination of the information or confirmation of its accuracy is also an unauthorized disclosure.
(The passage appears on Page 73 of the booklet, which is Page 75 of the .pdf.) Presumably, this applies a fortiori to confirming disclosures not yet published.
Note that the booklet also contains the full text of the Espionage Act, suggesting that the EA isn’t a dead letter, as Rove’s supporters so fervently hope it to be.
Even if the fact that a disclosure was forbidden by the Nondisclosure Agreement were held not to constitute “reason to believe” that the disclosure “could be used” to injure the United States, there remains the question of the security clearance itself. Violating a nondisclosure agreement is grounds for the revocation of a clearance, by the terms of the President’s own Executive Order (which restates the terms of similar orders going back to the beginning of the Cold War).
The President is right, of course, in saying that whether Karl Rove committed a crime or crimes is to be judged in court, not in the press. But whether he keeps his clearance is a matter for the Executive Branch. The President’s own Executive Order makes it his responsibility to determine whether Rove acted in “reckless disregard” of his obligations.
I think the Congressional Democrats have this sow by the right ear. No, stripping Rove of his security clearance, or even firing him, isn’t the goal here, but those are decisions within the President’s scope of duties, and he ought to be held accountable politically for how he performs those duties. It’s his job, now, to determine whether Rove has or has not breached his obligations to keep secrets secret.
If it’s Mr. Bush’s judgment that his friend has not, in this case, done wrong, then he should say so. But he can’t pass that judgment off on the courts. This buck stops on the President’s desk.