The ignorance defense

Mike Allen of the Washington Post reports that some very partisan Republicans (to whom the headline refers as “legal experts”) are saying that whoever at the White House revealed the undercover identity of Valerie Plame might not have known that she was undercover, and thus might not have violated the Intelligene Identities Protection Act.


Of course that’s the obvious defense to a charge under IIPC. The fact that the usual Republican media suspects are now offering it suggests that they’ve given up on the hope that the White House stonewall would hold and that the perpetrators would remain unidentified. Equally of course, it’s not a defense under the Espionage Act. Moreover, something remains a secret for the purposes of the Espionage Act even once it has been illegally disclosed, so the follow-up phone calls from Rove that Vicky Toensing says wouldn’t even qualify as a dirty trick would in fact qualify for seven and a half years’ hard time.

Josh Marshall makes a good case that Robert Novak’s use of the term of art “operative” indicates that Novak knew, which, Josh says, implies that his source probably knew. However, Josh doesn’t consider the possibility that Novak’s original source didn’t know and that Novak did just enough actual reporting to find it out.

I actually think it’s likely that the original source didn’t know that Plame was a “NOC,” because I actually don’t believe that the people around Bush would have been sufficiently unpatriotic to burn a NOC, and all of her assets, in such a petty act of revenge and damage control. That was my first take on this story, and I haven’t yet seen adequate reason to change it. I think that some of my Democratic friends are so taken with the general horribleness of the Bush Administration as to have lost sight of that fact that these people aren’t Snidely Whipsnade melodrama villains, self-consciously revelling in the evil they do. In their own minds, they’re good people, and above all, patriots. So it’s much more likely that whoever called Novak would have had only a hazy impression of Plame’s actual status than that he would have been deliberately revealing a still highly secret identity.

But it’s clear that whoever made the follow-up phone calls, after not only the Novak story but the Corn story, must have known she was covert, or at least must have been on notice that her covert status was a question. Perhaps cognitive dissonance was at work here; having unintentionally done something truly horrible (burning a NOC) in the course of doing something merely routinely nasty (spreading the false rumor that Wilson’s mission was the product of nepotism), Rove or the people working for him may have been psychologically incapable of comprehending just how badly they’d stepped in it. That, plus living in an atmosphere where any sort of moral scruple is interpreted as weakness, might have kept the Mayberry Machiavellis going deeper and deeper into the waters of crime and disloyalty to the nation.

Other thoughts from around Blogspace:

The Liberal Oasis notes how poor the Democratic follow-through has been on this case, and in particular the failure of the Democrats to harp on the theme that for more than five months now the President of the United States has had at least one criminal on his immediate payroll, and done nothing about it.

Michael Kinsely points out the ludicrious inconsistency of the New York Times, demanding a special prosecutor to find out who told Robert Novak something but resisting the idea of putting Robert Novak in front of a grand jury and asking him. It’s worse than that, of course. More than likely, one of the six additional leakees works for the Times, and has told his or her editors the identity of whoever made that phone call.

But neither Kinsley, who regards the question of whether the journalists ought to testify as open (depending on the motivation of the leak and the seriousness of the damage done to national security), nor Glenn Reynolds, who is desperately eager to see Robert Novak forced to testify under oath, notes that there’s another power that could help get at the truth, without any dmage to First Amendment values, that is not being used here.

The President of the United States, charged Constitutionally with the duty to make sure that the laws are faithfully executed, could demand from his immediate subordinates sworn statements as to their knowledge, or lack of knowledge, of who said what to whom and when. His failure to do so, in the face of his Constitutional responsibility and his stated desire to have the truth come out, seems to me the greatest scandal of the Plame affair, and one little commented on.

****Update and retraction: ****

I’ve been saying that last bit for three months now, but my old friend, teacher, and boss Phil Heymann just got around to explaining to me why it was and is completely wrong.

While it’s true that Bush could issue such an order, and fire anyone who failed to comply, and it’s true that doing so would either (1) get the bad guys off his staff right away or (2) set them up for impossible-to-defend perjury (and perhaps accessory-after) charges later, it is also true that doing so would complicate, rather than simplifying, the process of criminal investigation and prosecution. Under an Supreme Court case about a corruption investigation in the NYPD, when a governmental employer makes such a demand, the employee acquires a use-immunity for any material produced in response to that demand.

So if the President wanted to clean his own house, he could do so, but only by putting any subsequent criminal charges at risk. (Prosecutors would have to show an independent source for each piece of evidence; the equivalent rule for Congressional hearings is what got Ollie North off.)

Therefore I have been wrong to criticize Mr. Bush for failing to do so, and all the people who have been ignoring me have been correct.

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:

Comments are closed.