Posted on 12/15/2004 2:44:07 PM PST by swilhelm73
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.
This is especially true considering the fact that Wilson is on the payroll of a Saudi funded think tank (read front) as part of their policy of buying ex-diplomats.
What role did Wilson's bosses in Riyadh have in sending him and/or his faulty "investigation"? It certainly could not have more perfectly meshed with what the Saudis wanted. This is most certainly not an academic matter either as in the similar case of the Nigerian forgeries we now know they were created by the French government.
bttt
First of all, who is Marshall? Secondly, perhaps Fitzgerald's investigation has led him into unexpected areas and the crimes being investigated are not what people assume they are.
One can always hope...but our government doesn't appear to be doing very much about such Leftwing subterfuge even when given an open and shut case (Sandy Burglar).
Indeed, nearly all discussion has assumed as much. But some (I modestly raise my hand) have long stated it is clear (though for different reasons than posited here) that it was not a crime--the "leaking of Plame's 'name'".
As to this:
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?
I submit the prosecutor is "on the loose" investigating a different aspect of the Plame/Wilson machinations to paint President Bush as a liar. Indeed, Fitzgerald is investigating another case regarding the media and a leak of classified information that was then used to tip-off an Islamic charity that a raid was coming down. Fitzgerald has flat out told the NY Times they know for a fact that their reporter, Philip Shenon, did just that and that as a result the charity destroyed evidence.
I've long posted that I hope to see exactly that.
BTW, Marshall is really tight with Joe Wilson and 60 Minutes II was all set to resurrect this story (the "Bush lied about yellowcake" story, using the forged documents angle) before the election using Marshall as their main source. Alas, they shelved the story after getting caught airing fake documents.
Well, I'm hoping that the Sandy Berger crime will be addressed once a new Attorney General is sworn in. I fully expect the investigation has indeed been ongoing and I firmly believe they are interested in getting not just the obvious Berger culprit, but those who colluded with him...
Plame Ping
I presume Goldberg is referring to Joshua Marshall and his Talking Points Memo blog. Marshall, a liberal, has crossed swords with Goldberg several times on this story.
Secondly, perhaps Fitzgerald's investigation has led him into unexpected areas and the crimes being investigated are not what people assume they are.
Bingo! The questions regarding the Plame disclosure were probably resolved in the first 48 hours of the probe. Ever since, Fitzgerald's grand jury has been investigating the infinitely more important (and dangerous) phenomenon of leaks from the CIA.
Or is it important enough to require an official CIA Defender?
Oh, that was so nice of you to think of him (her?).
I'll leave it up to you.
LOL
"First of all, who is Marshall?"
He's a blogger, a bit of an insider. Wilson and cohorts fed him disinformation after disinformation. He became the Drudge-like leaking machine.
Problem was, it was mostly untrue. Hilarity ensued - he kept posing innuendo after innuendo as if he were a privileged Woodwar and Bernstein. Thing was, he was a dupe, but couldn't believe it so.
He had a later life trying to explain how the Bi-partisan Senate Intel report blasting Wilson and Plame was all wrong. The voice of Wilson's dissembling explanations rang strong in his journalistic voice.
The story pushed by Wilson and Marshall (and much of the MSM) has always left me speechless.
Supposedly, with access to files on Plame and Wilson, the White House chose to hurt him publicly, not by pointing out his ties to the Saudis, Clinton, Kerry, or even his previous inane statements. The White House instead went public with the fact his wife works for the CIA.
Which would cost him exactly nothing in the court of public opinion, and since his wife is within the US, not endanger her in the least, though it might endanger other American agents she has worked with.
And this conspiracy theory is supposed to make sense?!?
No. But it was something the MSM could get all inflamed and self-righteous about.
The only question that really needs to be resolved is which master was Wilson serving when he went public with his Niger report. Was it the Saudis or the Democrats?
Or, perhaps, both?
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