The New York Times,The Nation, et. al. Were Right!

When the Intelligence Identities Protection Act was being debated, the New York Times, the Washington Post, The Nation, and like-minded publications warned that if passed it would criminalize conversations between government officials and reporters, and send some of them to jail. They were right. Of course, then they opposed the legislation for those reasons. Now they support it for those reasons.

Given the accuracy of their original opposition, I am reprinting what I wrote on this matter on October 5, 2003:

Plame Game

Because of all the hoopla about (allegedly) “high administration officials” leaking to (at least) six reporters in addition to Robert Novak that Joseph Wilson’s wife, Valerie Plame, is an employee of the CIA, Ms. Plame is now probably the best known (formerly) secret agent since James Bond.

Whether this leak (not to mention the attempted leaks) was illegal is being investigated by the Justice Dept., but don’t hold your breath waiting for any indictments. The Intelligence Identities Protection Act is written in such a way that it is virtually impossible to convict anyone of violating it, now that rogue former agent Philip Agee and Louis Wolf, former editor of the Covert Action Information Bulletin — both professional name namers at whom the act was targeted — are out of business. It’s not even completely clear Ms. Plame was an “operative” of the sort covered by the act, and it is less clear that the leakers knew the agency was affirmatively trying to protect her identity or that there was any intent to interfere with foreign operations.

What I find most interesting about this affair is the — not to put too fine a point on it — hypocrisy, fed by amnesia, of many of those in the scalp-hunting posse. When what became the Intelligence Identities Protection Act was being debated in 1981 and 1982 many of those organizations that are now most vociferous in their condemnation of the leak — a leak David Corn of The Nation, for example, has described as a “thuggish act” and as a “quite ugly and brutish act” — were then calling the proposed legislation evil, wrongheaded, and unconstitutional because it would criminalize the very sort of exposes that have just occurred.

David Corn, Washington bureau chief of The Nation, has recently garnered some nice bouquets from the major media for pushing for investigations while others were silent. Howard Kurtz of the Washington Post describes Corn as “one of the few reporters to criticize Novak’s column” when it first appeared, and the renowned Paul Krugman of the New York Times says Corn was one of the “few honorable exceptions” to the media silence that greeted Novak’s initial expose.

So far as I’ve seen, however, no one has mentioned the fact that in 1981 and 1982 The Nation was adamantly critical of the legislation under which it now wants people prosecuted. The threat of this legislation was covered too frequently to cite at length, but a good example of the magazine’s position is provided by the issue of March 14, 1981, which featured a long denunciation of the proposed bill by Philip Agee (whose 1975 book, INSIDE THE COMPANY, was one of the provocations that led to the legislation), followed by comments from a panel of Nation favorites on civil liberties and intelligence activities.

In introducing the issue the Nation editors described the proposed legislation as “extremely dubious and dangerous” (p. 295), a view none of the included authors challenged. Agee argued that

it could easily be applied against the mainstream

media once the “traitors” are silenced. The long-run result

would be an end to practically all extra-official exposures in

the media of scandals and abuses based on information

from insiders-which is where almost all the important ex-

posures originate. (295)

Noted civil libertarian Aryeh Neier agreed.

Philip Agee’s argument against the Intelligence Identities Protection bill is thoroughly persuasive…. [The First Amendment] flatly forbids interference with revelations of any activities of government, including the identities of those acting for the government. (300)

Noted author Thomas Powers acknowledged that “Philip Agee is an intemperate man” and that he “makes enemies easily.” Nevertheless, Powers that Agee “is right when he says this is a bad law — a first step on the road to an Official Secrets Act.” (299)

Floyd Abrams, noted First Amendment lawyer who often represents the New York Times, was quoted by another contributor, Frank Donner, as having testified that “there is no legal way to phrase the ban without violating the First Amendment.” (301)

Perhaps the most outspoken contributor was Yale law professor Thomas I. Emerson, author of a leading First Amendment text and other works, who wrote that

it is plain that the proposed legislation violates both the letter and the spirit of the First Amendment. Free and open discussion of public issues lies at the heart of that constitutional guarantee. The fact that such discussion may “impair or impede” the operations of government is no justification for imposing restrictions upon the right of expression. The government may protect itself by imposing criminal sanctions upon those who obstruct or interfere with its functioning by violence or coercion. It can seek to safeguard legitimate government secrets by controlling its own officials, employees and agents. But it cannot forbid, curtail or interfere with the discussion of government affairs by private citizens. (300)

Perhaps one of the reasons that the New York Times and Washington Post have not mentioned this strong opposition to the names of agents legislation is that … the New York Times and Washington Post were almost as outspoken in their opposition as The Nation.

Again, there were too many editorials to cite, but here are some samples:

  • Tom Wicker of the NYT wrote that the legislation would “make it more difficult for the press to monitor agency activities and for churches, universities and other institutions to keep undercover agents from infiltrating their staffs.” (4/23/82, p. 27)

  • NYT editorial, 3/4/82, p. 22: The closer the Senate gets to voting on the “Intelligence Identities Protection Act,” the clearer it becomes that this bill dangerously exceeds its announced purpose….

    If there was any doubt that the act extends that far, it has now been put to rest. Senator John Chafee, a chief sponsor, has clarified the bill’s threat to conventional journalism – and public discussion generally.

    Asked whether a prosecutor could use the bill against reporters and news organizations for exposing crimes and abuses by agents and informants, the Senator had this reply: ‘‘I’m not sure that The New York Times or The Washington Post has the right to expose names of agents any more than Mr. Wolf or Mr. Agee,’’ two of the bill’s main targets. ‘‘They’ll just have to be careful about exposing the names of agents.’’

    Senator Chafee makes the bill’s danger explicit without seeming to understand its cost to public discussion of security issues….

  • WaPo editorial, 10/27/81, p. A14: CONGRESS IS INTENT upon ending the practice of a few spoilers’ exposing the names of the United States’ secret intelligence agents. This is a worthy purpose, but it gives rise to a troubling complication. The two main legislative proposals offered to punish namers of names would penalize publication, including in some instances publication of unclassified information available in the public domain, and thus both of the proposals would cut into the integrity of the First Amendment.
  • WaPo editorial, 9/25/81, p. A30: CAUGHT UP IN a frenzy, the House took a nasty swipe at the First Amendment the other day. A bill was before it intended to cope with the ugly practice of revealing the names of secret agents in order to spoil American foreign intelligence activities…. It would have made it a felony to publish an agent’s name if the intent was to impair American intelligence. This did not sit well, in our view, with the First Amendment’s guarantee of free speech.

You get the idea. Everyone (with the exception of Philip Agee, Louis Wolf, and their supporters) agreed with the effort to prevent the naming of undercover operatives engaged in dangerous assignments in the field, but there was widespread worry, not limited to The Nation and its liberal/left audience, that such legislation posed a great risk to legitimate criticism of intelligence practices. In my opinion, the current Plame game proves those fears well-founded.

Virtually lost in the din of denunciation of the Plame naming has been Robert Novak’s initial argument, and the reason he mentioned her name — that Plame, who was known in the CIA as a critic of the Bush administration policies, played an important role in selecting her husband, also known as a Bush critic, for the important mission to Africa to check on the rumors of Saddam’s activities there. That fact, if it is a fact, is indeed newsworthy, given the reported tension between the CIA and the White House, and could not have been made without mentioning Plame’s role. Plame’s outing may well have ended her secret career, but it exposed her to no danger and seems to have interfered with no foreign policy initiatives. The Intelligence Identities Protection Act was not designed to protect careers and pensions.

As a result of Novak’s initial expose it has now come to light that Plame, while an “employee” of a CIA front company, “gave $1000 to Al Gore in the 2000 election.” Her husband, Joseph Wilson,

was originally listed as having given $2,000 to Gore during the primary campaign in 1999, but the donation, over the legal limit of $1,000, was “reattributed” so that Wilson and Plame each gave $1,000 to Gore. Wilson also gave $1,000 to the Bush primary campaign, but there is no donation listed from his wife.

Is that “reattributing” legal? But I said we were forgetting legalities here….

In one of the more inane comments about the naming, today the WaPo ombudsman, Michael Getler, wrote that “[m]y view is that the possibility that Wilson’s wife had played some role in his assignment was fair game, but that use of her name was not.” Getler seems to think that if only Novak had written “Wilson’s wife” instead of “Valerie Plame” everything would have been O.K. He seems to be unaware that the legislation criminalizes identifying agents, not simply naming them. The name of Wilson’s wife was hardly a secret, after all.

Perhaps the Nation and NYT and WaPo newsies should go back and read their own papers’ editorials on this legislation. A little history never hurt anyone.

UPDATEGlenn Reynolds writes today:

From what we’re hearing — especially from critics of the Administration — this wasn’t one of those leaks that does good. It’s a major threat to national security, we’re told, and it was done purely for spite. If that’s true, discouraging similar leaks in the future would seem to be a benefit, not a drawback. This isn’t a “whistleblower” leak, where somebody exposes government misconduct on condition of anonymity. Here, it’s the leak itself that’s the misconduct, and it’s the anonymity that let it happen, and that is keeping the leaker from being punished for conduct that everyone seems to regard as wrong.

I’m not altogether convinced. Insofar as the non-leak aspects of the story, i.e., the story of which the leak was a part, concerns tension between the CIA and the White House over Iraq policy, then the CIA choosing someone for the sensitive mission of investigating Saddam’s activities in Niger who was known to be highly skeptical of Bush’s policies and enlisting his wife to help recruit him (even assuming, for the sake of argument, that it was not his wife who suggested him in the first place, which is what Novak reported) was, if not “misconduct” by the CIA, at least conduct that deserved exposure.

Say What? (8)

  1. spinoneone March 7, 2007 at 5:22 pm | | Reply

    So here we have the classic case of no “crime” having been committed [a la Martha Stewart] but someone was dumb enough not to hire a good lawyer before testifying to a grand jury and being absolutely stupid in saying anything at all to the FBI. The egregious excess of the special prosecutor notwithstanding, Libby just blew it [no pun intended].

  2. Cobra March 9, 2007 at 12:06 am | | Reply

    John writes:

    >>>”As a result of Novak’s initial expose it has now come to light that Plame, while an “employee” of a CIA front company, “gave $1000 to Al Gore in the 2000 election.” Her husband, Joseph Wilson”

    Let’s examine this a bit. What was that “CIA front company” Valerie Plame was involved with?

    >>>”The leak of a CIA operative’s name has also exposed the identity of a CIA front company, potentially expanding the damage caused by the original disclosure, Bush administration officials said yesterday.

    The company’s identity, Brewster-Jennings & Associates, became public because it appeared in Federal Election Commission records on a form filled out in 1999 by Valerie Plame, the case officer at the center of the controversy, when she contributed $1,000 to Al Gore’s presidential primary campaign.

    After the name of the company was broadcast yesterday, administration officials confirmed that it was a CIA front. They said the obscure and possibly defunct firm was listed as Plame’s employer on her W-2 tax forms in 1999 when she was working undercover for the CIA. Plame’s name was first published July 14 in a newspaper column by Robert D. Novak that quoted two senior administration officials.”

    http://www.washingtonpost.com/ac2/wp-dyn/A40012-2003Oct3?language=printer

    And what pray tell did the Bush Administration find so damaging about having this CIA front company being exposed? What could this Brewster Jennings front have possibly been involved with?

    >>>”In any case, as prosecutor Fitzgerald considers whether to charge Karl Rove with perjury, obstruction of justice or worse, MSNBC has learned new information about the damage caused by the White House leaks. Intelligence sources says Valerie Wilson was part of an operation three years ago tracking the proliferation of nuclear weapons material into Iran. And the sources allege that when Mrs. Wilson’s cover was blown, the administration’s ability to track Iran’s nuclear ambitions was damaged as well.

    The White House considers Iran to be one of America’s biggest threats.”

    –MSNBC’s David Shuster, reporting for “Hardball”

    http://www.msnbc.msn.com/id/12583811/

    We’re going to find out about what the official status of Valerie Plame-Wilson is/was very shortly. Rep. Henry Waxman will be holding a congressional investigation and she’s the first witness. I’m pretty sure CIA officials will be testifying there under oath as well.

    But those of you out there who think that this whole affair was much ado about nothing, re-read again, for emphasis, the last three sentences from Shuster’s quote, and tell me why outing Valerie Plame, and her front company Brewster Jennings was “good” for America.

    –Cobra

  3. John Rosenberg March 9, 2007 at 8:24 am | | Reply

    Cobra – I find it truly touching that you have such faith in the unsupported assertions of unamed “sources” that the CIA finds it convenient to trot out in its turf wars with a president. And being part of an “operation” does not mean that Ms. Plame fell under the defintion of “covert agent” specified in the IIAPA within the requisite time period. In other words (let me make this simple) “naming” her was no crime, responding to her husband’s false testimony about his mission to Niger (as confirmed by the presidential commission and quoted by the Post, which you obviously believe is infallible in these matters) was also no crime. That does not mean that Libby did not commit perjury; only that there was no underlying conspiracy to cover up a non-existant crime.

    You obviously missed this Washington Post (aka “Cobra’s Bible) editorial that concluded, along with other damning statements about this misguided prosecution, that “The trial has provided convincing evidence that there was no conspiracy to punish Mr. Wilson by leaking Ms. Plame’s identity — and no evidence that she was, in fact, covert.”

  4. Cobra March 9, 2007 at 10:31 pm | | Reply

    Hmmmm….

    >>>”A classified State Department memorandum central to a federal leak investigation contained information about CIA officer Valerie Plame in a paragraph marked “(S)” for secret, a clear indication that any Bush administration official who read it should have been aware the information was classified, according to current and former government officials.

    Plame — who is referred to by her married name, Valerie Wilson, in the memo — is mentioned in the second paragraph of the three-page document, which was written on June 10, 2003, by an analyst in the State Department’s Bureau of Intelligence and Research (INR), according to a source who described the memo to The Washington Post.

    The paragraph identifying her as the wife of former ambassador Joseph C. Wilson IV was clearly marked to show that it contained classified material at the “secret” level, two sources said. The CIA classifies as “secret” the names of officers whose identities are covert, according to former senior agency officials.

    Anyone reading that paragraph should have been aware that it contained secret information, though that designation was not specifically attached to Plame’s name and did not describe her status as covert, the sources said. It is a federal crime, punishable by up to 10 years in prison, for a federal official to knowingly disclose the identity of a covert CIA official if the person knows the government is trying to keep it secret.”

    http://www.washingtonpost.com/wp-dyn/content/article/2005/07/20/AR2005072002517.html

    Seems like there’s a wee bit of a disconnect between the Post’s reporters and the Post’s editorial writers, but that happens at the Times and the WSJ as well.

    To be honest, I’m going to be patient. Next Friday is when Valerie Plame Wilson testifies before the House, and the subsequent Wilson lawsuit against the Vice President should bring a WHOLE HOST of sworn testimony from officials to determine what Plame’s status was and what her job entailed.

    My question still stands to you, however.

    Tell me why outing Valerie Plame, and her front company Brewster Jennings was “good” for America?

    –Cobra

  5. John Rosenberg March 9, 2007 at 11:25 pm | | Reply

    She wasn’t “outed” because she wasn’t a covert operative. Very simple. And if you had followed this closely you would know that Plame was “outed” (I use in deference to your incorrect usage) not by Libby but by Richard Armitage. If you’re right, why was he not prosecuted?

    “Leaking,” even, yes, “secret” information is not a crime. We have no Official Secrets Act.

  6. Cobra March 10, 2007 at 10:57 am | | Reply

    John writes:

    >>>She wasn’t “outed” because she wasn’t a covert operative. Very simple. And if you had followed this closely you would know that Plame was “outed” (I use in deference to your incorrect usage) not by Libby but by Richard Armitage. If you’re right, why was he not prosecuted?

    “Leaking,” even, yes, “secret” information is not a crime. We have no Official Secrets Act.”

    You get me wrong sir. I’m not carrying water for Scooter, Armitage or anybody else in the Bush Administration. The CIA ITSELF wanted the Justice Department to investigate this incident. And we will ALL most CERTAINLY find out the true status of Valerie Plame next week under oath, and during the subsequent Cheney/Libby lawsuit, won’t we?

    As far as your “leaks aren’t a crime” comments are concerned, I don’t think President Bush and Attorney General Alberto Gonzales share your beliefs when it comes to the NSA wiretapping, Secret Prisons and US torture methods.

    And you still haven’t answered my question.

    Tell me why outing Valerie Plame, and her front company Brewster Jennings was “good” for America?

    –Cobra

  7. John Rosenberg March 11, 2007 at 9:38 am | | Reply

    Cobra – Here’s a short refresher course (or more likely, introduction) for you on the Libby issues, generously provided by Robert Novak this morning. Since this is only an exerpt, you should, however, read the whole thing.

    In fact, [Valerie Plame’s status] being classified — that is, that her work was a government secret — did not in itself meet the standard required for prosecution of the leaker (former Deputy Secretary of State Armitage) under the Intelligence Identities Protection Act of 1982. That statute limits prosecution to exposers of covert intelligence activities overseas, whose revelation would undermine U.S. intelligence. That is why Fitzgerald did not move against Armitage….

    On Fox’s “Hannity & Colmes” Tuesday night, super-lawyer David Boies said Fitzgerald never should have prosecuted Libby because there was no underlying criminal violation. Boies scoffed at Fitzgerald’s contention that Libby had obstructed him from exposing criminal activity. Boies, who represented Al Gore in the 2000 election dispute, is hardly a Bush sympathizer. But neither is he a Democratic partisan trying to milk this obscure scandal.

  8. Cobra March 16, 2007 at 10:56 pm | | Reply

    As I said earlier, I’m very patient. My office was closed today due to weather, so I popped a nice bowl of Orville Redenbacher’s Kernel Korn, clicked on C-SPAN and watched the spectacle.

    REP. HENRY A. WAXMAN, D-CALIF. CHAIRMAN

    >>>”This hearing is being conducted in open session. This is appropriate, but it is also challenging. Ms. Wilson was a covert employee of the CIA. We cannot discuss all of the details of her CIA employment in open session.

    I have met, personally, with General Hayden, the head of the CIA, to discuss what I can and cannot say about Ms. Wilson’s service. And I want to thank him for his cooperation and help in guiding us along these lines…

    …But General Hayden and the CIA have cleared these following comments for today’s hearing.

    During her employment at the CIA, Ms. Wilson was undercover. Her employment status with the CIA was classified information, prohibited from disclosure under Executive Order 12958.

    At the time of the publication of Robert Novak’s column on July 14, 2003, Ms. Wilson’s CIA employment status was covert. This was classified information.

    Ms. Wilson served in senior management positions at the CIA, in which she oversaw the work for other CIA employees and she attained the level of GS-14, Step 6, under the federal pay scale.

    Ms. Wilson worked on some of the most sensitive and highly secretive matters handled by the CIA.

    Ms. Wilson served at various times overseas for the CIA.

    WAXMAN: Without discussing the specifics of Ms. Wilson’s classified work, it is accurate to say that she worked on the prevention of the development and use of weapons of mass destruction against the United States.”

    http://www.washingtonpost.com/wp-srv/politics/special/plame/plame_transcript_031607.html

    Bush appointee General Hayden of the CIA cleared those statements. He is the highest source possible from that organization.

    Under Oath, Ms. Valerie Plame Wilson had some interesting things to say as well:

    >>>”I’m grateful for this opportunity to set the record straight. I served the United States loyally and to the best of my ability as a covert operations officer for the Central Intelligence Agency.

    I worked on behalf of the national security of our country, on behalf of the people of the United States until my name and true affiliation were exposed in the national media on July 14, 2003, after a leak by administration officials.

    Today, I can tell this committee even more. In the run-up to the war with Iraq I worked in the counter proliferation division of the CIA — still as a covert officer whose affiliation with the CIA was classified.

    I raced to discover solid intelligence for senior policymakers on Iraq’s presumed weapons of mass destruction programs.

    While I helped to manage and run secret worldwide operations against this WMD target from CIA headquarters in Washington, I also traveled to foreign countries on secret missions to find vital intelligence.

    I loved my career because I love my country. I was proud of the serious responsibilities entrusted to me as a CIA covert operations officer and I was dedicated to this work.”

    http://www.cnn.com/2007/POLITICS/03/16/plame.statement/

    John, now you have on the record statements cleared by the head of the CIA and the sworn testimony of the CIA operative in question.

    I don’t have a problem believing THEM over editorial writers, talk show hosts, pundits and bloggers who have absolutely no security classification or debriefings at CIA HQ.

    Again, John, why was outing Valerie Plame and her front company Brewster Jennings good for America?

    –Cobra

Say What?