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:
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.
UPDATE — Glenn 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.