Why have so many people rushed to assume that a crime was committed when
someone "in the administration" gave columnist Robert D. Novak
the name of CIA "operative" Valerie Plame? Novak published her
name while suggesting that nepotism might have lurked behind the CIA
assignment of her husband, Joseph Wilson, to a job for which he was
credentially challenged: The agency sent him to Niger to determine whether
Iraq was interested in acquiring uranium from that country, although he
was an expert neither on nuclear weapons nor on Niger.
Journalists are being threatened with jail for not testifying who gave
them information about Plame -- even journalists who did not write about
Plame but only talked with sources about her. Ironically, the special
prosecutor has pursued this case with characteristic zeal after major
publications editorialized that a full investigation and prosecution of
the government source was necessary. The Atlanta Journal-Constitution even
claimed that the allegations came "perilously close to treason."
It's time for a timeout on a misguided and mechanical investigation in
which there is serious doubt that a crime was even committed. Federal
courts have stated that a reporter should not be subpoenaed when the
testimony sought is remote from criminal conduct or when there is no
compelling "government interest," i.e., no crime. As two people
who drafted and negotiated the scope of the 1982 Intelligence Identities
Protection Act, we can tell you: The Novak column and the surrounding
facts do not support evidence of criminal conduct.
When the act was passed, Congress had no intention of prosecuting a
reporter who wanted to expose wrongdoing and, in the process, once or
twice published the name of a covert agent. Novak is safe from indictment.
But Congress also did not intend for government employees to be vulnerable
to prosecution for an unintentional or careless spilling of the beans
about an undercover identity. A dauntingly high standard was therefore
required for the prosecutor to charge the leaker.
At the threshold, the agent must truly be covert. Her status as undercover
must be classified, and she must have been assigned to duty outside the
United States currently or in the past five years. This requirement does
not mean jetting to Berlin or Taipei for a week's work. It means permanent
assignment in a foreign country. Since Plame had been living in Washington
for some time when the July 2003 column was published, and was working at
a desk job in Langley (a no-no for a person with a need for cover), there
is a serious legal question as to whether she qualifies as
"covert."
The law also requires that the disclosure be made intentionally, with the
knowledge that the government is taking "affirmative measures to
conceal [the agent's] relationship" to the United States. Merely
knowing that Plame works for the CIA does not provide the knowledge that
the government is keeping her relationship secret. In fact, just the
opposite is the case. If it were known on the Washington cocktail circuit,
as has been alleged, that Wilson's wife is with the agency, a possessor of
that gossip would have no reason to believe that information is classified
-- or that "affirmative measures" were being taken to protect
her cover.
There are ways of perceiving whether the government was actually taking
the required necessary affirmative measures to conceal its relationship
with Plame. We can look, for example, at how the CIA reacted when Novak
informed the press office that he was going to publish her name. Did the
general counsel call to threaten prosecution, as we know has been done to
other reporters under similar circumstances? No. Did then-Director George
Tenet or his deputy pick up the phone to tell Novak that the publication
of her name would threaten national security and her safety, as we know is
done when the CIA is serious about prohibiting publication? No. Did some
high-ranking government official ask to visit Novak or the president of
his newspaper syndicate to talk him out of publishing -- another common
strategy to prevent a story? No.
Novak has written that the CIA person designated to talk with him replied
that although Plame was probably not getting another foreign assignment,
exposure "might cause difficulties if she were to travel
abroad." He certainly never told Novak that Plame would be
endangered. Such a meager response falls far legally shy of
"affirmative measures."
There is even more telling CIA conduct about Plame's status. According to
the Senate Select Committee on Intelligence's "Report on the U.S.
Intelligence Community's Prewar Intelligence Assessments on Iraq,"
when the agency asked Plame's husband to take on the Niger assignment, he
did not have to sign a confidentiality agreement, a requirement for just
about anybody else doing work for an intelligence agency. This omission
opened the door for Wilson to write an op-ed piece for the New York Times
describing his Niger trip. Did it not occur to our super sleuths of
spycraft that a nationally distributed piece about the incendiary topic of
weapons of mass destruction -- which happens to be Wilson's wife's
expertise -- could result in her involvement being raised?
The special prosecutor and reporters should ask Chief U.S. District Judge
Thomas Hogan, who is overseeing the grand jury, to conduct a hearing to
require the CIA to identify all affirmative measures it was taking to
shield Plame's identity. Before we even think about sending reporters to
prison for doing their jobs, the court should determine that all the
elements of a crime are present.
Victoria Toensing was chief counsel to the Senate intelligence
committee from 1981 to 1984 and served as a deputy assistant attorney
general in the Reagan administration. Bruce Sanford is a Washington lawyer
specializing in First Amendment issues.
