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Did Anyone Commit a Crime in Plame Game?

As noted here earlier, Kay Bailey Hutchinson and other Republicans are arguing that perjury isn’t a real crime, at least in the context of the Novak-Plame-Rove-Libby affair. As clumsily presented over the weekend, that approach is both wrongheaded and insulting. However, I’ve subsequently read two very eloquent pieces taking a more nuanced approach.

Michael Barone buttresses the long-held view of many conservatives that no crime was committed in “outing” Plame:

Consider the Intelligence Identities Protection Act. To violate it, you must disclose the name of a covert agent who has served abroad within the last five years, while knowing that that person was a covert agent. It does not appear that Plame was a covert agent who had served abroad within five years of the disclosure of her name to reporters. She was a desk officer at CIA headquarters at Langley at that time. This law was narrowly drafted and intended only to apply to people who purposefully endangered covert agents abroad. That is clearly not the case here.

The Espionage Act is less narrowly drafted. But it does set out specific things that cannot be disclosed — “information concerning any vessel, aircraft, work of defense, navy yard,” etc. The list does not include identity of CIA agents — there weren’t any in 1917 — which is why the drafters of the 1982 IIPA felt the need for a new law to protect a very limited class of covert operatives.

So it seems clear to me that an indictment under either of these statutes would be a gross injustice. It is a general principle of law that when the government wants to criminalize acts other than traditional common law crimes like murder or theft, it must set out with great specificity the conduct that is forbidden. To visit the rigors of criminal indictment, trial and punishment on someone who has done nothing that is specifically forbidden is unjust — the very definition of injustice.

This seems right to me. Administration critics counter this by pointing out that the CIA turned the matter over to the Justice Department, indicating that they thought Plame was a covert agent under the scope of the law. But for Rove or Libby or any other individual with access to classified material to have violated the law, they would have had to do so willfully.

Barone goes on:

In the absence of a violation of the underlying espionage acts, any indictment here arising from the course of the investigation would be, in my view, unjust and an abuse of prosecutorial discretion. It would also be, as the liberal commentator Jacob Weisberg has pointed out, a long step toward something like the British Official Secrets Act — a precedent that would staunch the flow of information from the government to the press and the people.

I find that argument problematic. However, Weisberg makes a strong case in a Slate piece from 18 October entitled, “Illiberal Prosecution — Why Democrats should take no comfort in the Plame case.”

At the heart of this misbegotten investigation is a flawed piece of legislation called the Intelligence Identities Protection Act. As Jack Shafer has written, this 1982 law is almost impossible to break because it requires that a government official unmask covert agents knowingly and with the intent of causing harm. The law was written narrowly to avoid infringing free speech or becoming an equivalent of Britain’s Official Secrets Act. Under the First Amendment, we have a right to debate what is done in our name, even by secret agents. It may be impossible to criminalize malicious disclosure without hampering essential public debate.

No one disputes that Bush officials negligently and stupidly revealed Valerie Plame’s undercover status. But after two years of digging, no evidence has emerged that anyone who worked for Bush and talked to reporters about Plame—namely Rove or Scooter Libby, the vice president’s chief of staff—knew she was undercover. And as nasty as they might be, it’s not really thinkable that they would have known. You need a pretty low opinion of people in the White House to imagine they would knowingly foster the possible assassination of CIA assets in other countries for the sake of retaliation against someone who wrote an op-ed they didn’t like in the New York Times.

Of course, with people out there thinking BushCo stole two elections, intentionally allowed the 9/11 attacks, and crashed the New Orleans levee in order to kill black people . . .

But in the hands of a relentless and ambitious prosecutor like Fitzgerald, the absence of evidence that you’ve broken a law just becomes an invitation to develop a case based on other possible crimes, especially those committed in the course of defending yourself, like obstruction of justice and making false statements. Call witnesses back enough times and you can usually come up with something. Special prosecutors never give up, because saying no crime was committed, after investing years and tens of millions of public dollars, counts as abject failure. And if gleanings from the grand jury room are to be believed, Fitzgerald may go beyond the Ken Starr-style foolishness to bring more creative crap charges of his own devising. Fitzgerald’s questions to Judith Miller suggest the possibility of indictments under the much broader and seldom used espionage law or Section 641 of the U.S. Code, which deals with the theft of government property. The Justice Department has used 641 in at least one case, to prosecute a Drug Enforcement Agency analyst who leaked a name from an agency file to the British press.

Already, Fitzgerald’s investigation has proved a disaster for freedom of the press and freedom of information. Reporters, editors, and publishers have been put on notice about the legal risk of using blind sources, which most consider an essential tool of news-gathering. Any ambiguity about a press privilege under federal law has been resolved, not in favor of the media. According to some anecdotal accounts, journalists’ failure to fully protect their sources in the Plame case has already chilled official leaks to reporters. Should Fitzgerald win convictions under the espionage law or Section 641, any conversations between officials and journalists touching on classified information could come become prosecutable offenses. That would turn the current chill into permafrost.

[…]

Bush officials were in the middle of an argument in which they were largely wrong, and which they lost, but in which they thought they were right and were trying to win.

In that context, Libby’s comments don’t look anything like retaliation against Joe Wilson—especially now that we know that Libby first mentioned Wilson and his wife to Judith Miller three weeks before Wilson went public with his op-ed piece. As for Rove, so far as we know, he spoke to only a single journalist—Matthew Cooper of Time. According to Cooper, Rove didn’t even know Plame’s name. If that’s a White House smear campaign, Rove’s skills are getting pretty rusty.

Weisberg’s take on what happens closely mirrors my own. I don’t think Rove or Libby would have intentionally outed a covert intelligence officer, let alone to make a minor point about an op-ed that few people would read, let alone one that wasn’t yet written.

I wrote a long post on this topic on September 28, 2003 and have written several since then as evidence trickled in. My initial take remains intact, however:

I certainly want to get more information before going that far. If, indeed, any Administration official leaked the name of an undercover CIA agent, risking not only her life but that of her sources, they should be imprisoned. If it can be demonstrated that President Bush knew of this, it would of course be an impeachable offense for which he should be removed from office. But let’s wait and see.

[…]

I wouldn’t think Karl Rove would do so a thing, either, of course, but he is rather ruthless in his zeal to protect George W. Bush. But, even if we were to ascribe the most Machiavellian of attributes to Rove–which I’m not quite ready to do, even though I’m no fan–this strikes me as a high risk, low reward action. As inclined as I am to believe that there was a WMD program extant in Iraq at the time we launched the war, the Novak piece didn’t do anything to make me say, Aha! It was rather innocuous. Indeed, given its placement in the piece, the Plame revelation apparently didn’t even strike Novak as particularly a big deal.

Fitzgerald’s indictments, if any are forthcoming, and accompanying revelations may change my view. For now, I remain very skeptical that any crimes –or even serious ethical breaches–were committed.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. odograph says:

    Let me ask you, when you say “I remain very skeptical that any crimes –or even serious ethical breaches–were committed.”

    Are you including the whole path to war?

    As I’ve said before, my central concern is for truth in a democracy, especially in justification of a war. Perhaps you could reassure me that you share that concern for those particlar ethics.

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  2. Anderson says:

    At this point, JJ is right insofar as we should just wait for the indictments. Plame was pretty clearly “covert” by some definition, but it could end up being a jury question whether she was “covert” according to the relevant statute.

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  3. odograph says:

    I don’t think we need to wait for indictments before we state allegence to the higher principles of democracy. Indeed, if democracy has fallen to “who gets indictments” … it’s pretty much gone off the tracks.

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  4. Herb says:

    There seems to be no end to how low the Democrats will go to get Bush. It is indeed strange that one big bunch of Democrats, Many Foreign Countries, The UN and many others firmly held that Iraq had WMD and now they take the stand that it was a big lie from Bush. The democrats don’t mention that their own were just as strong on the Iraq WMD as was Bush.

    As for Fitzgerld, he’s just another politically oriented prosicutor that is out to make a big name for himself and don,t care whos toes he steps on or who he hurts to achieve it.

    This Plame thing makes any good American sick. Sick of the poiticians and the games, Sick of the millions of dollars wasted for political gain and sick of those lying, kniving, Democrats.

    I don’t like murderers, thieves, rapists and liars, hence, I don,t like democrats.

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  5. odograph says:

    You know Herb, there was a day when Bob Hope could make a joke about Democrats … then a joke about Republicans … and then Democrats again.

    Saner times.

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  6. Brian says:

    If I recall correctly, a democrat did not appoint Fitzgerald (as they currently have no power). And, as James said, Fitzgerald has a sterling reputation.

    Herb, you are an idiot.

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  7. anjin-san says:

    Fitzgerald was chosen specifically because he has no political agenda. Now that it appears indictments are imminent, the Bushites do not hesitate to attack him personally and direct cries of foul at Democrats. (for what I am not sure) Sad indeed.

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  8. Wayne says:

    “Plame was pretty clearly “covert” by some definition”, perhaps if one takes anyone’s hair brain definition of what covert means. I suspect most people don’t have a clue what an overt, covert or clandestine agent is. From what I heard of Plame she was a covert in some paper classification given to her by some friends.

    If Rove-Libby or anyone purposely lied to a Grand Jury, they should be prosecuted. I thought that this should apply to Clinton when he lied but it didn’t turn out that way. Getting a fact wrong or not remembering every little detail doesn’t constitute perjury. None of us have a perfect memory. However if it can be show that anyone knowingly gave false testimony, persecute him or her.

    Obstruction of justice is a charge that can be abuse since it is a vague statute. I thought Martha Stewart was railroad on this charge even though she is a liberal. Law should be apply evenly to everyone.Are there any liberals out there who will agree to condemn any reporter or democrat that get indicted for violating these standard?

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  9. Rob says:

    I think there are some questionable assumptions that Ms. Plame was not a “covert agent” because she did not work outside the United States in the five years before the disclosure of her identity. First of all, I’m not sure that she did not work outside the U.S. from 1998 to 2003 and Mr. Barone simply asserts that to be true.

    Second, it is not necessary that the agent work outside the U.S. to be considered a “covert agent”, if that person was working as an agent of the foreign counterintelligence or foreign counterterrorism components of the Federal Bureau of Investigation. I don’t know whether Ms. Plame worked in this department or not, but the fact that she may not have worked outside the US is not dispositive of the issue.

    Take a look at United States Code, Title 50, Section 426(4), which includes the definition for covert agent. There are three separate alternative definitions (A), (B), and (C), and alternatives within each subdefinition (pay close attention to the relevant “and” and “or”):

    “The term ”covert agent” means –
    (A) a present or retired officer or employee of an
    intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency –
    (i) whose identity as such an officer, employee, or member is classified information, and
    (ii) who is serving outside the United States or has within the last five years served outside the United States; OR

    (B) a United States citizen whose intelligence relationship to the United States is classified information, and –
    (i) who resides and acts outside the United States as an agent of, or informant or source of operational assistance to, an intelligence agency, OR
    (ii) who is at the time of the disclosure acting as an agent of, or informant to, the foreign counterintelligence or foreign counterterrorism components of the Federal Bureau of Investigation; or
    (C) an individual, other than a United States citizen, whose past or present intelligence relationship to the United States is classified information and who is a present or former agent of, or a present or former informant or source of operational assistance to, an intelligence agency.

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  10. DL says:

    The real question is who appointed the judge?

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  11. Jack Ehrlich says:

    Anderson, Plame went to work at Langley every work day. She drove a gold Jaguar convertible. She worked at a desk as an analyst. Just how is that covert. You need to look up the word. I thought it was illegal for the CIA to act covertly within the United States. Was her cover at the CIA, working at the CIA?

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  12. Paul M. Neville says:

    There is one possible crime that has been overlooked. If Mr. Wilson was sent to Africa to conduct an investigation at the behest of the CIA how could he publish an article about his secret mission without the permission of the CIA? If he was not given permission did he not break some law by publishing his article?

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  13. Steve Veerhoff says:

    OK, I think that the issue of whether a crime was comitted or not is NOT the real issue. The act of having a grand jury investigate these proceedings creates another very chilling effect, and that is self censorship of the media.

    Regardless of your political viewpoints, the United States has had a very long history of an anatagonistic media towards the government. And rightly so. The media’s role is to question who or what philosophy is in power at that time, and offer commentary. There is rarely an absolute “truth” when it comes to reporting any event.

    The actions that have occurred in this case instead create a disincentive for journalists to actively seek out information, and act as a government watchdog. The threat of censorship through litigation and indictment IS real. And when THAT happens, we ALL lose, conservatives and liberals, for we then fail to hear about what happens, and instead end up with “government approved” PR.

    Smaller organizations, right leaning or left, will no longer take the risk to find “unnamed” sources if they know that it will end up being challenged in an expensive court battle. Nor will “unnamed” sources feel safe in reporting those items that they see as unethical, immoral or illegal.

    As Edmund Burke stated “The only thing necessary for the triumph of evil is for good men to do nothing.”

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  14. Former Intel says:

    Truly whether Plame was covert and thereby whether an outing is even possibly a violation of the Intelligence Identities Protection Act is a red herring, or at least something more suited for a court than the court of public opinion. It seems to me, as a former intelligence worker much more likely that her particular assignment in the CIA, WMD work, was a classified fact. When it comes to the revelation of classified facts by cleared people, the vagueness of potential criminality evaporates quickly. Ignorance is no excuse, revealing classified information is a crime, period.

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  15. odograph says:

    And when THAT happens, we ALL lose, conservatives and liberals, for we then fail to hear about what happens, and instead end up with “government approved” PR.

    In this case I think the grand jury process has helped us see through the “government approved” PR. (News reports just now are that Cheney told Libby/Rove “wife works at CIA.)

    The problem with a blanked protection or denouncement of unnamed sources is that scoundrels can be found on either side of the line. A scoundrel could be acting as an unnamed source, or be undone by an unnamed source.

    It would be nice to have a shield law … but only for the good guys. Unfortuntely I don’t thing can be written.

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  16. Hal says:

    It’s Fitz that’s going to determine whether there’s a crime, and what the charges are. Luckily for us all, we don’t have to rely on Barone’s legal abilities, nor James Joyner’s.

    From what we already know, Cheney is almost certainly Libby’s initial source. It seems almost certain that a large part of the motivation here was to protect Cheney – i.e. it’s a coverup. Thus, Cheney knew all along who leaked. It defies credulity to think that he hid this from Bush (and given the NY Daily News report of Bush chewing Karl n’ Libby’s hide over this, the probability of this is essentially zero). So, Bush knew as well and all the while he was lying to the American people about it.

    What a president! What a vice president!

    As I said when this first broke, James, what spills out of this is going to shock even you hard core, oh-so-jaded, inside the beltway types.

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