Yet Another Plame Post

It has been rightfully suggested in the comments of my previous post on this issue that the Intelligence Identities Protection Act was not the only statute that could have been used to charge Lewis Libby for leaking the identity of Valerie Plame to columnist Robert Novak. Because my posts on this issue have been long-winded, I̢۪m putting the bulk of it below the fold. As usual, if you̢۪re uninterested in this topic, simply move along.

So if not the IIPA, which statute would be appropriate? Is it the “commenter Ken says that leaking her name is a crime” statute? Or the “occupation of Iraq is bad” act? How about the catch-all “Haliburton is guilty of everything” act? Wait, I’ve got it, it’s the “they did they same thing to Clinton” law.

Ok, seriously, there is another option that special prosecutor Patrick Fitzgerald could have pursued, and that would be to charge Libby with a violation of the Espionage Act. It has been rightfully pointed out that many (including yours truly) have dismissed the Espionage Act but based on conflating its requirements with those of the IIPA. But these are the only two laws that have been mentioned anywhere, and Fitzgerald’s silence in this matter is concerning and contributes to the confusion. His first responsibility as prosecutor should have been to disclose the precise crime which he believed was violated. Anything less than this lends credibility to the accusation that his investigation was a fishing expedition.

So in light of this other prosecutorial option, let me recant my previous statement that this investigation should have taken just one day. Now I am convinced that it might have taken two.

I have already explained the reasons why Plame̢۪s status at the CIA make a violation of the IIPA impossible, so I won̢۪t rehash it here. But perhaps her outing was a violation of this other statute.

The Espionage Act was drawn up during World War I with the explicit aim of punishing those who would divulge national security secrets to anyone who might use the information against the United States. [Note that the IIPA was passed in 1982 — against the wishes of liberals and the ACLU — as a means of extending the Espionage Act to cover people rather than just information and documents. This is why it is natural to assume that Fitzgerald would be looking for an IIPA violation]

As with the IIPA, the Espionage Act has legal requirements. Section (d) precludes anyone from communicating any “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation …” This could possibly apply to Libby telling Novak that Joe Wilson was sent to Niger only because his wife worked on the WMD desk at the CIA. Again, it all depends on Plame’s employment status.

Let me reiterate my central premise here: Fitzgerald was not charged with “finding out what happened,” his duty was to determine whether a crime was committed. To do so, under the requirements of the Espionage Act his first order of business would have been to call the CIA and ask whether putting Plame’s name into the public arena “could be used to the injury of the United States or to the advantage of any foreign nation.”

It does not seem that a reasonable person could conclude such a thing. Remember, Novak called the CIA prior to the publication of his column and they merely requested that he not publish Plame̢۪s name, when they were well within their rights to demand that he not do so. Is it reasonable to believe that Plame̢۪s identity was an issue of national security but the CIA refused to protect it?

Second, in Wilson’s Middle East Institute biography (now deleted), he named his wife as Valerie Plame. Is it at all logical to believe that the CIA would have a super-secret agent working for them who operated under her real name, and if so that Wilson would offer it in a public bio? Or perhaps she worked under her real name but used some other agency for diplomatic cover; of course then her job status would hardly fall under the parameters of the Espionage Act (which is precisely why the IIPA was deemed necessary: to determine who is and who is not “covert”).

Please remember that the argument I̢۪m making here is exactly the same that many made in defense of Judith Miller, and it was as correct then as it is now.

So once again I will assert that what we have here is a serial liar in Joe Wilson, who seemed to want to play politics with the big boys over the war in Iraq, and the administration used the truth to destroy the credibility of virtually everything he has said. Was this a good thing? No, of course not. But Wilson̢۪s crocodile tears over the outing of his wife̢۪s job status are not reason enough for Lewis Libby to spend one minute in jail.

FILED UNDER: General, ,
Leopold Stotch
About Leopold Stotch
“Dr. Leopold Stotch” was the pseudonym of political science professor then at a major research university inside the beltway. He has a PhD in International Relations. He contributed 165 pieces to OTB between November 2004 and February 2006.

Comments

  1. odograph says:

    Shrug. You are angry with Wilson, but here you are doing another post about the roots of the war in Iraq.

    You’re his … servent (to make the polite choice in words).

  2. adfawe says:

    what we have here is a serial liar in Joe Wilson

    What were Wilson’s lies?

  3. McGehee says:

    What were Wilson’s lies?

    Welcome to 2005. Where have you been the last two years?

  4. ken says:

    Leopold, is it your position that giving classified information to our enemies by means of a leak to the press is NOT a crime?

    You seem to think that classified information is no more protected by the law than is your Aunt Marges cassarole recipe.

    Sorry to break this to you but it IS a crime to leak classified information. Duh.

    Your position, and that of other conservatives here, is convincing us that we cannot trust you guys with our nations national defense secrets.

  5. adfawe says:

    Welcome to 2005. Where have you been the last two years?

    Glibness isn’t helpful. Where there lies in his July 6 2003 NY Times piece? If so, what are they?

  6. Alan says:

    Hello Leopold,

    Your central premise is wrong. As Fitzgerald clearly explained in the press conference, his job was FIRST to investigate what happened, AND ONLY THEN determine if a crime were committed, could be proven and should be charged.

    Classified information was improperly disclosed. This was certainly worthy of investigation.

    Libby lied and obstructed justice, most likely to cover up another crime. Fitzgerald hinted he could have pressed charges for one or more underlying crimes, but decided the indictments for perjury and obstruction of justice were sufficent to vindicate the public interests.

    I understand you are trying to convince the world there should not have been an investigation, and the perjury and obstruction of justice by a member of the White House staff are no big deal. I don’t think many people are going to agree with you.

    BTW, Libby is going to spend little or no time in jail. His lawyers will delay the proceedings as long as possible, then he’ll be pardoned shortly after the 2008 election.

  7. ultraw says:

    Let me reiterate my central premise here: Fitzgerald was not charged with “finding out what happened,” his duty was to determine whether a crime was committed. To do so, under the requirements of the Espionage Act his first order of business would have been to call the CIA and ask whether putting Plame’s name into the public arena “could be used to the injury of the United States or to the advantage of any foreign nation.”

    I’m sorry, but I believe you are incorrect. You continue to presume – falsely – that the only possible crime was the revelation of Plame’s covert status, and settling that was the sole object of the investigation. That’s simply not true.

    I would suggest that you have allowed yourself to become too hung up with the press accounts and the political spin without paying sufficient attention to what the CIA actually asked for and how an investigating prosecutor would approach the case.

    Put yourself in the CIA’s place for a moment – back in time before we knew all we do now. They certainly wouldn’t be happy to have one of their agents outed, but their greater concern would have been that they didn’t know how it happened. They probably had their suspicions, but after an internal investigation evidently was unable to pin that down, their concern was understandebly raised to the level of asking for Justice Department assistance with a criminal investigation.

    It was a security breach, Leopold. And they didn’t know who or how. Was somebody inside the agency talking? Someone in the White House? The State Department? Or perhaps documents were being intercepted? Until they knew what happened they could not know what kind of problem they had. How big it was. What to do about it. Not even what it’s nature was.

    That’s what Fitzgerald was asked to unravel. He most definitely *was* asked to find out what happened. And he would do it without presuming to know the only possible answers in advance. And certainly not from the frame of reference of it all being about settling a political issue. His job was to track down that security breach. Evidently he’s been quite content to leave it to the press and the blogs to worry about the politics of it.

    With that in mind, consider what Libby appears to have done. (There is likely a corresponding story for Rove, but he appears to thus far have done a better job of coming up with an excuse for it.) If he had told the truth from the start, then the breach would have been clearly identified and probably easy to verify. That would have been the path to a quick ending of the investigation. An ending that may very well have left Libby free for the reasons you raise.

    But he lied instead. Lied with a story that sounded “compelling” according to Fitzgerald. But, unfortunately, a story that couldn’t be verified without getting testimony from press figures that would naturally resist talking. That took time. (And, as I recall, Justice Department standards are to ask the press to reveal confidences only as a last resort. Fitzgerald would first have been obligated to attempt to develop the evidence independent of them.) He probably didn’t get the break he needed until Russert testified.

    In the meantime, though, he had to work under the assumption that Libby was telling the truth. If he was telling the truth, then how did the information get to the press? That would have sent him down a more difficult path of tracking all documents identifying Plame and interviewing everybody that could be identified as possibly knowing about Plame. All fruitless. All a wild goose chase. Because the he had been diverted from the true path by Libby’s lies.

    Does that, perhaps, better explain why Fitzgerald would see that as a serious obstruction of justice? Heck, if he had lost his legal cases to compel testimony from the reporters, he still might not know where the security breach originated.

    ————

    So once again I will assert that what we have here is a serial liar in Joe Wilson

    The more I look into this story, the less I believe that assertion.

    However, contrary to the usual contrasting liberal charges, I also don’t think the White House has been lying about their impression of Wilson.

    What strikes me as particularly unfortunate about this whole affair is that it is increasingly looking to me like the personal part of the dispute has been built on misunderstandings by both parties.

    I’ve written more than enough for one post already, so I won’t go into too much detail about that right now, but I would encourage you to take a closer look at both side’s perspective and basis for their answer to the question of whether Valerie is the one who proposed Wilson’s trip.

    While no definitive answer to that question has yet been brought forth, I would submit that Wilson’s citations (in his letter to the Congressional committee) are the stronger evidence by virtue of being first hand. The problem with the references to the committee report and Fitzgerald’s indictment is that their supporting accounts are all second hand by people not really in a position to know.

    But – and a big but – what those accounts also show is that Libby and others were clearly told that Plame was responsible – and in a fashion that obscured the track back to Cheney’s original request. So it very probably *did* look to them like some kind of setup to damage the White House.

    A classic confusion by a whole bunch of paranoid people primed to think the worst. On both sides.

  8. odograph says:

    To an old-line conservative and Repubican, William F. Buckley Jr. is still the man

    The importance of the law against revealing the true professional identity of an agent is advertised by the draconian punishment, under the federal code, for violating it. In the swirl of the Libby affair, one loses sight of the real offense, and it becomes almost inapprehensible what it is that Cheney/Libby/Rove got themselves into. But the sacredness of the law against betraying a clandestine soldier of the republic cannot be slighted.

    The “tribal” folk who defend Scooter’s action directly, or by weak attempts at “re-framing” the argument need to read that article.

  9. Leopold Stotch says:

    You people are impervious to logic and reason. Every single point made counter to my assertions is answered within the post. Either you can’t read or you can’t think.

    Forgive me for being harsh, but comments that ignore both the facts and my specific argument are getting tiresome.

  10. odograph says:

    Don’t group me with people who dispute your “argument” ;-). I reject your framing, and for that reason don’t even worry about the details.

  11. Alan says:

    Ah, yes, it must be us…and the Special Prosecutor, and the members of the Grand Jury, and most members of the media, and most Americans—we are all impervious to logic and reason. Thank God we have Leopold Stotch, one of the few right-thinking people in this world to re-educate us.

    Unfortunately, unable to get his way, Leopold has grown frustrated and has declared us to be “tiresome”. Perhaps after a final lashing out, he will retreat to his cave and sulk.

  12. spencer says:

    2 plus 2 still does not equal 5.

    When you deside that is true let me know.

  13. John Tieso says:

    If the job of the special prosecutor was to prosecute crimes that have been alleged to be committed, then why have we seen no indictment of Novak–who, after all, was the guy that really ‘outed’ Plame?

  14. adfawe says:

    Forgive me for being harsh, but comments that ignore both the facts and my specific argument are getting tiresome.

    Listen Stoch, you made the pronouncement that Wilson was a “serial liar” without providing any evidence. What were the lies present in the July 6 2003 NY Times piece?

  15. David Sucher says:

    I’ll go with William F. Buckley Jr on this matter.