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, IÃ¢€™m putting the bulk of it below the fold. As usual, if youÃ¢€™re uninterested in this topic, simply move along.
So if not the IIPA, which statute would be appropriate? Is it the Ã¢€œcommenter Ken says that leaking her name is a crimeÃ¢€ statute? Or the Ã¢€œoccupation of Iraq is badÃ¢€ act? How about the catch-all Ã¢€œHaliburton is guilty of everythingÃ¢€ act? Wait, IÃ¢€™ve got it, itÃ¢€™s the Ã¢€œthey did they same thing to ClintonÃ¢€ 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 PlameÃ¢€™s status at the CIA make a violation of the IIPA impossible, so I wonÃ¢€™t 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 Ã¢€œinformation 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 …Ã¢€ 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 PlameÃ¢€™s employment status.
Let me reiterate my central premise here: Fitzgerald was not charged with Ã¢€œfinding out what happened,Ã¢€ 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 PlameÃ¢€™s name into the public arena Ã¢€œcould be used to the injury of the United States or to the advantage of any foreign nation.Ã¢€
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 PlameÃ¢€™s name, when they were well within their rights to demand that he not do so. Is it reasonable to believe that PlameÃ¢€™s identity was an issue of national security but the CIA refused to protect it?
Second, in WilsonÃ¢€™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 Ã¢€œcovertÃ¢€).
Please remember that the argument IÃ¢€™m 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 WilsonÃ¢€™s crocodile tears over the outing of his wifeÃ¢€™s job status are not reason enough for Lewis Libby to spend one minute in jail.