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.
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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.
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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.
