Who's a Journalist?

Yesterday a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously ruled that Matthew Cooper of Time and Judith Miller of The New York Times should be held in contempt of court for refusing to say who told them Valerie Plame worked for the CIA. While I don't think Cooper and Miller should go to jail, I'm also troubled by the idea of an exemption from grand jury testimony that extends only to government-certified journalists. "Does the privilege also protect the proprietor of a Web log?" asked Judge David Sentelle, referring to "the stereotypical 'blogger' sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way." It's hard to see by what principle a blogger in Cooper and Miller's situation should go to jail if they shouldn't, unless courts are going to make case-by-case determinations of who counts as a real journalist, based on criteria such as training, methods, hours worked, money earned, and audience size. It seems strange to protect freedom of the press by putting the government in the position of deciding who is part of the press.

Comments

[sage]

I'm a little confused on this story. When they said Plame worked for the CIA, were they passing on classifed info? And if not, it would seem there is no justification for detaining them, right?

[joe]

sage, yes, her work for the CIA was classified. Somebody gave them that classified information. There is an investigation aimed at determining who disseminated that classified information. The reporters were subpoenaed as witnesses to the crime of blowing an agent's cover, to identify the perpetrator, but refused. Refusing to answer a subpoena is Contempt of Court.

[Tim Cavanaugh]

Judge Sentelle, who was appointed by President Ronald Reagan, wrote in his concurrence that the Branzburg decision had definitively rejected protections under both the First Amendment and common law. The reporters' arguments, he wrote, "should appropriately be made to the Supreme Court."

But he added that Congress, rather than the courts, was the better forum for the consideration of whether reporters deserve protection.

Huh? When it comes to ensuring my First Amdendment rights, I'd take a corrupt, drunken hanging judge out of Dodge City before the U.S. Congress any day. What role should Congress be playing in any of this? If this isn't a matter for the courts to decide, what is?

[sage]

Joe:

I can see the rationale for holding them in this case, but I'm sensing a rather dangerous precedent. In this age of classifying pretty much everything in the name of national security, it would seem that this could have a chilling effect on what can be taken to press. But maybe my imagination has gone wild .

Mr. Cavanaugh,

The Congress has taken enough on their shoulders. We shouldn't be asking them to decide this also. Something tells me, however, they'll do it "for the greater good." 🙂

[trostky]

There should be no particular legal advantages to a guy who works at a newspaper vis-a-vis anyone else engaging in journalism of whatever sort. Free-lance or full-time, print or digital, amateur or professional.

On the other hand, suppose you worked for a private newsletter that covered U.S. national security issues. Are you a journalist? What if it's a Farsi-language publication supported by the Iranian government? Are you now a spy?

Cooper and Miller should go to jail for protecting their source(s) and become their colleagues' heroes (Miller, especially, could use some new cred), but this still remains an odd case in that they are not protecting a whistleblower who exposed wrongdoing. The alleged crime was blowing Plame's cover, so they are protecting the accused wrongdoer.

No Washington journalist can abide by the criminalizing of leaks, of course.

[c]

But neither Cooper nor Miller were the first to publicize Plame's ID -- why are they being prosecuted but Bob Novak not?

[c]

hmm, I think i had my timelines mixed up. Ignore previous....

[Ken Shultz]

"...why are they being prosecuted but Bob Novak not?"

I have heard others speculate that this may suggest that the "Prince of Darkness" is cooperating with the prosecution.

...I don't know if anyone has already done this, but I think it would be interesting if someone, somewhere were to ask Mr. Novak if he's cooperating with the prosecution.

[Tim Cavanaugh]

Miller didn't publicize Plame's identity at all. She never even wrote an article about Plame, just interviewed the wrongdoer (probably).

[R C Dean]

She refused to answer questions posed by a grand jury. Anyone else would go to jail for that; why shouldn't she?

The better question is under what circumstances witnesses can be compelled to testify.

I see no reason to create a special privileged class of journalists entitled to decide which subpoenas they will comply with and which they will blow off. Sure, you can see why journalists want this kind of special treatment, but apparently, no court has ever seen any reason to create such a privilege either.

[Jacob T. Levy]

What role should Congress be playing in any of this? If this isn't a matter for the courts to decide, what is?

As I understand matters...

Reporters' sometimes-immunity from having to disclose sources is-- as a matter of positive law-- a privilege usually granted by state statute, not a right embedded in the First Amendment. There's no comparable federal statute (and only some states have it). So if reporters want to claim the privilege in the face of a federal investigation that they can claim in the face of a New York state investigation, they have to get Congress to pass the kind of law that the NY state legislature did.

[Tim Cavanaugh]

I have heard others speculate that this may suggest that the "Prince of Darkness" is cooperating with the prosecution.

If so, this would be an interesting dilemma for the various amen corners. Bush flunkies, for whom the exposure of Plame was a glorious blow for freedom and truth, must condemn Novak while cheering the courage of a NYT reporter who is standing against an out-of-control grand jury. Bush haters, for whom Plamegate is the greatest scandal since New Coke, must applaud Novak, a great American who is helping to see that justice reigns throughout the land.

Me, I don't give a Plame.

[Shannon Love]

I think the phenomenon we are seeing here is that many people are more comfortable granting privileges (literally, private law) to collectives than to individuals. For example even the most fanatical gun prohibitionist will support the keeping of weapons by private security firms because they trust that the company will better regulate the use of the weapons than would individuals.

In the pre-internet era, being a "serious" or "professional" journalist meant having access to the physical infrastructure for the mass dissemination of information. That required a public or private collective of some kind. The privileges granted to individual journalist in the form of shield laws and rulings were really privileges granted to the collective to which the journalist belonged.

If an individual was not perceived as belonging to a privileged collective they had a much harder time asserting a shield privilege. Some of the more troublesome cases regarding source confidentiality in the pre-internet era came from people who self-published in small batches in what used to be called "vanity press". Their status as privileged journalist was often called into doubt

Due to the internet, the collective or institutional nature of journalism is rapidly eroding. Any attempt to legal define "real" journalist will fail due to collision with technological realities.

We are going to see a lot more weakening of collective institutions in the coming years. More and more collective action will occur under ad hoc organizations. More and more significant action in all fields will occur at the individual level with no collective oversight.

All our legal and cultural standards based on the responsibilities of collectives will have to be changed.

[Tim Cavanaugh]

Reporters' sometimes-immunity from having to disclose sources is-- as a matter of positive law-- a privilege usually granted by state statute, not a right embedded in the First Amendment. There's no comparable federal statute (and only some states have it). So if reporters want to claim the privilege in the face of a federal investigation that they can claim in the face of a New York state investigation, they have to get Congress to pass the kind of law that the NY state legislature did.

Ask a question, get an answer. Thanks.

[jessica]

This is beside the point, but if someone caves, will the identity of their source also be classified?

[joe]

c, good question. Someone on NPR was speculating that Novak quietly cut a deal.

sage, I was just laying out the facts in my post, not opining on that issue. As far as precedent goes, it's long established, both within journalistic ethics and the law: the privilige does not extend to crimes that the reporter witnesses.

trotsky, I agree. The purpose of the 1st Amendment's "freedom of the press" clause is not just to protect the individual liberty of the journalist (which would be covered under freedom of speech), but to protect the public good that comes from having an independent press able to perform its function. The function - investigating, spreading information, fostering discussion, etc. - can be fufilled these days by a guy in his pajamas with a desktop. Ergo, the freedom of the press standard should apply equally.

Tim, I read that statement as generic adknowldegement of the legislature's perogative.

[joe]

c, Miller and Cooper are not being prosecuted for blowing Plame's cover. They're being prosecuted for Contempt of Court. In fact, it's not even clear whether Novak committed a crime by publishing the name, or whether the guilt lies entirely with his source (or his source's source).

"Bush haters, for whom Plamegate is the greatest scandal since New Coke, must applaud Novak, a great American who is helping to see that justice reigns throughout the land." Nah. A crook who turns snitch is still a crook. You don't cut him a deal because he's suddenly a great guy; you cut him a deal because he's useful.

[MikeF]

If it had not been some lowly analyst, but a member of CIA special operations, I bet most of the outrage wouldn't be here. Journalists have no constitutional right to reveal government operatives to the public when that undermines the job of the agency. Plame was a nobody, but what if the press had leaked the names of several CIA special operations operatives to the public? They would be as good as dead if they set foot outside of the U.S. or a major ally. Not only that, but they would probably be let go simply because they couldn't do their work anymore. All because some damn reporter decided the public had a right to know.

Freedom of the press protects your right to publish your opinion without censorship, it is effectively a corollary of freedom of speach. It is not a freedom of "do what thou wilt" for professional journalists. Personally if it were a real somebody whose name were released, I would like to see the reporters investigated for treason rather than contempt of court. There is no civil liberties case here. If you reveal state secrets that are there specifically to protect the security of the United States then you are betraying your country and aiding those who would attack it.

Normally I am a staunch critic of what the federal government will often push in the name of national security, but there are no lost liberties here. These journalists should go to prison.

[Charles]

In regards to the gov't deciding who is(n't) a journalist... The courts have to ascertain who qualifies for a privilege and how far that privilege extends. The question isn't whether the government should have a definition of "journalist" but rather what that definition should be.

[Ken Shultz]

"I would like to see the reporters investigated for treason rather than contempt of court."

When reporters are tried for treason for reporting facts--like people's names--given to them by sources in the government itself, we're in big trouble.

...A treasonable offense may have been perpetrated by whomever it was in the government who purposely revealed the name of an undercover CIA operative to a well known journalist.

[Shannon Love]

Charles,

"The question isn't whether the government should have a definition of "journalist" but rather what that definition should be."

I disagree. When we get into the business of letting government decide who-is and who-is-not a member of a particular profession we inevitably create a self-selecting and self-perpetuating elite.

It would be disastrous if we created a licensing system for journalist the same way we created one for lawyers. doctors or plumbers. It is bad enough that an individual's access to the justice system is controlled by the economic interest of the bar but it would be ultimately fatal to democracy if the flow of political debate was controlled by similar priesthood.

[Ken Shultz]

"Miller and Cooper are not being prosecuted for blowing Plame's cover. They're being prosecuted for Contempt of Court. In fact, it's not even clear whether Novak committed a crime by publishing the name, or whether the guilt lies entirely with his source (or his source's source)

Surely it would be ironic if Cooper and Miller did six to eighteen months just to protect a source whose name, courtesy of Mr. Novak, is already well known to prosecutors.

"A crook who turns snitch is still a crook. You don't cut him a deal because he's suddenly a great guy; you cut him a deal because he's useful."

See? Now, even you think that Novak's a great guy!

...Just kidding.

[Tim Cavanaugh]

I'm open to the idea that this is not the ideal test case, but there are legitimate first amendment issues here. Journalism involves getting people to talk to you, and it's a lot harder to do that if the people you want to talk to think you're going to turn them over to the cops as soon as the interview's over. The case they cited yesterday, Branzburg v. Hayes, involved a reporter forced to testify about drug activity he had witnessed, and the part Sentelle noted with approval implies that reporters should consider themselves deputized: "[The Court cannot] seriously entertain the notion that the First Amendment protects the newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about a crime than to do something about it."

Leave aside whether a reporter (who obviously lacks the government's monopoly on force) should be doing "something" about a crime he happens to see. The reality is that reporters talk to dubious characters all the time: That's how you get the news. City reporters frequently spend time on the job with pimps and drug dealers. I have interviewed members of a U.S.-designated terrorist group. There's a vast industry of true-crime reporters, and not surprisingly, they spend much of their time talking to criminals. Turn reporters into an arm of the criminal justice system and all those people will clam up.

Weird aside: I went to high school with the once-notorious Marty Rimm, and he used to get big splashes in the school paper with overheated stories about teen gambling and the underage drinking that goes on at parties. The legal issues don't apply here (a high school student doesn't have the same privileges as an adult, etc.), but it's pretty clear that if he'd been required to fink on all the gamblers and drinkers, he couldn't have done the stories (and wouldn't get invited to too many parties). The twist is that the school authorities loved his stories specifically because they revealed the sordid underbelly and gave the honchos more opportunities to inveigh against the scourges of binge drinking and blackjack.

The blogger/journalist argument is a blind: It's still possible, and in most cases easy, to tell the difference between somebody who's gathering information for a story (in any medium and for any audience) and an accessory to a crime. The real issue is that if you reduce source confidentiality you reduce the amount of news people will be getting. You may not mind that, but I like learning actual facts about criminals, terrorists, etc., and I'm willing to make a grand jury's job a little tougher to keep it that way.

[joe]

"When we get into the business of letting government decide who-is and who-is-not a member of a particular profession we inevitably create a self-selecting and self-perpetuating elite."

Not if "journalist" is defined by what someone does, rather than what someone is. If a "journalist" is any person is engaged in journalism, then the government is not in the position of distinguishing based on membership in some group, but of making findings of fact about the actions that person undertook.

[thoreau]

Correct me if I'm wrong, but as I understand it, Novak revealed Plame's identity to the public. Cooper and Miller were allegedly told of Plame's CIA employment but didn't publicize it.

If Novak has quietly revealed the source of the leak to prosecutors, why are Cooper and Miller necessary to the investigation? If he hasn't cooperated, why not start with him?

Also, when Shannon Love wrote:
I think the phenomenon we are seeing here is that many people are more comfortable granting privileges (literally, private law) to collectives than to individuals....

The fact that Shannon made references to history means that Gary will soon show up and write "*chuckle* Get your history right. In fact, in the early days of the Republic the press usually...."

The fact that Shannon made reference to individuals vs. collectives means that gaius marius will soon show up to bemoan the rampant individualism of modern society.

[Ron]

I think it is useful to revisit why this particular issue has come up in the first place. The law against disclosing the names of CIA agents came about when a former agent, named Agee, published names of undercover agents in a book. Congress, probably at the behest of the Justice Department, decided it was just too hard to prosecute people like Agee for a crime as vague as "treason" and decided to create a "bright line".

The problem with bright lines is that they tend to catch more dolphins than tuna; eg., when someone discloses a name without intending to jeopardize national security, and which everyone seems to agree does not in fact jeopardize national security, you now have to enforce the law to its fullest against them (or at least go through the motions, which may be what is happening here) so you can still use it against the "bad guys". The situation is aggravated by the likelihood that this "crime" probably reaches the highest levels of the White House.

The whole episode simply underscores, once again, the fact that criminalizing behavior without requiring a showing of criminal intent is morally bankrupt, and is a grave threat to freedom in this country. It's indistinguishable from the Stalinist "guilt by analogy" concept. I just don't understand how the major political parties can support these laws while apparently believing they will never apply to themselves or their cohorts. A criminal defense attorney I know said his definition of a liberal was a Republican who has been indicted.

[c]

I'm still not really clear who spilled the beans first about Ms. Plame ... but I will weigh in on the other issues raised since. First, if "journalists" have a certain right that the rest of us zeros don't, it certainly makes more sense for the person in question to know before they go out and write something whether he'll be legally protected, rather than writing it, getting arrested and prosecuted, and sweating it out about while a jury decides if he's enough of a journalist not to go to jail. That means some sort of government-sponsored journalist registry, which no one (here) supports. Therefore, I don't see extra legal protections for journalists as tennable.

Slightly off topic: at some point your line of defense isn't anonymity of your sources, but rather anonymity for yourself. Politically or legally inflamatory stuff has been published anonymously for thousands of years, but modern journalism is such a frickin cult of personality that no serious writer would even consider doing all that work without a byline.

[Eric the .5b]

Not if "journalist" is defined by what someone does, rather than what someone is. If a "journalist" is any person is engaged in journalism, then the government is not in the position of distinguishing based on membership in some group, but of making findings of fact about the actions that person undertook.

Lovely, let's dollop additional levels of selective context ("was his posting reporting, or just writing in his LiveJournal?") onto free speech. Whatever we do, we mustn't regard it as an individual right, but one of officially-approved association ("is he a professional journalist?") or officially-approved social function ("is he performing journalism?").

[Eric the .5b]

Of course, "journalistic privilege", as it's properly known, is not actually a free-speech issue. It's a matter of, precisely put, privilege, a privilege to not have to testify in court as to certain information because one works for a newspaper or a TV news show.

It generally doesn't strike me as just or reasonable to let a professional privilege of convenience to override someone else's right to a fair trial, which is partially enforced by the right to compell witnesses on one's behalf. This may not entirely apply with grand jury investigations, but in criminal proceedings it certainly seems a conflict.

[Russ D]

I haven't really followed this thing very much, but it seems to me that the CIA's job (and each individual agent's) is protect their identities "themselves". Plame got outed; seems to be the agent's responsibility NOT to get outed, she should have been more careful about who she trusted. Letting the CIA get away with doing a shitty job and letting the justice department deal with it isn't going to make the CIA better at their work.

[thoreau]

she should have been more careful about who she trusted

If Plame had told Robert Novak about her work for the CIA, thinking that he'd keep it secret, I'd see your point. But if somebody else in the gov't told Novak, well, you can't expect each CIA employee to go around finding out which other federal employees might know about their CIA employment and deciding whether that person is trustworthy.

This leak didn't come from Plame. She can't be held responsible for it.

[thoreau]

Russ, to put it even more plainly, suppose that (hypothetically) Bill Clinton had obtained a list of undercover CIA operatives and given that list to the Chinese gov't. Would you say that it's the fault of those operatives?

[Morat]

Amusingly, Miller's defense indicates she might know the ethics of her profession, but doesn't understand them.

Anonymity of sources, especially when dealing with government, exist to protect the leaker from retribution by those with power over him.

In this case, the situation is reversed entirely. The "leaker" was Joseph Wilson, who -- because he does not work for the government -- published the results of his trip openly. Unable to punish him the traditional way (fire him, make his life hell, etc), the Government tried to squelch him by blowing his wife's cover -- using the Press to put pressure on a former employee.

Miller invoked a law designed to shield whistleblowers from retribution -- but on behalf of the wrong person.

[c]

?

First, the idea that either the "Government" or Novak was getting retribution on him or his wife is a little flimsy. Plame's identity as a CIA agent was apparently a bit of an open secret, and she wasn't exactly in any danger once her cover was blown. Second, while the anonymous source rule may very well "exist to protect the leaker from retribution," that doesn't mean they can be used to protect one from prosecution. Exposing an agent isn't just inconvenient for this guy's boss, it's illegal (even if, in cases like this, I'd prefer to call it "technically illegal").

[joe]

"when someone discloses a name without intending to jeopardize national security, and which everyone seems to agree does not in fact jeopardize national security"

How do you know whether blowing her cover jeopardized national security? Apparently, she used her cover to get people to give her information without their realizing (or their bosses or government realizing) that she worked for the CIA.

So General al-Nookem realizes "so THAT's why my maid had lunch with her twice a week." No more lunches with that maid. And maybe she gets hooked up to a car battery and the General now knows everything that has been passed to the United States. Oh, says the Bushie rat, I didn't mean for THAT to happen.

How about, instead of making it illegal to blow agents' cover unless you're pretty sure it's no big deal, we just make it illegal to blow agents cover, period?

[thoreau]

If I get a job for a defense contractor, and I'm "pretty sure" that the stuff I'm working on is really "an open secret", will it be OK for me to publicize classified material?

[thoreau]

Or how about if I don't even publicize it widely, I just tell my Chinese friends? Is that OK?

After all, I'm "pretty sure" it's an "open secret".

Oh, finally, if I promise to vote Republican next time, does that make it better?

[Russ D]

But if somebody else in the gov't told Novak, well, you can't expect each CIA employee to go around finding out which other federal employees might know about their CIA employment and deciding whether that person is trustworthy.

Point taken, but it still isn't the journalist's fault. Novak doesn't work for the CIA. If the person who blabbed the secret told a columnist in the Toronto Globe And Mail, would they be justified in going after that columnist or finding the person who leaked it? The leak is the insider telling the journalist or the insider telling Joseph Wilson. Why should anyone but the CIA be required to keep the CIA's secrets for them?

[thoreau]

Russ, I'm not sure that Novak committed a crime. (Maybe he did, I don't know what the statutes actually say.) I agree that the worst crime was committed by whoever actually told Novak.

What I don't get is why the investigators don't start with Novak, since he presumably knows who his source is. (Unless it was disclosed to him in a really cloak-and-dagger fashion.) If they already obtained his cooperation, why do they need the help of these other reporters? If they didn't obtain his cooperation, why not threaten him with jail like they are threatening the other reporters?

[c]

No thoreau, you're misreading me. Disclosing her ID was illegal, as it should be. But asserting that Novak disclosed it as a convoluted way to exact retribution on Wilson through his wife is ridiculous, since she wasn't really under-cover and she was in no real danger.

(The fact that Novak landed two NYT journalists in court protecting the ID of the leaker has got to be regarded as the world's best bank-shot ever.)

[Morat]

C: Dude, they did it to paint Wilson's trip as nepotism. "His wife pulled strings to get him a luxury trip, so he's just lying".

Try to keep up.

thoreau: The thought is that Novak has already testified. The general thought is that the rest of the subpeonas are an attempt to verify or refute Novak's story.

[Ron]

"How about, instead of making it illegal to blow agents' cover unless you're pretty sure it's no big deal, we just make it illegal to blow agents cover, period?"

Thoreau and Joe: I don't disagree that some actions are per se treasonable and dangerous, but I would like to see the category kept as narrow as possible. The alternative is to give prosecutors an excuse to go after people for trivial offenses because they are high profile individuals, for political reasons, or it's just a good press story. This situation doesn't sound like a big deal, although on the other hand we haven't heard much about the fact that Chalabi told the Iranians we had broken their codes, either, so maybe I'm misreading the whole thing. What I was reacting to was the fact that our nation somehow survived without this particular law until the early 1980's, and it just seems like one more "gotcha" invented by Congress to reduce the level of proof needed to convict.

[thoreau]

c-

Even if Plame wasn't in any danger, the disclosure could still be seen as retribution if it impedes her ability to perform her job in the future. The next time she shows up in Tehran as a mundane American business executive, and just happens to have lunch with an employee from a nuclear research facility, nobody will believe that he was interviewing for a job in her company's Tehran office.

I'm really agnostic on just how secret her job really was, and just how dangerous this leak really was. Some people would have me believe that Plame is a slightly older version of Jennifer Garner's character on Alias, and others would have me believe that she's a Langley paper-pusher who hasn't left the country since she and her husband took a cruise to Nassau. Either way, it doesn't seem like information on a CIA employee should be leaked just because somebody in the White House is angry at Wilson. Either declassify her work the proper way, or keep it quiet.

[thoreau]

The thought is that Novak has already testified. The general thought is that the rest of the subpeonas are an attempt to verify or refute Novak's story.

Good point! I didn't think of that. One guy's word isn't particularly compelling if there's nobody to back it up.

Now this makes much more sense to me.

[Russ D]

If the government can't find out who leaked the info to Novak, it's utter bullshit to slap Novak around (or any other person) to find out. You can call anything "national security" if you want, but clearly national security was not jeopardized by the information. This is a CIA?bush Administration in-house, dirty-laundry matter only, and to coerce information out of the public to cover up your own organizational bumbling is insane.

[joe]

"You can call anything "national security" if you want, but clearly national security was not jeopardized by the information."

Why is that so clear to you? Plame used to collect information on WMD proliferation for the CIA. She had contacts, Langley kept employing her. Now, their ability to collect this information is degraded. And as I recall, the one thing Kerry and Bush both agreed on without prompting was that WMD proliferation was the highest national security concern America faces.

[c]

The only "organizational bumbling" involved here was for the leaker not to realize that involving Wilson's wife and specifically mentioning her name and gov't postion was illegal. The leak was meant to discredit Wilson. ("Retribution" is still the wrong word -- the administration and its ideological allies were spinning a damaging story. Neither Wilson nor his wife came to any harm.) Furthermore, specificaly mentioning her doesn't make the story all that much more discrediting!

I'm skeptical of the "confirm/refute" angle to explain the focus on Miller and Cooper. So, Novak sang, the gov't has a main suspect, but they can't move ahead with an arrest or prosecution until they also get confirmation from the NYT? Since when does anyone in this administration look to the NYT for a final word?

[Tim Cavanaugh]

Just to keep the players straight: "This administration" doesn't want a Plame investigation at all.

[c]

Tim, you're not wearing enough tinfoil. See, the "leaker" was not only trying to spin the Wilson story. He was instructed to illegally reveal Plame's ID, and was instructed to shop the story to the NYT (knowing they wouldn't carry it) so that they could subsequently put the legal screws to them. They gave the story to Novak to make sure it would run -- and they told him to make a token show of resistance revealing the source, but they also told him that they would cut him a quick and silent deal in any subsequent inquiry. The leaker's willingness to fall on his sword here is just a testament to the loyalty of the Bush team.

You might see in the above convolusion why I hesitate to imbue too much intention to any of the players here. What really happened was, in an effort to protect themselves from a story they obviously thought was hugely damaging, the white house loaded the canons with anything they could grab. Accidentally, someone stuffed a (technically) confidential tidbit in there.

[joe]

"Neither Wilson nor his wife came to any harm." She can't do her job anymore, or any job that requires her connections with the CIA to be covert. That was her career.

"Furthermore, specificaly mentioning her doesn't make the story all that much more discrediting!" I actually agree, but when Novak wrote his story, there was a mass movement among the conservative commentariat (from NRO to regulars on this board) to seize on her status as evidence that Wilson could not be believed when he poo-pooed the Niger uranium claim. I didn't get the argument then, I don't get it now, but the fact that his wife was a CIA employee was, for some reason, supposed to discredit Wilson.

[Arnold Kling]

Supposedly, the law is somewhat murky in this area--Federal law is not the same as state law, for example.

Here is an exercise: sit down and write a law to protect journalists and their confidential sources, but do so in a way that does not give journalists the ability to commit crimes with impunity.

I think that if you were to write such a law, it would not protect the reporters in this case. They were necessary to the crime itself--assuming that it was a crime.

Put it this way--suppose that the reporters had won their case. That would establish the right of someone to leak the names of CIA agents to reporters and be protected from prosecution. Is that the right we need to defend?

Instead, the defend the right of whistle-blowers to talk to reporters, or the right of criminals to talk to reporters (as long as they are not using reporters to carry out the crime itself).

[c]

eh. I'm sick of arguing semantics, but since I can't possibly let you have the last word, I'll opine that the classified nature of her job was far more likely to be one of those many things the government classifies for no good reason than any crucial, central part of her career. One way or the other, the consequences of the uncovering were certainly nothing like being hooked to a car battery.

[Tim Cavanaugh]

I can't tell whether you're trying to break my chops or not, c, but I was just trying to be helpful. As far as I can tell everybody's opinion on the Plame affair has been determined by whether they're pro-Bush (in which case it's no big deal) or anti-Bush (in which case it's a big scandal). I assume there's a reason for that, that the administration has little to gain (though possibly little to lose) from a thorough investigation, and thus that it's not Bush partisans who are pushing to have Miller locked up. Maybe there's some nuance I'm missing in this, but I'll leave that to others.

[Ron]

c--

My point is that we have a law that doesn't distinguish between hooking someone to a car battery or to a joy buzzer. Thoreau and Joe don't seem to get that.

[Mark Draughn]

thoreau writes:

If I get a job for a defense contractor, and I'm "pretty sure" that the stuff I'm working on is really "an open secret", will it be OK for me to publicize classified material?

No. Because to get access to the classified material you had to sign an agreement not to disclose it.

On the other hand, the reporter you've disclosed it to has never signed such an agreement and therefore has no duty to keep the information secret. At least, not because it's classified: If the information involves current information on troop movements or covert operations or something like that, revealing it may constitute aiding the enemy---and therefore treason---or some lesser harm to national security. But that has nothing to do with whether the information was classified. Even revealing unclassified information to the enemy can be illegal. Seeing a supply ship leave the harbor and radioing its position to a waiting submarine may not be revealing classified information---hundreds of dockworkers know that it left---but it is surely treason. This is where issues like whether the information is an "open secret" and whether the agent is still operating come into the picture.

This is all complicated by the fact that Novak, Cooper, and Miller aren't just reporters with sources, like some crime reporter who has received a murder confession, they're actual witnesses to the crime of disclosing classified information.

[thoreau]

Mark-

My interest is not in the reporter. My interest is in the federal employee who had the necessary access to learn that Valerie Plame worked for the CIA and decided to leak that fact to a reporter. I'm guessing that the federal employee (sucking at the taxpayers' teat, no less!) who leaked that had to sign some sort of agreement.

I'm not too upset that Novak reported what he was told. I'm upset at the guy who told him.

[thoreau]

Why isn't anybody upset when a federal employee violates an agreement and leaks the identity of a person who does secret work for the CIA? I realize that Plame probably didn't have to do like Jennifer Garner and dress as a hooker to steal secrets before jumping out of an airplane, but I wouldn't be surprised if she had to keep a low profile and make sure that the bosses of the people she talked to didn't know she was a CIA employee.

[joe]

"Why isn't anybody upset when a federal employee violates an agreement and leaks the identity of a person who does secret work for the CIA?"

Because Kerry would be much worse?

[Mark Draughn]

"Why isn't anybody upset when a federal employee violates an agreement and leaks the identity of a person who does secret work for the CIA?"

Not sure if this was in response to me, but I'm right there with you.

It's possible that this leak didn't actually cause any damage to national security, but it's my understanding that leaking an intelligence officer's identity is one of the exceptions to the requirement for proof of damage (I assume because most of the damage takes place in another country where it's hard to tell what happened, let alone prove it in court).

Depending what Plame did for the CIA, it's possible that blowing her identity caused little real damage. It's also possible that entire spy networks have been blown and quietly rolled up by the countries she worked in.

I keep hearing that this was an "open secret" around Washington. If that's true, then it's arguable that the people who mentioned it to the reporters didn't actually leak anything: It's not usually a crime to discuss classified information that is also available from unclasified sources. If true, we can probably assume that the open nature of her CIA employment means that she wasn't the key to any dangerous secrets.

I haven't been following this, so I didn't realize that Novak had sourced this as "two senior administration officials." There's a good chance this means that the sources are people whose names we've all heard. Wow.

By the way, even if Novak has named his sources, the possibility exists that the other two reporters got the information from a different source. That would mean at least three leakers at the same time, which suggests the leak was coordinated.

I don't believe that anybody intentionally blew Plame's cover because...well, because I hope somebody would have been smart enough to recognize how wrong that was. I think that diminishing Wilson's stature was the goal, with blowing Plames cover being an accident.

I suspect we'll soon find out.