If the '70s Spook Runs Amok, Miller's Out of Luck

As Time caves like the Third Republic, Judith Miller gets ready for the clink, and Robert Novak characterizes the notion that he might be even slightly culpable as "madness," it's worth pondering for a second that, as I wrote in the March issue, "the Plame case is a festival of unintended consequences." When you pass federal laws restricting the speech of even CIA employees, sooner or later they'll be perverted to prosecute those who make a living at free expression. This December 2004 Wall Street Journal op-ed, by David Rivkin and Bruce Sanford, explains how the 1982 Intelligence Identities Protection Act, passed after renegade CIA agent Philip Agee kept "outing" the agency's foreign operatives, has gone from a forgotten statute that netted exactly one (1) prosecution in 23 years, to providing the justification for a Putin-style lock-up of a journalist who never even wrote an article about the subject at hand. Excerpt:

[J]ailing journalists for refusing to divulge their sources to a grand jury which never really had a crime to investigate, [is] a situation that makes the prosecution of Martha Stewart for lying about a stock transaction which in itself was not illegal look positively benign by comparison.

We will have ended up with the precise situation the press feared when it fought against the Agee bill 20 years ago--reporters, not enemies of the CIA, facing prison--and yet another testament to the mess that happens when Congress tries to criminalize certain kinds of speech.

Comments

[JonBuck]

And the First Amendment takes yet another beating.

[just pete]

No crime committed? Not true. What about the administration person who leaked the information?

And a "Putin style" lockup? Next, you're going to start claiming that the oligarchs are "capitalism."

This sounds a bit like the NRO.

[SR]

I take the following view of Miller: This is like a murderer who confessed to a killing but avoided conviction in that case on a technicality subsequently being wrongfully convicted of tax evasion and sent to jail for a few years. Is it right? No. But will I shed any tears? No.

[R C Dean]

What about the administration person who leaked the information?

Not a crime. Just ask the NYT. The facts as we know them fail to meet the elements of the criminal statute on a couple of points, although I can't recall exactly what they were at the moment. I think it comes down to a couple of things - first, her identity wasn't really secret anymore, and second, her role wasn't one protected by the statute.

It has been fascinating watching the NYT backpedal on this, now that it looks like the Plame "scandal" won't leave any marks on the administration.

IMO, the prosecution is pressing forward on this case not because it ever intends to bring an indictment, but solely to set some precedent in this area. There are plenty of folks in Washington who wouldn't mind seeing the culture of leaking take a few hits, as well.

[Jon H]

"The facts as we know them fail to meet the elements of the criminal statute on a couple of points, although I can't recall exactly what they were at the moment. I think it comes down to a couple of things - first, her identity wasn't really secret anymore, and second, her role wasn't one protected by the statute."

All of that would have been easily determined two years ago, before seizing White House disk drives and dragging staff before the grand jury.

It's unclear if Fitzgerald will be able to get a conviction on the agent identification thing due to technicalities pertaining to the perp, but that doesn't mean Plame wasn't covered by the law.

If that wasn't the case, he would have packed up a long time ago. He might not have even been brought in.

If Fitzgerald went this far, and Plame was so clearly not covered by the law, which could have been determined in the first week, his career would be over.

[Steve]

Just because revealing Plame's name & identity to Novak was slimy or wrong doesn't make it a crime. The law here is very specific as to what has to happen to make such a leak illegel, and the Plame case doesn't come close. Therefore, the prosecutor here is abusing his power, jailing people for no good reason, and should be tarred & feathered.

[Jack William Bell]

I've wondered about Novak seeming immune on this stuff. Instapundit thinks its because Novak has already stealth testified for the grand jury.

But what if the reason is because Novak's source was Plame herself or her husband, and therefore Novak can't be used to prove the case Fitzgerald wants to make? That would explain a lot.

But the real issue here is the unintended consequences; and I agree totally. The end result may be a body of case law establishing that there is no such thing as an anonymous source.

[Jon H]

"But what if the reason is because Novak's source was Plame herself or her husband, and therefore Novak can't be used to prove the case Fitzgerald wants to make? That would explain a lot."

Except that the same source evidently called other people, trying to pass the message, and has been identified as being at the top levels of the administration. That doesn't describe Wilson or Plame.

And, if Wilson was going to tell anyone, it probably wouldn't be conservative Bob Novak.

[Jason]

None of us know if a crime was committed or how the statute will be interpreted. The whole purpose of the grand jury is to determine if there is enough evidence to sustain a charge. It is an absurdity to say that someone should not have to testify at a grand jury hearing because no crime was committed.

There are no doubt serious unintended consequences here, but one often over looked is that the reporter's privilege, which is premised in large part on allowing reporters to expose government corruption and protecting the free flow of information, is being propped up to protect a reporter from exposing government corruption.

[Steve]

Jason,

You're right that the purpose of a grand jury is to determine whether a crime has been committed. But a prosecutor still has to have some evidence of a crime to call people before the grand jury. In this case, there isn't any. The investigation should have been dropped months ago and he should have apologized to Miller & Cooper.

[Ignorant Law Student]

My opinion of this is that this is a "turnabout is fair play" act by the Administration. Since so many media people on the Left were outraged that someone "outed" Ms. Plame to try to discredit their husband, and demanded an investigation, the Bush Administration said, "sure! Let's have an investigation!" and proceeded to make the media sorry for even asking.

I'm not sure how I feel about this, because I think most of the players are big jerks.

[Ken Shultz]

"In a telephone interview on Tuesday, Mr. Novak, 74, said that reverberations from the case had had no effect on his ability to do his work as a columnist and commentator."

I'd love to get some insight on this. Is this true? ...If Miller goes to the slammer, should we expect this to remain true?

I used to like watchin' Novak way back when he was a regular on McLaughlin, but I can't stand lookin' at him now. To me, when I'm watchin' Novak do his thing now, it's like I'm watchin' the journalistic equivalent of Kobe. ...As long as Kobe's on the team, I can't make myself want the Lakers to win either.

...I can't root for 'em, and I don't care enough to root against him.