Wall Street Journal AT LAW Outing Operatives, Jailing Journalists There's no crime at the center of the Valerie Plame kerfuffle. BY DAVID B. RIVKIN JR. AND BRUCE W. SANFORD Saturday, December 18, 2004 12:01 a.m.
How did a federal law passed in 1982 to stop the activities of renegade ex-CIA agent Philip Agee become the tool to bring reporters Judith Miller and Matthew Cooper to the brink of jail for refusing to talk to a grand jury? Even more fundamentally, how has this law, whose inglorious history consists of a grand total of one prosecution of a junior CIA clerk in Ghana, thus far managed to escape serious scrutiny when its demanding requirements plainly were never intended to apply to the sort of case special prosecutor Patrick Fitzgerald is pursuing against the Bush administration? Last week, the New York Times and Time magazine reporters, both of whom have been held in contempt, took their arguments to the federal appeals court in Washington. They argued that the First Amendment and the federal law of privileges entitle them to protect their confidential sources from the reach of Mr. Fitzgerald's investigation into the identification of Valerie Plame as a CIA "operative" to columnist Robert Novak. Ironically, what started with a strong media endorsement as a probe of alleged executive branch misconduct is now so thoroughly focused on the journalists that we have lost sight of the fundamental flaw in the entire enterprise. In all of this, far too little attention has been paid to the law that is driving Mr. Fitzgerald's inquiry. Nearly all discussion of the Plame investigation has instead mechanically assumed, without any critical thinking, that a crime was committed when "two senior administration officials," in Mr. Novak's words, disclosed to him in July 2003 that Ms. Plame was a CIA "operative." In fact, the most powerful reason why journalists should not be jailed for failing to cooperate with Mr. Fitzgerald's grand jury is because Mr. Fitzgerald has no crime to investigate. The Plame inquiry is justified, we're told, by the Intelligence Identities Protection Act, which Congress passed because our intelligence community was apoplectic over Mr. Agee's "outing" during the 1970s of CIA covert agents stationed abroad to purposefully disrupt the agency's operations. The bill probably should have been called the Get Philip Agee Act. The law requires a prosecutor to show that a person has disclosed information that identifies a "covert agent" (not an "operative") while actually knowing that the agent has been undercover within the last five years in a foreign country and that the disclosed information would expose the agent. For a person who had no classified access to the outed agent's identity, the law provides the additional hurdle of proving a pattern of exposing agents with the belief that such actions would harm the government's spying capabilities. As a practical matter, this high degree of proof of willfulness or intentionality would be almost impossible to find in any circumstances other than in a Philip Agee clone (and maybe not even him). To interpret the statute more broadly would flout the longstanding American jurisprudential tradition of narrowly construing criminal laws, especially those that encroach upon free-speech values. The legislative history of the law could not make its narrow purpose more clear. The "principal thrust of this [statute] has been to make criminal those disclosures which represent a conscious and pernicious effort to identify and expose agents with the intent to impair or impede the foreign intelligence activities of the United States by such actions," reads the Senate report. Legislators emphasized that they crafted the bill to "exclude the possibility that casual discussion, political debate, [or] the journalistic pursuit of a story on intelligence . . . will be chilled." The statute was thus not intended to target executive branch officials who make disclosures--whether carelessly, out of personal or bureaucratic animus, or in pursuit of an important foreign-policy objective--while talking about national security matters with reporters. Indeed, even if Congress wanted to criminalize--which it in fact emphatically did not--executive branch release for policy reasons of a particular type of intelligence information, such a regulatory scheme would have serious separation-of-powers problems. The act was also not supposed to entangle reporters in a net of prison sentences, either as recipients of leaks or as disclosers in their own right. Yet here we are with a special prosecutor on the loose and in pursuit of jail terms for journalists regarding a dissemination of information which was relevant to the central foreign-policy question of our times--i.e., did the U.S. embark on its invasion of Iraq with a reasonable if mistaken belief that Saddam Hussein possessed weapons of mass destruction? For over 30 years, courts have recognized that reporters should not have to testify about their confidential conversations with government sources if there's no real compelling need to obtain the information. Normally, the specific need for the journalist's testimony in the underlying proceeding is weighed against the interest in the free flow of information to the public that the reporter's privilege is designed to promote, a balancing test D.C. Circuit Judge David Tatel cited in last week's argument. What clearly distinguishes this case is that the rickety platform--the supposed "crime"--that Mr. Fitzgerald is using to validate his inquiry could never amount to a compelling need for a journalist's testimony about confidential sources. If Mr. Fitzgerald falls back on that darling of prosecutorial zeal--obstruction of justice--to justify his investigation, the horror show that has been slowly building over the last few months will have reached its awful climax: jailing journalists for refusing to divulge their sources to a grand jury which never really had a crime to investigate, 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. What is to be hoped is that the judiciary can look at the legal and constitutional equities involved and confine the Intelligence Identities Protection Act to its original narrow purpose. The Valerie Plame affair has always been a minor part of a broader debate over the policy merits of ousting Saddam Hussein and should not provide the basis for trampling upon either executive branch prerogatives or the public's interest in receiving information from reporters about what is really going on in government. Messrs. Rivkin and Sanford are partners in the law firm of Baker & Hostetler LLP in Washington. Mr. Rivkin served in the administrations of Ronald Reagan and George H.W. Bush and is an expert in national security law. Mr. Sanford is an expert in First Amendment law.
