Dated August 15, 2003.
Why was Novak able to learn this highly secret information? It turns out that he didn't have to dig for it. Rather, he has said, the "two senior Administration officials" he had cited as sources sought him out, eager to let him know. And in journalism, that phrase is a term of art reserved for a vice president, cabinet officers, and top White House officials.
On July 17, Time magazine published the same story, attributing it to "government officials." And on July 22, Newsday's Washington Bureau confirmed "that Valerie Plame ... works at the agency [CIA] on weapons of mass destruction issues in an undercover capacity." More specifically, according to a "senior intelligence official," Newsday reported, she worked in the "Directorate of Operations [as an] undercover officer."
In other words, Wilson is/was a spy involved in the clandestine collection of foreign intelligence, covert operations and espionage. She is/was part of a elite corps, the best and brightest, and among those willing to take great risk for their country. Now she has herself been placed at great - and needless - risk.
The Espionage Act of 1917 and the Intelligence Identities and Protection Act of 1982 may both apply. Given the scant facts, it is difficult to know which might be more applicable. But as Senator Schumer (D.NY) said, in calling for an FBI investigation, if the reported facts are true, there has been a crime. The only question is: Whodunit?
The Reagan Administration effectively used the Espionage Act of 1917 to prosecute a leak - to the horror of the news media. It was a case that was instituted to make a point, and establish the law, and it did just that in spades.
In July 1984, Samuel Morrison - the grandson of the eminent naval historian with the same name - leaked three classified photos to Jane's Defense Weekly. The photos were of the Soviet Union's first nuclear-powered aircraft carrier, which had been taken by a U.S. spy satellite.
Although the photos compromised no national security secrets, and were not given to enemy agents, the Reagan Administration prosecuted the leak. That raised the question: Must the leaker have an evil purpose to be prosecuted?
The Administration argued that the answer was no. As with Britain's Official Secrets Acts, the leak of classified material alone was enough to trigger imprisonment for up to ten years and fines. And the United States Court of Appeals for the Fourth Circuit agreed. It held that the such a leak might be prompted by "the most laudable motives, or any motive at all," and it would still be a crime. As a result, Morrison went to jail.
The Espionage Act, though thrice amended since then, continues to criminalize leaks of classified information, regardless of the reason for the leak. Accordingly, the "two senior administration officials" who leaked the classified information of Mrs. Wilson's work at the CIA to Robert Novak (and, it seems, others) have committed a federal crime.
Another applicable criminal statute is the Intelligence Identities Act, enacted in 1982. The law has been employed in the past. For instance, a low-level CIA clerk was convicted for sharing the identify of CIA employees with her boyfriend, when she was stationed in Ghana. She pled guilty and received a two-year jail sentence. (Other have also been charged with violations, but have pleaded to unrelated counts of the indictment.)
The Act primarily reaches insiders with classified intelligence, those privy to the identity of covert agents. It addresses two kinds of insiders.
First, there are those with direct access to the classified information about the "covert agents." who leak it. These insiders - including persons in the CIA - may serve up to ten years in jail for leaking this information.
Second, there are those who are authorized to have classified information and learn it, and then leak it. These insiders - including persons in, say, the White House or Defense Department - can be sentenced to up to five years in jail for such leaks.
The statute also has additional requirements before the leak of the identity of a "covert agent" is deemed criminal. But it appears they are all satisfied here.
First, the leak must be to a person "not authorized to receive classified information." Any journalist - including Novak and Time - plainly fits.
Second, the insider must know that the information being disclosed identifies a "covert agent." In this case, that's obvious, since Novak was told this fact.
Third, the insider must know that the U.S. government is "taking affirmative measures to conceal such covert agent's intelligence relationship to the United States." For persons with Top Secret security clearances, that's a no-brainer: They have been briefed, and have signed pledges of secrecy, and it is widely known by senior officials that the CIA goes to great effort to keep the names of its agents secret.
A final requirement relates to the "covert agent" herself. She must either be serving outside the United States, or have served outside the United States in the last five years. It seems very likely that Mrs. Wilson fulfills the latter condition - but the specific facts on this point have not yet been reported.
What is not in doubt, is that Mrs. Wilson's identity was classified, and no one in the government had the right to reveal it.
Virtually all the names of covert agents in the CIA are classified, and the CIA goes to some effort to keep them classified. They refuse all Freedom of Information Act requests, they refuse (and courts uphold) to provide such information in discovery connected to lawsuits.
Broadly speaking, covert agents (and their informants) fall under the State Secrets privilege. A federal statute requires that "the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure." It is not, in other words, an option for the CIA to decide to reveal an agent's activities.
Dated October 10, 2003.
In the October 13 Newsweek, Andrea Mitchell is quoted as saying, "I heard in the White House that people were touting the Novak column and that was the real story." Newsweek also reported that Wilson had received a call from Chris Matthews, of MSNBC's "Hardball," who told him, "I just got off the phone with Karl Rove, who said your wife was fair game."
In short, after the leak it certainly appears that the White House spread the word, further exploiting the leak.
But even if the White House was not initially involved with the leak, it has exploited it. As a result, it may have opened itself to additional criminal charges under the federal conspiracy statute.
This elegantly simple law has snared countless people working for, or with, the federal government. Suppose a conspiracy is in progress. Even those who come in later, and who share in the purpose of the conspiracy, can become responsible for all that has gone on before they joined. They need not realize they are breaking the law; they need only have joined the conspiracy.
Most likely, in this instance the conspiracy would be a conspiracy to defraud - for the broad federal fraud statute, too, may apply here. If two federal government employees agree to undertake actions that are not within the scope of their employment, they can be found guilty of defrauding the U.S. by depriving it of the "faithful and honest services of its employee." It is difficult to imagine that President Bush is going to say he hired anyone to call reporters to wreak more havoc on Valerie Plame. Thus, anyone who did so - or helped another to do so - was acting outside the scope of his or her employment, and may be open to a fraud prosecution.
What counts as "fraud" under the statute? Simply put, "any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government." (Emphasis added.) If telephoning reporters to further destroy a CIA asset whose identity has been revealed, and whose safety is now in jeopardy, does not fit this description, I would be quite surprised.
If Newsweek is correct that Karl Rove declared Valerie Plame Wilson "fair game," then he should make sure he's got a good criminal lawyer, for he made need one. I've only suggested the most obvious criminal statute that might come into play for those who exploit the leak of a CIA asset's identity. There are others.
Dated August 24, 2004.
Consider how the balancing test might play out:
First, let's look at the government's interest in getting the reporters' testimony. There's a real law enforcement need to find out who committed this crime. And it doesn't seem that the perpetrators' identities have been revealed in the discovery the Special Counsel has already received from the White House. So it is likely that only the subpoenaed (or soon-to-be-subpoenaed) reporters know who exposed Plame as a CIA agent.
Second, let's look at the First Amendment interest here. The confidential sources were likely willful perpetrators committing a federal felony - not morally-compelled whistleblowers who violated government secrecy rules along the way. And that's a very important distinction.
We need whistleblowers for the press to function. Deep Throat, depending on who he or she was, might have broken some laws, or violated attorney-client privilege, to talk to Woodward and Bernstein. But if so, it was to serve the greater social good - revealing corruption at the highest levels.
What we don't need is willful perpetrators like those who seem to have been behind the Plame leak. What social purpose was served by outing a CIA agent? Here, the sources seem to have served not the social good or the functioning of democracy, but a personal vendetta - punishing former Ambassador Wilson by putting his wife in danger. And it's not just Valerie Plame who was placed in jeopardy: It's all those whom she protected in her service as a CIA agent.
The sources' disclosure was the crime here, and that is exactly what is being investigated. The sources didn't report a crime by speaking out - they committed one by talking to reporters. So protecting the disclosure, protects the crime.
Dated October 5, 2004.
In the Plame scandal, those who intentionally leaked her identity are by definition criminals - as long as they knew she was not only a CIA agent, but a covert agent, which should have been obvious.
Moreover, when a source is contacting numerous reporters to try to get the word out, in order to serve his own political objectives, one could reasonably question if the source's communications truly deserve the term "confidential." This seems to have plainly been the case with the Plame leakers. It might also have been the case with the National Guard documents.
Rove Can't Recall...
Rove told the grand jury that by the time Novak had called him, he believes he had similar information about Wilson's wife from another reporter but had no recollection of which reporter had told him about it first, the source said.
Rove Admits Intent...
Rove told the grand jury that four days later, he had a phone conversation with Time magazine reporter Matt Cooper and - in an effort to discredit some of Wilson's allegations - told Cooper that Wilson's wife worked for the CIA, though he never used her name.
As can be seen above, Rove admitted himself what his intent was. He leaked a CIA agent's identity - knowing she had worked uncover in the past 5 years outside the United States.
Rove's memory needs to start working or he goes to jail to sit right beside the two reporters that were used as tools by him and Libby.