REVIEW & OUTLOOK
The Novak Exception--II
The Valerie Plame kerfuffle exposes the hypocrisy of Chuck Schumer and the press.
What a comedown. Back when Robert Novak's column naming Bush Administration critic Joe Wilson's wife as a CIA officer became the scandal flavor of the day, the air was thick with charges of "crime" and "felony." But today even Mr. Wilson's attorney has backed off those claims. In his letter to the editor, the best Christopher Wolf can do is assert that naming Valerie Plame was "probably illegal."
Probably? That's all, folks?
Maybe Mr. Wolf is hedging because he has read the law in question. It's called the Intelligence Identities Protection Act, and it was passed in 1982 to stop renegade CIA officers such as Philip Agee and his allies from exposing covert U.S. intelligence agents overseas. That law warrants closer reading today, especially by those journalists who don't seem to understand the First Amendment implications of egging on prosecutors pursuing the sources of a fellow newspaperman.
The easiest conclusion from reading this law is that Mr. Novak didn't violate it. In the only section (Title 50, Section 421 of the U.S. Code) that deals with non-officials, the act limits prosecution to those who expose agents "in the course of a pattern of activities" they had reason to believe would undermine U.S. foreign intelligence activities. That's because this was a law written with such anti-intelligence publications as CounterSpy and the Covert Action Information Bulletin in mind.
Victoria Toensing, who helped draft the bill as chief counsel to the Senate Intelligence Committee, says its narrow language is no coincidence. "The language was specifically designed to distinguish between exposures that came in the course of legitimate journalism and those intending to subvert our intelligence services," she says. "And it was shaped by concerns we heard expressed at the time by the leading newspapers."
Even for government officials, the threshold for prosecution is high. The person who leaked Ms. Plame's name would have to have acquired it, directly or indirectly, as a result of having "authorized access" to classified information. A prosecutor would also have to prove the burning of this covert agent was done intentionally and with the knowledge that the CIA was "taking affirmative measures" to keep the name confidential.
All of which puts an interesting tint on the selective outrage we've been hearing. New York Senator Chuck Schumer was one of the first to claim shock over the Novak column, indignantly thundering how the leak "was tantamount to putting a gun to that agent's head." That's interesting, because as Congressman Schumer he was one of only 56 to vote against the law whose sacral character he now invokes.
In other words, when the object of this law was CIA turncoat Philip Agee, Mr. Schumer deemed the law more dangerous than the exposure. But now that we have a bona fide newsman at the center of this storm he wants someone to hang.
There's a method to this political madness. For one thing, it has succeeded in distracting attention from the substance of the Novak charge. A few papers, including this one, early on reported the existence of a classified Bureau of Intelligence and Research document describing a meeting at which Ms. Plame is said to have suggested her husband for the Niger yellowcake investigation. The CIA has said that the document had it wrong, but thus far the press corps has been decidedly uninquisitive about whether the CIA itself is trying to deflect attention from a case of nepotism.
What especially troubles us is that if the Justice Department investigators do not find who leaked Ms. Plame's name, Mr. Novak may be slapped with a subpoena and held in contempt if he sticks to journalistic principle and refuses to give up his sources. And it's not just Mr. Novak: Earlier this week Newsday reported that prosecutors are seeking all records of any Administration contacts with two dozen other newsmen, including Journal reporter Greg Hitt and Editorial Page Editor Paul Gigot.
At least Mr. Wolf makes no bones about where all this is headed. His letter invokes the case of Wen Ho Lee, who is asking a federal judge to hold five reporters in contempt for refusing to disclose who gave them information about the former Los Alamos National Laboratory scientist.
If the legal push in these cases does come to shove, we may well end up with a Supreme Court pronouncing even more definitively that the First Amendment includes no privilege covering the protection of confidential sources. And the road to that blow to a free press will be paved by all the liberal writers who thought they could discard Bob Novak with no effect on their own journalism.
