The Plame case is more serious in that classified information is at issue. But the fact that journalists are in the midst of the fray turns out not to be very unusual at all in the current climate. Indeed, the Executive Director of the Reporter's Committee for Freedom of the Press, Lucy Dalglish has noted that "[t]here are more than two dozen cases pending across the United States where journalists are being asked to operate as investigators for the government and litigants."
At the same time, even U.S. Department of Justice Guidelines admit that "the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues."
As DOJ's own statement implies, this trend of going after journalists who try to protect confidential sources represents a serious threat to freedom of the press.
Both the House and Senate are currently considering whether to enact legislation that would shield journalists under these circumstances. That legislation should succeed - and should be retroactive, so that it protects the two reporters currently facing jail in relation to the Plame investigation.
These reporters are especially in need of protection because their sources may, in the end, have committed no crime. As I will explain, reasonable minds can differ as to whether the leak violated the Intelligence Identities Protection Act of 1982.
How The Plame Scandal Began
To begin, some background on the Plame leak is in order.
In his 2003 State of the Union address, President Bush claimed that Iraq was attempting to acquire uranium in Niger.
In a July 6, 2003 Op-ed published in the New York Times, former Ambassador Joseph C. Wilson IV - who had traveled to Niger in 2002 at the behest of the CIA -- challenged Bush's assertion. Wilson said, moreover, that he had earlier told the White House that the Niger uranium claim was false.
On July 14, 2003, political columnist Robert D. Novak attacked Wilson's credibility - and in the process, identified Wilson's wife, Valerie Plame, as a CIA "operative on weapons of mass destruction." Novak cited two unnamed "senior administration officials" as his sources.
Subsequently, various journalists reported receiving the same information. The leak was quickly characterized as a politically motivated attack on Wilson -- revenge for his having publicly criticized the Bush administration.
Ultimately, the U.S. Attorney in Chicago, Patrick Fitzgerald, was appointed to serve as a Special Counsel and investigate the leak. Using his grand jury authority, Fitzgerald subpoenaed numerous journalists. They included Matthew Cooper of Time Magazine; Tim Russert, host of NBC's "Meet the Press"; Walter Pincus and Glenn Kessler of The Washington Post; and Judith Miller of The New York Times.
Some reporters were able to testify because their White House source consented to allow them to do so, and because they were able to set limits on their testimony that made it acceptable to them. But Cooper and Miller declined this route .
As a result, Chief District Judge Thomas Hogan held Cooper and Miller in contempt in October 2004. And just recently -- on February 15, 2005 - a three-judge panel of the D.C. Circuit Court of Appeals upheld Judge Hogan's ruling, finding that there is no legal privilege that protects reporters who refuse to testify before a grand jury and withhold the names of sources.
In so holding, the D.C. Circuit panel followed the Supreme Court's 5-4 decision in Branzburg v. Hayes. In that 1972 decision, the Court held that the First Amendment does not create an absolute privilege for reporters seeking to protect confidential sources.
Now, Cooper and Miller each face up to 18 months imprisonment, as well as having to pay fines. Attorneys for the journalists noted their intent to appeal the decision to the full D.C. Circuit and, if necessary, to the Supreme Court.
The Federal Criminal Law the Leakers May - Or May Not - Have Violated
If the journalists' alleged crime is contempt of court, what is the leakers' alleged crime?
Allegedly, the leak violated the Intelligence Identities Protection Act of 1982, which I will refer to as "the Act". (The Act was enacted as an amendment to a prior statute -- the National Security Act of 1947.)
According to the Senate Report, the Act was a response to concerns raised regarding "the systemic effort by a small group of Americans, including some former intelligence agency employees, to disclose the names of covert intelligence agents."
Primary among this group was former CIA officer Philip Agee. Agee quit the CIA in the late 1960s to advocate against his former employer, particularly by writing tell-all books that named names. Another in the group was Lewis Wolf, then co-editor of the "Covert Action Information Bulletin," which repeatedly sought to expose the identities and personal information of CIA officers worldwide.
The law did, indeed, have the practical effect of silencing Agee and Wolf. Otherwise, though, the statute has proved a dead letter - on the books, but not enforced.
Two decades have passed since the Act was created, during which time untold thousands of classified secrets (including covert identities) have been leaked. The FBI routinely investigates such leaks. Yet only Sharon Scranage, a former CIA employee stationed in Ghana, seems to have been prosecuted under the Act. (Scranage pled guilty in 1985. Presumably spies such as Aldrich Ames and Robert Hanssen could have also been prosecuted under the Act) The reason for this apparently is that, even when compared to espionage, identifying the leaker is virtually impossible to prove standing alone.
Putting The Cart Before The Horse: Was A Crime Committed by the Leakers?
Certainly, the Plame leak was damaging. Among other potential harms, it provided foreign nations with a roadmap from which to track Plame's every past movement, and probe into her relationships with people and business who might have worked with her or provided her cover.
But was the Plame leak illegal?
As journalist Jack Shafer of Slate pointed out in his online column in 2003, and as Washington, D.C. attorneys Victoria Toensing and Bruce W. Sanford (both of whom participated in drafting the Act) have recently noted, it is unclear whether a crime actually occurred.
The two relevant provisions of the Act cover instances where the identity of the covert agent is learned through direct or indirect authorized access to classified information. (Disclosing an identity that was obtained through unauthorized access, such as corridor gossip, is not a criminal act.)
Inadvertent disclosures are exempt. To prevail, the government must prove that the individual "intentionally" disclosed the information "knowing" that it identified a covert agent.
In addition, ill-guarded identities can be disclosed without criminal penalty under the statute: The United States must also be "taking affirmative measures" to conceal the agent's identity, if a prosecution is to be brought. Yet when she was "outed," Plame had apparently been working at a desk job at CIA Headquarters for some time - suggesting her CIA affiliation, at least, was no secret.
Finally, for the Act to apply, the covert agent had to have worked outside the United States in the last five years. It's not clear if Plame did so.
For all these reasons, and no doubt others, the Act may not even apply to the Plame leak.
Prosecutors Should Not Go After Journalists Unless a Crime Clearly Occurred
Moreover, the fact that there may have been no crime here is highly relevant to the decision to go after journalists Cooper and Miller - forcing them to face jail if necessary. Both the Act and the Justice Department's Guidelines suggest that journalists should not be targeted unless the crime is clear.
The relevant Guideline holds, in particular, that "there should be reasonable grounds to believe, based on information obtained from non-media sources, that a crime has occurred" before reporters are subpoenaed.
Meanwhile, it's clear that the Intelligence Identities Protection Act was crafted in a manner intended to protect journalists from jail. The law expressly targeted leakers, not journalists (other than those who repeatedly and gratuitously revealed names). The Congress was quite concerned with the potential impact of the Act on the First Amendment. The Conference Report noted that the Act was not intended to "affect the First Amendment rights of those who disclose the identities of agents as an integral part of another enterprise such as news media reporting of intelligence failures or abuses…." (Emphasis added.)
Thus, the fact that journalists - not leakers - are facing jail now is contrary to the intent of both the Justice Department and the relevant statute. Yet in all probability, only the Supreme Court can spare the reporters now.
It will be a tragic irony if, in the end, journalists are incarcerated, yet the leakers are never found or punished.