Is There a Plame Case If There Was No Crime?

Funny thing about the Internet — stuff, once put on it, never goes away and can circulate back into relevance just when, well, it’s relevant.

Take this Washington Post article from Jan. 12, 2005. It was written by Victoria Toensing, who was chief counsel to the Senate intelligence committee from 1981 to 1984 and served as a deputy assistant attorney general in the Reagan administration, and Bruce Sanford, a Washington lawyer specializing in First Amendment issues. Together, they drafted and negotiated the scope of the 1982 Intelligence Identities Protection Act, and thereby claim to be able to call “a timeout on a misguided and mechanical investigation in which there is serious doubt that a crime was even committed.”

Here’s a summary of their points:

  • In passing the IIP Act, Congress did not intend to prosecute a reporter who, in the course of exposing wrongdoing once or twice published the name of a covert agent. Which is why Robert Novak remains unindicted.
  • Congress did not intend for government employees to be vulnerable to prosecution for an unintentional or careless leak about an undercover identity. Which is why Scooter Libby and Karl Rove are as yet unindicted.
  • The agent in question must be classified as undercover , and must have been assigned to duty outside the U.S. currently or in the past five years. Valerie Plame was stationed at CIA HQ Langley.
  • The law requires that the disclosure be made intentionally, with the knowledge that the government is taking “affirmative measures to conceal [the agent’s] relationship” to the United States. There is little proof that the CIA was aggressively trying to protect Plame’s covert status.
  • When Joseph Wilson was sent to Niger by the CIA, he was not required to sign a standard confidentiality agreement, which enabled him to write the op-ed piece that undermined the Bush administration’s WMD argument.

The writers note that Chief U.S. District Judge Thomas Hogan, who is overseeing the grand jury, should call on the CIA to prove that it was affirmatively trying to protect Plame’s covert status as a means of ascertaining whether there indeed was a crime committed.

Toensing did work for Reagan, so one could suspect that she is partisan, but the argument does seem to hold water, and at the least should make us examine our assumptions about this case.

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