4 November 2005

Wall Street Journal, Opinion Page, November 4, 2005


Neither Criminal Nor Unethical


In the aftermath of "Scooter" Libby's indictment, leading Democrats have been demanding that President Bush apologize for the release of Valerie Plame's name to the media, fire Karl Rove and chastise Dick Cheney. He should not oblige. Ms. Plame's identification as a CIA employee was not a crime because she was not a covert agent -- a readily ascertainable fact that should have concluded Special Counsel Fitzgerald's investigation almost as soon as it got underway. Moreover, revealing Ms. Plame's role in husband Joseph Wilson's 2002 mission to Africa was relevant to an accurate understanding of his later allegations against the administration.

The law at issue here is the 1982 Intelligence Identities Protection Act (IIPA), which makes it a federal crime, in certain circumstances, to reveal the identity of a covert agent. According to the IIPA's legislative history, it was enacted precisely because the existing 1917 Espionage Act, while seemingly all-encompassing, was "inadequate" to the task. In filling this void with the IIPA, Congress also acknowledged the competing interests at stake -- balancing national security imperatives against free speech considerations. The law was not designed to shield the CIA or its employees from all public scrutiny or criticism, since it criminalizes only those disclosures which "clearly 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."

Congress did not, as a result, forbid the identification of anyone serving in a "classified" status. Genuinely covert agents alone were to be protected -- "only those identities which it has determined to be absolutely necessary to protect for reasons of imminent danger to life or significant interference with vital intelligence activities." Thus, under the act, criminal sanctions can be imposed only if the identity revealed is (1) of someone whose status is classified and who is serving, or has served within five years, outside the U.S.; and (2) where the alleged leaker knows that the U.S. is "taking affirmative measures to conceal such covert agent's intelligence relationship to the United States." Indeed, the carefully worded language reflects a clear congressional purpose to make this law the exclusive venue for punishing the disclosures of intelligence agents' identities -- removing this offense from the Espionage Act's purview altogether. (Any other interpretation would lead to an absurd result, making it easier to punish the leaking of an ostensibly classified U.S.-based CIA analyst than the outing of a genuinely at-risk covert operative overseas.)

Ms. Plame simply did not meet the IIPA's demanding test. She was not undercover overseas, and had not evidently been posted abroad since at least 1997. She was living under her own name and working a desk job at headquarters. To the extent that her job status was "not common knowledge outside the intelligence community" as asserted by Mr. Fitzgerald, this is irrelevant. Leaving aside the coy nature of this claim, which begs the question whether her affiliation was known only in the U.S. intelligence community, or the global intelligence community (including both friendly and hostile foreign intelligence services), IIPA's legislative history makes clear that this is insufficient to merit protected status. Merely because the U.S. has not publicly acknowledged or revealed the relationship does not by itself satisfy the "affirmative measures" required for liability under the IIPA.

Moreover, whatever value Ms. Plame may have had as a viable covert agent was surely eliminated years before the alleged "leak," when she married a U.S. diplomat who himself published her name in his biographical materials. The fact that her husband chose to become a public figure in a debate about the very discipline she pursued at the CIA -- WMDs -- eliminated whatever shreds of anonymity that remained. The reason Mr. Fitzgerald did not charge anyone with leaking Ms. Plame's name, then, is clear. It was not because, as he implied at his Oct. 28 press conference, there was insufficient evidence. It was, rather, because there was in fact no crime as a matter of law. The true scandal here is that, despite Ms. Plame's non-covert status, Mr. Fitzgerald pressed ahead, forcing numerous journalists to testify and actually jailing Judith Miller.

Of course, the ethical standard for government officials must be higher than a mere avoidance of criminality -- a point President Bush has made clear. But there was nothing unethical about revealing to the media that Mr. Wilson's wife had a role in his selection for the Niger mission. This was not a retaliatory attack on Ms. Plame. How he got the job was highly relevant to the public debate he himself initiated over his conclusions, and especially as a means of rebutting any implication that he was selected by, or reported to, Vice President Cheney.

In fact, Mr. Wilson's mission was in the nature of an audit -- an effort to determine the accuracy of particular information regarding Saddam's alleged efforts to buy Niger yellowcake uranium. The need for a genuinely independent audit was all the more palpable, and the problem created by choosing a CIA quasi-insider all the more real, given the agency's own record. While the CIA racked up its share of analytical blunders during the Cold War, it got right the basics of the Soviet military threat, aided by a steady stream of defectors, superb technical collection means and competitive analysis procedures. Unfortunately, in the post-Cold War environment, deprived of defector input, unable to penetrate the new intelligence targets and gripped by "group think," the CIA got many critical things wrong, including the pace of Saddam's WMD program before the first Gulf War and, of course, the threat posed by al Qaeda.

In view of this history, and precisely because the CIA was skeptical of the Niger claims, sending an outside expert to assess them was absolutely correct. The fact that the expert chosen by the CIA was so closely connected to its own bureaucracy was indispensable in assessing the value of that expert's work -- especially after he had openly waded into the debate. In short, the revelation of Ms. Plame's connection to the CIA was a public service, neither criminal nor unethical.

Messrs. Rivkin and Casey are lawyers in Washington.

from the FAS Project on Government Secrecy
Volume 2005, Issue No. 103
November 4, 2005


Philip Agee, the renegade CIA officer whose efforts to publicly expose CIA employees working under cover around the world in the 1970s led to the enactment of the Intelligence Identities Protection Act of 1982, says he now opposes such activities and specifically disdains the disclosure of CIA officer Valerie Plame's name by senior White House officials.

"I had my reasons for revealing the identities of agents and the White House had different ones," Agee said.  "However, I am now categorically opposed to making their names public."

Agee's remarks were quoted in the Greek newspaper To Vima tis Kiriakis on November 2, as translated by the CIA's Foreign Broadcast Information Service.

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