Politics As Usual

[Tyrone Slothrop]

Originally posted by sgtclub
No, I was resting on the fact that, perhaps, no law was violated.

What is your basis for this suggestion?

[Sidd Finch]

Originally posted by Tyrone Slothrop
What is your basis for this suggestion?

The bitch asked for it?

[sgtclub]

Originally posted by Tyrone Slothrop
What is your basis for this suggestion?

From http://www.opinionjournal.com/best/?id=110005343. There have been other reports as well, but I read this today so the cite was fresh in my mind. Ignore the tone, it's somewhat obnoxious.

What's more, the Post is correct about the law, and Marshall is either mistaken or disingenuous. As we explained in October:

In order for the alleged leakers to have violated the Intelligence Identities Protection Act, they would have to have known that [Plame] was covert and that the government was "taking affirmative measures to conceal" her relationship to the CIA. Novak's statement that the CIA made only "a very weak request" that he not use her name suggests the absence of such "affirmative measures," which would put the leakers in the clear legally if not politically.

In addition, the Novak column did not describe Plame as covert, only as "an Agency operative on weapons of mass destruction."

If indeed Plame was a covert agent, why wouldn't the CIA take "affirmative measures to conceal" her identity? The answer may turn on the legal definition of covert. As we also noted in October, an employee is a "covert agent" for the purposes of the statute if and only if he "is serving outside the United States or has within the last five years served outside the United States."

Little has been revealed publicly about the details of Plame's CIA career. But we do know that she gave birth to twins in 1999 or 2000, and it's unlikely that the CIA would send a new or expectant mother overseas on a dangerous assignment. Thus one may surmise that if indeed Plame was legally a covert agent, it was because she worked overseas during the early part of the five-year period preceding July 2003, when Novak's column appeared--that is, between mid-1998 and mid-1999. If she had been at a desk job at Langley for four years by last July, then concealing her identity, even if it was still classified, might not have been such a high priority for the agency.

A special prosecutor is investigating the Plame leak, so if we're wrong, it'll become clear soon enough. But at this point we'd be surprised if anyone gets charged, or indeed if any crime turns out to have been committed. And since Wilson appears to have lied about his wife's role in getting him the Niger gig, why should we lend any credibility at all to his claims about the leakers' motives?

[Mmmm, Burger (C.J.)]

Originally posted by sgtclub
You don't see the "decision by Novak" as being governmentally cohersed?

If a client choose to waive ACP, is the lawyer's disclosure of communications coerced? No--the right is the source's to be free from disclosure of identity. Novak (or the press generally) are simply the third party best positioned to assert that right. If the source can't claim it, why should Novak be able to? And what interest does it preserve if he maintains the confidentiality--of sources who leak information contrary to the wishes of the admin? That's not much of an interest--a bit like protecting the right of the press to publish illegally obtained private materials.

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
If a client choose to waive ACP, is the lawyer's disclosure of communications coerced? No--the right is the source's to be free from disclosure of identity. Novak (or the press generally) are simply the third party best positioned to assert that right. If the source can't claim it, why should Novak be able to? And what interest does it preserve if he maintains the confidentiality--of sources who leak information contrary to the wishes of the admin? That's not much of an interest--a bit like protecting the right of the press to publish illegally obtained private materials.

Yeah, except we allow state shield laws to apply to "unprivileged" matters, like videotape of a junkie shooting up in a flophouse in the presence of others. These laws don't really create a privilege relationship between reporter and source anyway. The underlying facts aren't privileged, but we've made a policy decision that we want people to trust the press. So we give the press a special little shield to use to protect their own asses from spending a night in jail every time their confidential source gets into hot water.

I don't know much about the governing law of D.C., but in California it's neither a right nor a privilege, and belongs only to the reporter* --- it's simply an immunity from contempt to refuse to respond to the subpoena. So if you've got videotape of the commission of a crime, and the DA subpoenas it, you can just refuse to produce the unaired material (the aired material, if any, is not subject to the shield law, and must be turned over). But if the reporter is sued for defamation and is asked for his notes or unaired tape, and refuses, there's nothing to stop issue sanctions or a jury instruction ("you may infer that failure to reveal the notes during this trial is an indication the notes contain nothing exculpatory of the defendant, or indicate the disputed quotation never occurred").

The Branzburg decision, which is the only "privilege" that applies in federal courts (to my knowledge), isn't really a privilege either. It's a balancing test that must be undertaken before the court turns to the reporter and says "cough it up." Just a way of giving some deference to First Amendment policies, but not much protection for the reporter.

*There are cases under CA's shield law holding reporters liable for breach of contract, where an agreement supported by consideration to keep a source confidential was alleged. The press argued that any K liability would be a 1AD infringement, and lost.

[Tyrone Slothrop]

Originally posted by sgtclub
From http://www.opinionjournal.com/best/?id=110005343:

• What's more, the Post is correct about the law, and Marshall is either mistaken or disingenuous. As we explained in October:
  
  In order for the alleged leakers to have violated the Intelligence Identities Protection Act, they would have to have known that [Plame] was covert and that the government was "taking affirmative measures to conceal" her relationship to the CIA. Novak's statement that the CIA made only "a very weak request" that he not use her name suggests the absence of such "affirmative measures," which would put the leakers in the clear legally if not politically.
  
  In addition, the Novak column did not describe Plame as covert, only as "an Agency operative on weapons of mass destruction."
  
  If indeed Plame was a covert agent, why wouldn't the CIA take "affirmative measures to conceal" her identity? The answer may turn on the legal definition of covert. As we also noted in October, an employee is a "covert agent" for the purposes of the statute if and only if he "is serving outside the United States or has within the last five years served outside the United States."
  
  Little has been revealed publicly about the details of Plame's CIA career. But we do know that she gave birth to twins in 1999 or 2000, and it's unlikely that the CIA would send a new or expectant mother overseas on a dangerous assignment. Thus one may surmise that if indeed Plame was legally a covert agent, it was because she worked overseas during the early part of the five-year period preceding July 2003, when Novak's column appeared--that is, between mid-1998 and mid-1999. If she had been at a desk job at Langley for four years by last July, then concealing her identity, even if it was still classified, might not have been such a high priority for the agency.
  
  A special prosecutor is investigating the Plame leak, so if we're wrong, it'll become clear soon enough. But at this point we'd be surprised if anyone gets charged, or indeed if any crime turns out to have been committed. And since Wilson appears to have lied about his wife's role in getting him the Niger gig, why should we lend any credibility at all to his claims about the leakers' motives?

The article seems to be saying there was no crime because:
(1) The leakers didn't know Plame was covert, and/or
(2) She wasn't covert, and/or
(2) The leakers didn't know that the government was taking affirmative measures to conceal her relationship with the CIA.

On (1), the fact that Novak called Plame an "operative" is pretty clear evidence that he knew she was covert. Someone (Marshall?) did a Lexis search of the other times Novak has used the word, and it's hard to argue. I would not want to defend that one in front of a jury.

On (2), there's the business about whether she's gone outside the country in the last five years. I thought I'd read that she had, but I don't know. You would imagine that this would be easy to nail down.

On (3) here's the key provision, I think (as opposed to what your author linked to, which is the statutory definitions):

• (a) Disclosure of information by persons having or having had access to classified information that identifies covert agent
  
  Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than ten years, or both. [/b]

15 U.S.C. s 421

I would wager that the "affirmative measures" requirement is met by (e.g.) the stamp on a piece of paper that says that Plame is classified. Your author seems to have odd notions about what a prosecutor would have to show in that regard.

edited for clarification; also,

Saying that Marshall is either "mistaken or disingenuous" about the law is not only aggressive in tone, it's not backed up by anything that follows. Marshall is, in fact, correct that outing a covert operative is not permitted to challenge the bona fides of a political opponent. And I said to Slave, I don't recall that Wilson said anything about his wife -- the leakers brought her into this to punish him, not to inform public debate. Which is how everyone understood it at the time.

[Sidd Finch]

Originally posted by sgtclub
Ignore the tone, it's somewhat obnoxious.

True dat. Is this the new Spree?

In order for the alleged leakers to have violated the Intelligence Identities Protection Act, they would have to have known that [Plame] was covert and that the government was "taking affirmative measures to conceal" her relationship to the CIA. Novak's statement that the CIA made only "a very weak request" that he not use her name suggests the absence of such "affirmative measures," which would put the leakers in the clear legally if not politically.

In addition, the Novak column did not describe Plame as covert, only as "an Agency operative on weapons of mass destruction."

If indeed Plame was a covert agent, why wouldn't the CIA take "affirmative measures to conceal" her identity? The answer may turn on the legal definition of covert. As we also noted in October, an employee is a "covert agent" for the purposes of the statute if and only if he "is serving outside the United States or has within the last five years served outside the United States."

This doesn't do much for me, justification-wise. Novak's statement that the request was "weak" is self-serving, and not particularly relevant. Novak, of course, had no incentive to determine if the CIA took affirmative measures -- to the contrary, doing so would risk him knowingly participating in the crime, (perhaps, and presumably) not in a way that brings him criminal culpability but one that could injure his standing with his sources and readers.

That the CIA made any request at all -- regardless of how Novak characterizes it -- suggests that Plame was covert, and that the CIA had taken steps to conceal her identity. That is especially so given the context -- Plame's husband was helping impugn the CIA's competence and intergrity.

Incredibly, having no information besides the "suggestion" that he reads into Novak's characterization of the CIA's request, the writer then goes on to assert that the CIA did not take affirmative steps to conceal Plame's identity as if this were an established fact. From that bogus argument, he builds the conclusion that she was not covert because, after all, if she were, "why wouldn't the CIA have taken affirmative steps?" This is a house-of-cards argument. Neither the author nor Novak have any interest in seeing past the end of their respective noses, but they pretend that provides them complete information.

The notion that an "operative" may not be "covert" is also somewhat suspect, if I recall my days of reading Covert Action Information Bulleting correctly. Of course, that was back when a Republican Administration thought that disclosing the identity of CIA operatives was a bad thing -- and one for which even the press could come under attack.

The aspect of the law re: needing to be outside the country within the last five years is news to me. If that's true, and if Plame has not had any activity outside the US in five years (kinda difficult, I would think, given her area), then the conduct would not be criminal under this statute at least. Just reprehensible.

[Tyrone Slothrop]

Setting the legal niceties aside, you would think that if the leakers had a principled basis for doing what they did, they would come forward and say, hey, we committed no crime, instead of hiding in the White House and dragging their boss through this.

[Not Me]

Originally posted by Sidd Finch
Hopefully he can't cash the check if you can't spell his name right.

Credit card online. I checked and the charge went through. I feel good about participating in our thriving democracy. For those of you interested, here is the link:

http://www.votenader.org/contribute/...ute_online.php

Go Ralph Go!!!!

[Not Me]

Anyone think that GWB lost any votes he would have gotten had he attended the NAACP convention?

http://www.suntimes.com/output/news/...s-naacp12.html

[SlaveNoMore]

Tyrone Slothrop
Setting the legal niceties aside, you would think that if the leakers had a principled basis for doing what they did, they would come forward and say, hey, we committed no crime, instead of hiding in the White House and dragging their boss through this.

Trying to catch up from the last 5 hours...

On this point - I agree with you.

[Atticus Grinch]

Fox News calls documentary "biased"; subtlely warns that any media outlet reporting on it outside the capsule reviews may be subject to "possible out of context and biased documentaries" of their own. Link. Wonder where those will come from? [sneer]Hollywood?[/sneer]

[Atticus Grinch]

Originally posted by Not Me
Anyone think that GWB lost any votes he would have gotten had he attended the NAACP convention?

Anyone worried that this is actually 43's only remaining decision-making paradigm at this point?

[ltl/fb]

Originally posted by Atticus Grinch
Anyone worried that this is actually 43's only remaining decision-making paradigm at this point?

Not worried. Worried implies that one entertains another possibility.

NB: This is primarily a joke. Look for things to get funnier as I continue drowning my sorrows in alcohol.

[Shape Shifter]

Originally posted by Tyrone Slothrop And I said to Slave, I don't recall that Wilson said anything about his wife -- the leakers brought her into this to punish him, not to inform public debate. Which is how everyone understood it at the time.

I thought they were also sending a message to any CIA agents who may be inclined to disagree with the administration.