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by Michael
Gillespie
www.dissidentvoice.org
August 12, 2004
However much some of us might like to see Right-wing hack and hatchet man Robert Novak cooling his expensively-shod ideological heels in the slammer for a few days, weeks, or months, that prospect may not bode well for the future of professional journalism in this country. But then, the standards of professional or, more accurately, corporate journalism, have been in decline for decades, and the occasional bouts of public hand-wringing over media deregulation and consolidation offered up by corporate media celebrities claiming to be the conscience of the profession have done little or nothing to impede the steady and enervating erosion of emphasis on public service values in both print and broadcast journalism. So don’t expect Big Media to hand you the information you need in order to understand the importance of what has been called the White House leak scandal, Leak-gate, the Wilson scandal, Affair la Plame, the Wilson-Plame scandal, and the Plame leak case.
There are two questions at the center of White House leak scandal, a) which senior Bush administration officials did the leaking? and b) should the journalist’s First-Amendment-based Constitutional right to a confidential relationship with his or her source take precedence over the public’s interest in investigating and prosecuting crime, in this case, a high crime, a federal felony committed, perhaps, by senior Bush administration officials in the context of a leak to a representative of the press? If the Bush administration has its way, the American public will never find out the answer to the first question, but the answer to the second question, to which there will be an answer, may entail consequences far more dire than most American would anticipate.
Both questions arose in the context of Novak’s July 14, 2003 column published by the conservative TownHall.com website. In his explosive column about former U.S. foreign service officer and ambassador Joseph Wilson’s CIA-sponsored trip to Niger to investigate reports that Saddam Hussein had attempted to obtain nuclear material from Niger, Novak revealed the name of an undercover CIA agent. Novak wrote that Wilson’s “wife, Valerie Plame, is an Agency operative on weapons of mass destruction. Two senior administration officials told me Wilson's wife suggested sending him to Niger to investigate the Italian report. The CIA says its counter-proliferation officials selected Wilson and asked his wife to contact him. ‘I will not answer any question about my wife,’ Wilson told me.”
The problem, of course, is that the Intelligence Identities Protection Act of 1982 protects the identities of CIA and other undercover intelligence officers.
“Whoever, as a result of having 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, United States Code, or imprisoned not more than ten years, or both” --50 USCS § 421. A 1999 amendment stipulates fines ranging from $15,000 to $50,000 and mandates that any term of imprisonment shall run consecutively with any other sentence of imprisonment.
While Novak, as a journalist, has a Constitutional right to do what he did, there is wide agreement that, at best, he exercised extraordinarily poor judgment in revealing Plame's name and position with the CIA. The "two senior administration officials," on the other hand, if they had "authorized access to classified information" that Plame was a covert operative and purposefully identified Plame as a CIA operative, committed a federal felony when they told Novak that Valerie Plame was, in his words, "an Agency operative on weapons of mass destruction." Novak had contacted the CIA and was asked not to reveal Plame's identity. He ignored the CIA's request and outed Plame anyway, gratuitously.
As columnist Michael Smerconish noted in his Philly.com column October 9, 2003, "Why Novak really chose to out Valerie Plame is anybody's guess. If Novak's goal was to explain how Wilson, unsympathetic to action against Iraq, was selected for this sensitive task, he had other options available to him while still protecting national security. He could have said Wilson was the choice of an unnamed low-level career CIA employee. He could have said Wilson was the choice of an unnamed low-level career CIA employee with whom he had a personal relationship. He could have even said that Wilson was the choice of a low-level career CIA employee with whom he shares a bed, which would have given her some modicum of protection given that she uses her maiden name! But instead he chose to disregard the safety of one of our intelligence personnel in the midst of a war against terrorism."
Moreover, Plame was not an analyst working in the safety and security of CIA headquarters in Langley, VA. Rather, she was a field operative, traveling abroad and working with sources in foreign countries. Her job was to gather intelligence on those who traffic in weapons of mass destruction. By revealing her name to Novak and other journalists, the leakers destroyed the results of years of work and put many lives at risk in an area of intelligence work that the Bush administration has said is of the gravest importance to national security.
Numerous journalists and commentators working for a variety of news organizations have reported Wilson's statement that the leak by Bush administration officials was part of a White House campaign to discredit and punish him for publicly challenging President Bush’s January 2003 assertion in his State of the Union Address that British intelligence had “learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” Wilson has also suggested the leak was intended by hawks in the Bush administration as a warning to diplomats and others that any future attempts to interfere with neoconservatives’ plans for a massive military effort to re-organize the Middle East would carry a high price indeed. On the face of it, it appears that “senior administration officials” may well have overplayed their hand and committed a federal felony when they leaked classified information to Novak, a conservative pundit who dutifully repeated the information to his readers.
Early on, the CIA formally requested that the FBI investigate the leak, but it was late September before the Department of Justice opened an investigation. At the end of the year, Attorney General Ashcroft recused himself from the investigation naming Patrick Fitzgerald, the U.S. attorney in Chicago, as a special prosecutor to handle the matter. Fitzgerald reports to Deputy Attorney General James Comey, who says he has been given “the power and authority to make whatever prosecutorial judgment” he might need to make, according to an article published on December 30, 2003 in San Jose, CA’s The Mercury News.
Stuart Taylor, writing in the Legal Times on February 16, 2004, noted that it “appears increasingly possible that . . . Novak and other journalists may be subpoenaed in a potentially explosive criminal investigation.”
And now, indeed, reporters have been subpoenaed, and Time reporter Matthew Cooper has been held in contempt of court after failing to reveal the names of sources who disclosed to him that Plame was an undercover CIA operative.
Taylor quoted from Justice Potter Stewart’s opinion in Branzburg v. Hayes (1972): “The reporter’s constitutional right to a confidential relationship with his source stems from the broad societal interest in a full and free flow of information to the public. It is this basic concern that underlies the Constitution’s protection of a free press, because the guarantee is ‘not for the benefit of the press so much as for the benefit of us all.’” Taylor reported that, “unfortunately for any subpoenaed journalists—and their sources—Justice Stewart’s argument for a broad First Amendment reporter’s privilege came in a dissenting opinion. Although subpoenas of reporters are extremely rare, the widespread notion that they have a broad First Amendment privilege not to testify rests upon shaky legal foundations, at least in the context of criminal investigations.”
According to Taylor, Justice Byron White, who wrote the majority opinion in Branzburg v. Hayes, came close to holding that no reporter’s privilege exists in criminal grand jury investigations, and it was Justice Lewis Powell, Jr., who cast the deciding vote and qualified White’s holding in a concurrence writing that the courts should block demands that reporters disclose the names of their confidential sources unless investigators can prove a legitimate need for the information. Many lower courts have protected the journalist’s (and the public’s) interests in shielding their sources, but mostly in civil cases.
“In the current case, in which the reporters were firsthand witnesses to possibly criminal acts, the odds are strong that the courts would reject any claims of privilege, order the reporters to name their sources, and jail them for contempt if they refused,” wrote Taylor.
The three part test that Branzburg v. Hayes imposes on investigators is this: When a reporter is subpoenaed to divulge confidential sources to a grand jury, government must first show that the information is clearly relevant to a specific violation of the law; then that the information cannot be obtained by alternative means; and finally that there is a compelling and overriding interest in the information.
Department of Justice investigators working on the White House leak scandal seem to be taking the three-part Branzburg test into account. But the Branzburg ruling has been called a 4.5 to 4.5 decision, and First Amendment lawyer Floyd Abrams has asserted that, "The ruling certainly left the terrain in a manner where much more legal work needed to be done. It was one thing for the court to hold that in a criminal prosecution a grand jury at least presumptively has the power to cause a journalist to testify, but that didn't answer questions about what happened at criminal trials, nor on pretrial or trial in civil cases, nor even if it governed all grand jury demands."
Taylor notes that long-standing policy and a Justice Department regulation severely limit prosecutors’ efforts to demand information from news organizations, but the protection is not judicially enforceable and is based largely upon news organizations' ability to respond to pressure with pressure of their own in the form of hostile news articles and commentary if the Justice Department goes too far.
This free-lance reporter would point out that many journalists employed by corporate media news organizations are under tremendous pressures to cooperate with the Bush administration on all matters related to the war on terrorism, and such pressures are certain to influence the way the White House leak scandal is reported. Editors, reporters, columnists, commentators, and producers who refuse to self-censor can along lines that are essentially political, lines laid down by those who sign their pay checks, can quickly find themselves out on the street looking for work. From veteran journalist and former Rocky Mountain News international affairs editor Holger Jensen to former prime time MSNBC correspondent Ashleigh Banfield, Big Media professionals who have dared to cross the line in the name of truth and personal and professional integrity have been axed by news organization owners and managers unwilling to disappoint their political masters. Recently, award-winning documentary film maker and author Michael Moore jokingly threatened to reveal the name of a network television morning show host who told him during a commercial break that she had received a memo from management cautioning her about her tone of voice when she reported news about the war in Iraq. The pressure on many journalists to conform to questionable guidelines and policies ostensibly intended to support the war effort can only be viewed as a substantial restraint on freedom of speech.
News organizations’ reporting on White House officials’ refusal to sign the Justice Department’s waivers releasing reporters from confidentiality was remarkably subdued, probably because journalists realize that such waivers would increase the pressure on them to reveal the names of their sources, wrote Taylor in the Legal Times. Taylor speculates that a Justice Department “subpoena of Novak might not provoke as great an eruption of outrage as would occur if, say, Dan Rather were ordered to identify a source who had exposed high-level wrong-doing.” The reason, says Taylor, is not that his liberal colleagues wouldn’t so much mind seeing the acerbic conservative Novak marched off to jail in handcuffs, but “mainly that the leakers in this case are not whistleblowers pursued by powerful officials [but] powerful officials seeking to discredit, or spite, a whistleblower—and in the process, perhaps, recklessly endangering CIA sources overseas.”
On a recent call-in program aired on National Public Radio (NPR) stations, a man who identified himself as a former intelligence operative railed against reporters who have revealed the names of intelligence operatives, a practice he said had resulted in the untimely deaths of some of his former colleagues. His sentiments are understandable, but he went on to aver that media operatives like Novak who reveal the names of intelligence operatives are no different than spies like the notorious Aldrich Ames who sold information to the former Soviet Union and Russia, information that resulted in the deaths of highly valued intelligence operatives. The only difference, the caller claimed, was the signature on the paycheck. There are, of course, a great many substantial differences between the work of honest journalists, work that is vitally essential to the healthy function of our democratic processes and institutions, and the traitorous acts of the likes of veteran CIA agent Aldrich Ames and veteran FBI agent Robert Hanssen, who betrayed their country. But Novak, and other journalists who reported information about Plame leaked to them by senior Bush administration officials bent on revenge and intimidation, have further muddied already turbid waters in ways that are indeed troubling to journalists and that bode ill for the future of a profession already corrupted by various U.S. and foreign intelligence agencies—Israeli intelligence organizations are extraordinarily well represented—which have hundreds of well-placed and influential operatives working within Big Media in the USA.
Former Des Moines Register editor and Washington Post ombudsman Geneva Oversholser, writing in an op-ed published in the New York Times in early February, called upon Novak to break the cardinal rule that a journalist never reveals the name of a confidential source. Oversholser said Novak should “acknowledge his abuse of confidentiality.” Taylor seems to suggest that this kind of advice is related to the number of “reporters who see the Bush White House as a den of dissemblers [and] smell blood in the water,” and he reported, as have many others, that “Washington is seething with speculation that the suspects may include Rove, Libby, or other top officials.”
Washington Post staff writer Mike Allen reported from Crawford, Texas in early January that the whole affair could eventually prove to be nothing more than an annoying but passing embarrassment for the Bush administration if the Justice Department’s investigators conclude that no crime was committed because the high administration officials who exposed Plame’s identity as a CIA agent did not know that she was an undercover operative. Given the astonishing and still lengthening string of blunders and catastrophic failures the Bush administration has chalked up thus far in the area of intelligence, it does not require a great stretch of the imagination to suppose that high administration officials simply did not know and did not bother to find out whether Plame was an undercover operative before they ended her career, jeopardized important CIA weapons of mass destruction intelligence programs, and endangered God only knows how many lives in a remarkably ill-conceived, malicious, and ham-fisted effort to punish her husband and intimidate others by blabbing about her work to their trusted news media contacts. It seems possible that ignorance on the part of the leakers as to Plame’s status as a covert operative might provide the basis for a legal defense, but that is a legal technicality. From any reasonable ethical perspective, the question is beside the point. Whether the Bush administration leakers are guilty of gross negligence or malfeasance, they could certainly benefit from some time behind bars in a Club Fed minimum security prison, time to reflect on their actions without the annoying distraction of the responsibility of high office.
This reporter is hoping against hope that Justice Department investigators will find a way to get to the bottom of the scandal without eviscerating the First Amendment, even if that means tossing Novak in a cell next to those reserved for the cowards who went after Joe Wilson by putting his wife’s life at risk and ruining her career. But then I've always been an optimist. It’s seems far more likely that the Bush administration will continue to attempt to use the scandal for political benefit by manipulating the investigation, manipulating media coverage of the investigation, and manipulating media coverage of the larger war against terrorism in such a way as to further intimidate journalists and the public during the weeks and months remaining before the general election on November 3, journalists who, in the climate of fear and jingoistic fervor carefully cultivated by the administration and its media operatives, rightly fear they may lose the privilege of confidentiality, and perhaps a great deal more.
Is it any wonder that few Big Media journalists will dare to question why President Bush yesterday confidently announced the appointment of a politician, Rep. Porter Goss, a Florida Republican, to head the CIA? Goss—despite the 9/11 Commission’s clarion call for de-politicization of the intelligence community leadership’s role in advising the president? Goss—despite his abysmal record of inaction and failure, as chair of the House Intelligence Committee since 1997 and holder of the intelligence community’s purse stings, to insist on reform of the CIA or of the larger intelligence community? Not to mention his overtly partisan and active support of a) the president’s efforts to prevent the formation of the 9/11 Commission and b) White House efforts to withhold vital information from the 9/11 Commission once it was formed and the investigation was underway.
For all its shortcomings, Big Media does manage to get some things right: The coming general election will indeed be one the most important, if not the most important, in modern U.S. history.
Michael Gillespie is a freelance journalist based in Ames, Iowa, who writes about politics, media, and interfaith relations. Though he studied the history of political terrorism at Harvard, he does not market himself as a "terrorism expert." His work appears frequently in the Washington Report on Middle East Affairs.
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