Monday, June 27, 2005

A license to chill

Why are Judith Miller and Matt Cooper being prosecuted for not identifying the sources they interviewed for stories they never wrote about a crime that evidently wasn’t committed and for which no one, except possibly the reporters, ever will do time?

In a Catch-22 case that sends a shiver down every journalist's spine, the reporters for the New York Times and Time Magazine face 18 months in the slammer for refusing to name their sources, even though this right is protected by the laws of every state except Wyoming. Unfortunately, this is a federal case, so the shield laws don’t apply.

The reporters moved one step closer to jail when the U.S. Supreme Court declined Monday to review a contempt-of-court sentence meted out by the federal district judge overseeing the investigation into who identified a former covert CIA agent whose husband wrote an article critical of the Bush administration. In refusing to act, the top court disregarded entreaties to spare the scribes from the attorney generals of 34 states and the District of Columbia.

Ironically, the investigation into the leak was concluded “for all practical purposes” in October, 2004, and it appears no charges will be preferred, according to court filings earlier this year by Special Prosecutor Patrick Fitzgerald. The only unfinished business, evidently, is the sentencing of the two reporters, who have been free on appeal since October.

U.S. District Court Judge Thomas Hogan in October declared he would jail the reporters for up to 18 months, unless they either reveal their sources or the grand jury concludes its business. If the case has been concluded “for all practical purposes,” why is the witch hunt continuing?

The case commenced when unnamed administration official(s) evidently revealed the identity of Valerie Plame, a former undercover CIA agent, whose husband wrote an article in 2003 discrediting the phony pre-Iraq invasion tale that Saddam Hussein was trying to buy enriched uranium from Niger to make nuclear weapons. “Some of the intelligence related to Iraq's nuclear weapons program was twisted to exaggerate the Iraqi threat,” said Ms. Plame’s husband, former Ambassador Joseph P. Wilson IV. By all accounts, the ambassador was right.

Although Ms. Plame earlier in her career had been an undercover agent, she was working openly in 2003 as an analyst at the CIA headquarters in Langley, VA. While it is against the law to reveal the name of a covert agent, commentators argue that Ms. Plame was not a covert agent at the time her identity was revealed.

“If it were known on the Washington cocktail circuit, as has been alleged, that Wilson's wife [was] with the agency, a possessor of that gossip would have no reason to believe that information is classified,” said two lawyers who drafted the Intelligence Identities Protection Act and who expressed their views in an op-ed in the Washington Post. Therefore, they argue, the leak itself was not a crime under the act, which is the dispositive law in this matter.

The original story “exposing” Ms. Plame as a spy was written by columnist Robert Novak, who reportedly has testified to the grand jury investigating the leak but evidently does not face prosecution.

The Identities Protection Act “had no intention of prosecuting a reporter who wanted to expose wrongdoing and, in the process, once or twice published the name of a covert agent,” said Victoria Toensing and Bruce W. Sanford, the authors of the Post op-ed. “Novak is safe from indictment.” It wouldn’t have been a crime to mention Ms. Plame even if she had been a covert agency on active duty, according to the attorneys.

If there is no harm when an agent is exposed and no foul if a reporter writes about it, why are Judith Miller and Matt Cooper packing their toothbrushes for a stint in the federal pen?


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