02/16/2005: More Plame-Out A Happening
In this report by Carol D. Leoning at the Washington post in an article called Reporters Must Testify in Plame Case
"The three-judge panel of the U.S. Court of Appeals in Washington rejected the contention that the First Amendment protects the information being concealed by the journalists, saying that a 1972 U.S. Supreme Court decision said just the opposite. The judges also found there is no common law protection for journalists' confidential sources when a criminal investigation seeks to determine if a law has been broken and information about those sources is critical to that inquiry. "We further conclude that if any such common law privilege exists, it is not absolute, and in this case has been overcome by the filings of the Special Counsel," the panel wrote.
Tatel wrote that the purpose of the government leaks, based on a story that Cooper wrote in the summer of 2003, appeared to be to smear a person who alleged the Bush administration exaggerated the strength of its evidence justifying going to war with Iraq. "While requiring Cooper to testify may discourage future leaks, discouraging leaks of this kind is precisely what the public interest requires, " wrote Tatel."
I've argued much the same myself...that The First Amendment, while Most Awesome and Cherished and Deserving of Support...does not give anyone the absolute right to utter purposely harmful and life threatening stuff. As every Newbie "first year law student" learns there is no "right " to utter "FIRE" in a crowded theatre resulting in mayhem, injuries or deaths...just cause 'o' The First Amendment."
In my mind the Plame issue is a very narrow class of information and was specifically legislated to be a protected class..with criminal penalties. That said, it still takes judicial "adjudication" to decide whether this law applies to the facts and reporters involved. Why and how the prosecutors are after Judith Miller and Matt Cooper and not indicting Bob Novak is still a mystery to me (other than the political answer that Novak is a "friend" to the administration, and Miller and Cooper write for those "liberal rags" the NY Times and Time...it's hard to escape a politically driven motive for the way this playing out...yet the principle in law seems like a good idea.)
I further argues this in a letter to Don Wycliff (Public Editor Chicago Tribune.) To read further, click on the "more" button.
There can be no pretense that this issue of publicly revealing the name of covert CIA operatives falls under some broad category of "public right to know based on the First Amendment protections." It is not.
There are all kinds of government "classified" "secret" "non-public" information that there simply is no right to disseminate publicly for any reason…and this information falls into that category. It's not just about public "duty" as a citizen, it is about accountability for a leak that runs up to the highest offices in our government. Ambassador Wilson was critical of the misinformation Bush touted on WMD's in the speech for going to war in Iraq, and coincidentally, Lewis Libby, Chief of Staff to V.P. Dick Cheney, just happens to reveal Wilson's wife as a covert CIA agent working on the issue of WMD's.
I think other newspaper editors (you clearly have already considered this issue) need to rethink the position of blithely waving this issue around as "the ability of the press to continue collecting and reporting information" and look at who "abused their power" and what this "abuse of power" really involved in this particular situation. This investigation into this leak has been going on for nearly a year. President Bush promised an investigation, yet I'm expected to believe that G.W. (who presumably talks with V.P. Dick Cheney and his Chief of Staff, Lewis Libby quite frequently) never was told "Gee, you're looking to who passed on info about Ms. Plume, it was Lewis Libby." It's taken a full investigation, a Federal U.S. District Judge, contempt of court citations and all for a question the President and his V.P. could have answered a year ago. A year for this information to be found out that leads right back to Cheney's Chief of Staff?
Lastly, as to whether this leak put her life in danger, I'll take her husband's word that she couldn't continue to perform her undercover tasks with any measure of safety since this happened. Nor would this information allow her to travel freely outside the U.S. with her husband (as she used to do) with no hesitancy about people who might just want to target her for this CIA connection. The real issue is that, what ever the risk, her life is in jeopardy because she was not protected from someone in her own government and the very highest offices in government. That's reason enough to demand accountability and responsibility for the people involved in this heinous crime.
Michael Kinsley (LA Times) wrote a piece called "The Cult of the Source" back on October 10, 2004. Mr. Kinsley had this to say:
The reporters being subpoenaed over who leaked an undercover CIA operative's name and those facing actual jail time for refusing to reveal their sources are friends of mine. Or at least they were until this column. I do not want them to go to jail.
"The problem is this: Should it be illegal for a government official to reveal the identity of an undercover CIA agent? Most reasonable people, including most reporters, would probably say yes. Lives can be at stake. But for all practical purposes, such a law (which in fact we have) is unenforceable if a government official chooses to reveal the agent's identity to a journalist, and the journalist ignores a subpoena to testify about it.
Roberto Gonzales Note:
Michael Froomkin (Law Professor & blogger) had this item on his web-blog about Gonzales' hand in obstruction in the Plame investigation. Froomkin wrote:
Do not forget that Gonzales - nominated to be the nation's top cop - is the guy who when the Plame investigation was bearing down on the White House ensured that the guilty parties had all the time they could want to shred everything incriminating.""
Despite the hoopla over his being the first Hispanic nominee for this "exalted" position...and all the "ethnic pride" on the part of Hispanics nationally...are the serious LEGAL and MORAL issues about this Presidential choice.
Karen on 02.16.05 @ 03:57 AM CST