The press
has been full of righteous indignation that high officials in
the Bush administration would endanger the identity of a covert
agent. And it has been argued that administration officials did
this to punish a fearless truth-teller -- Plame's husband, Joseph
Wilson -- a former ambassador who charged that the Bush administration
purposefully ignored intelligence and lied about Iraqi attempts
to obtain uranium to develop weapons of mass destruction.
The problem
is that the narrative line being offered up by the press is almost
entirely wrong. And it is almost certainly true that neither of
the statutes that might cover the situation -- the Intelligence
Identities Protection Act of 1982 and the Espionage Act of 1917
-- was violated, at least by anyone in the administration.
Any indictment
of Rove or Libby brought by special prosecutor Patrick Fitzgerald's
grand jury, which is scheduled to go out of existence on Oct.
28, would in my opinion be a grave injustice. It would hurt the
administration by depriving it of the services of one or more
very talented and dedicated officials. But it would also set a
bad precedent by creating a precedent that would obstruct the
flow of information from government to the press and the people.
Consider
the Intelligence Identities Protection Act. To violate it, you
must disclose the name of a covert agent who has served abroad
within the last five years, while knowing that that person was
a covert agent. It does not appear that Plame was a covert agent
who had served abroad within five years of the disclosure of her
name to reporters. She was a desk officer at CIA headquarters
at Langley at that time. This law was narrowly drafted and intended
only to apply to people who purposefully endangered covert agents
abroad. That is clearly not the case here.
The Espionage
Act is less narrowly drafted. But it does set out specific things
that cannot be disclosed -- "information concerning any vessel,
aircraft, work of defense, navy yard," etc. The list does
not include identity of CIA agents -- there weren't any in 1917
-- which is why the drafters of the 1982 IIPA felt the need for
a new law to protect a very limited class of covert operatives.
So it seems
clear to me that an indictment under either of these statutes
would be a gross injustice. It is a general principle of law that
when the government wants to criminalize acts other than traditional
common law crimes like murder or theft, it must set out with great
specificity the conduct that is forbidden. To visit the rigors
of criminal indictment, trial and punishment on someone who has
done nothing that is specifically forbidden is unjust -- the very
definition of injustice.
That leaves
the question of whether Rove, Libby or someone else will be indicted
for perjury, obstruction of justice or making false statements
in the course of the investigation. But why should there be indictments
if there was no crime?
True, Rove
and Libby did seek to discredit Joseph Wilson -- as they should
well have done. As the Senate Intelligence Committee concluded
in a bipartisan report in July 2004, just about everything Wilson
said publicly about his trip to Niger was untrue. He said that
he had discredited reports that Iraq sought to buy uranium in
Niger. But the CIA people to whom he reported concluded that,
if anything, he substantiated such reports. He said that he pointed
out that certain other intelligence reports were forged. But the
forgeries did not appear until eight months after his trip. He
said his wife had nothing to do with his trip to Niger. But it
was she who recommended him for the trip. And on and on.
In the absence
of a violation of the underlying espionage acts, any indictment
here arising from the course of the investigation would be, in
my view, unjust and an abuse of prosecutorial discretion. It would
also be, as the liberal commentator Jacob Weisberg has pointed
out, a long step toward something like the British Official Secrets
Act -- a precedent that would staunch the flow of information
from the government to the press and the people.
The press
has been shrieking for Rove's and Libby's scalp. If they're indicted,
the administration will be hurt in the short run, but in the long
run it will be the press and the people who will suffer.
