Saturday, October 04, 2003

The Best Little Whorehouse for Texans 

Over at Slate, where John Kerry's hairdo is a constant matter of grave concern, Jack Shafer assures us that the Plame scandal is likely much ado about nothing.

1) Shafer commits every armchair lawyer's biggest mistake, which is not reading the entire statute. Instead he bases his entire argument on paragraph (a) of the Intelligence Identities Protection Act, and the assumption that the leakers were not authorized to receive classified information, to conclude that the leak to Novak did not reach the threshold for prosecution. Unfortunately for Shafer, paragraph (c) reads,

Whoever, in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, discloses any information that identifies an individual as a covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such individual and that the United States is taking affirmative measures to conceal such individual’s classified intelligence relationship to the United States, shall be fined under title 18, United States Code, or imprisoned not more than three years, or both. (emphasis added)

No requirement that the leaker be "authorized" here, Jack, and I daresay that shopping the same leak to 6 journalists before finding the not-too-bright Novak qualifies as a "pattern". As for the mens rea element of the offence, well, that's what trials are for, aren't they? Until you have a defendant you can't very well make that determination. But note that even here, the statute does not care much about actual motive or knowledge of the leaker, but whether the the leaker has "reason to believe" that the leak would harm intelligence activities.

I for one would be happy to listen to Bush Administration officials testify as to why there was no reason to believe that blowing the identity of a covert operative working on WMD's would have any effect on national security. It would certainly be a bracing change of pace from their usual imputations of treason to any critic of their policy, not to mention its carefully burnished image as Selfless Protector of the Nation.

2) Shafer ignores the background to passage of the Act. Here's what one person had to say at the Act's signing:

The Congress has carefully drafted this bill so that it focuses only on those who would transgress the bounds of decency; not those who would exercise their legitimate right of dissent. This carefully drawn act recognizes that the revelation of the names of secret agents adds nothing to legitimate public debate over intelligence policy. It is also a signal to the world that while we in this democratic nation remain tolerant and flexible, we also retain our good sense and our resolve to protect our own security and that of the brave men and women who serve us in difficult and dangerous intelligence assignments. (emphasis added)

The law is broadly intended to bar the revelations of agents' names for the purposes of influencing public debate over intelligence policy; it's not a narrowly tailored "Stop Phillip Agee Forever Act." Gee, it's almost like Reagan was channeling the Plame scandal. Imagine that.

3) Shafer is, as usual, missing the forest for the trees. Hell, he's even ignoring the trees. This is, it bears repeating, about sliming a career diplomat, ruining his spouse's career, and harming national security as political payback for publicly crossing the Bush Administration about lies told to lead us into a disastrous, illegal war. If that is legal, it only compounds the scandal.

Shafer should try working standing up for a change.

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