Press Box Hack

In Slate, Jack Shafer, media columnist turned master of legislative intent, spins like a top for Karl "K-Traitor" Rove and/or whoever else disclosed the identity of covert operative Valerie Plame to Bob Nofacts. Shafer asks "Exactly what law did Robert Novak's leakers break?" Then he says, "the biggest problem will be proving leakers broke the law."

Well, proving a violation of the law is usually the biggest -- and only -- "problem" in a criminal prosecution, but in this case it's not as a big a problem as Shafer argues (hopes?).

Shafer offers future defense counsel and Admin. apologists some "talking points":

The problem with the Intelligence Identities Protection Act is that it doesn't appear to apply to the Novak case. To win a conviction, the law requires, among other things:

1) That the individual has or had "authorized access to classified information that identifies a covert agent." If Novak's administration sources had only unauthorized access to the information about covert officer Plame, learning about her identity and her mission, say, in a hallway conversation from a visiting CIA officer, the law wouldn't apply here. Perhaps they might go after the hypothetical CIA officer, but they'd run in to a slew of other legal problems sketched out below.

Shafer insinuates that prosecution would have to prove that the leakers learned of Plame's status in the course of an authorized conversation or briefing. But the law quoted only says the leaker has to have authorized access to the information. If they were authorized to have access to the information, it doesn't matter if they learned of the information during an "unauthorized" conversation. (I'd even argue that the leakers had authorized access to the information based upon learning it in a hallway conversation, unless they were expressly forbidden access to such information.)

2) That in addition to having had authorized access to the information about the covert agent, the individual must have "intentionally" disclosed it to an individual not authorized to receive classified information. This clause protects the government employee or member of Congress who might accidentally blurt out the name and identity of a covert agent....So, in addition to the other tests, a prosecutor would also have to prove the leaker's intent to blow the agent's cover. This poses a huge problem in the Novak case because the vague language of his column doesn't identify Plame as covert, but as a "CIA operative on weapons of mass destruction." It's plausible that Novak's source didn't know�as we now know�that Plame was "undercover."

Wishful thinking Jack! Nobody blurted out anything. And if the Plame wasn't undercover, why would the leakers need to tell Novak? There's no need to show any malicious intent, the act of making a statement itself establishes an intentional act.

3) That the individual knew he was disclosing information that identifies a "covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States." ... So far, we have no evidence that the United States is taking "affirmative measures" to protect Plame's identity.

Ah, but we do -- the CIA told Novak not to disclose the name. The statute doesn't require the CIA to assassainate Novak to keep the information concealed, any act by the CIA to conceal the fact will do. The mere fact that the CIA identified Plame as a covert agent is an affirmative measure to conceal the relationship. The mere fact that the CIA established a cover to begin with is an affirmative act. And the fact that others may have know Plume's status -- if you believe someone like Cliff May -- doesn't mean that the CIA was not taking measures to conceal the fact, it means the measures weren't entirely sucessful.

Shafer's hed is "Stop the Investigation!," and there's no doubt it reflects his desires. But when does law enforcement stop an investigation of crime because it doesn't have all the evidence necessary for a conviction at the beginning of the investigation?

Update (10/5): At Corrente, Tresy makes the point that Shafer didn't bother to read the entire statute he was supposedly interepreting. So Shafer should have called his article "Stop the Investigation, I've Got A Short Atten .... Is That Pudding?"