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In this case, there exists ample evidence in the public record to cast serious doubt as to whether a crime has even been committed under the Intelligence Identities Protection Act (the “Act”) in the investigation underlying the attempts to secure testimony from Miller and Cooper. If in fact no crime under the Act has been committed, then any need to compel Miller and Cooper to reveal their confidential sources should evaporate. . . .
The explanation by a White House official to Robert Novak that Joseph Wilson had been sent by the CIA to Niger because his wife, Valerie Plame, worked for the CIA represents a single fact in what has been an enduring and crucial news story for the past two years–i.e., did the Bush Administration invade Iraq with a reasonable, if mistaken, belief that the Saddam Hussein regime possessed weapons of mass destruction? . . .
The information given to Novak must be seen in light of this broader canvas, which also calls into question the conduct of the CIA and the intelligence community, and whether the government was taking the necessary steps to keep the name of a covert employee secret. It is in this context that a statute criminalizing the purposeful disclosure of the identity of a “covert agent”–which has been used only once in its 22-year history–is being invoked. But the circumstances necessary to prove that crime seem not to be present here. . . .
At the threshold, an agent whose identity has been revealed must truly be “covert” for there to be a violation of the Act. To the average observer, much less to the professional intelligence operative, Plame was not given the “deep cover” required of a covert agent. . . . She worked at a desk job at CIA headquarters, where she could be seen traveling to and from, and active at, Langley. She had been residing in Washington–not stationed abroad–for a number of years. As discussed below, the CIA failed to take even its usual steps to prevent publication of her name.
Moreover, the government may have “publicly acknowledged or revealed” her intelligence relationship prior to publication of Novak’s July 14, 2003 column. . . . An article in The Washington Times indicated that Plame’s identity was compromised twice prior to Novak’s publication. If this information is accurate . . . there is an absolute defense to prosecution. . . .
There are sufficient facts on the public record that cast considerable doubt as to whether the CIA took the necessary “affirmative measures” to conceal Plame’s identity. Indeed, these facts establish such sloppy tradecraft that, at minimum, the CIA was indifferent to the compromise of her identity.
The following facts are public:
* The CIA sent a non-CIA employee, Joseph C. Wilson IV, on a mission to Niger to determine whether Saddam Hussein had tried to purchase “uranium yellow cake,” an ingredient for making a non-conventional weapon.
* Wilson had not served in Niger for over two decades, and, unlike his supposedly undercover wife, was not an expert in nuclear weapons.
* Wilson was not required to sign a confidentiality agreement about his mission.
* Wilson was not prevented by the CIA from writing his Op-Ed for The New York Times, an article that not only criticized the Administration, but also detailed his mission and findings.
* When columnist Novak contacted the CIA to verify that Plame worked for the agency, he says that the Agency not only verified her employment but also failed to give him a serious request not to publish her name.
* The CIA’s usual procedure when it is concerned that publishing a fact would endanger a covert agent is to have a high ranking official, usually the Director, contact the journalist and ask that information not be published.
* The CIA did not prohibit Plame from making political contributions under the name “Wilson, Valerie E.,” facts that are publicly available at the FEC.
Novak’s column can be viewed as critical of CIA ineptitude: the Agency’s response to a request by the State Department and the Vice President’s office to verify whether a specific foreign intelligence report was accurate was to have “low level” bureaucrats make the decision to send a non-CIA employee (neither an expert on Niger nor on weapons of mass destruction) on this crucial mission at his wife’s suggestion. Did no one at Langley think that Plame’s identity might be compromised if her spouse writes a nationally distributed Op-Ed piece discussing a foreign mission about a volatile political issue that focused on her subject matter expertise?
The public record provides ample evidence that the CIA was at least cavalier about, if not complicit in, the publishing of Plame’s name. Moreover, given Novak’s suggestion of CIA incompetence plus the resulting public uproar over Plame’s identity being revealed, the CIA had every incentive to dissemble by claiming it was “shocked, shocked” that leaking was going on, and thus made a routine request to the Justice Department to investigate. . . .
While there is no suggestion that the Special Counsel is proceeding in bad faith, there should be abundant concern that the CIA may have initiated this investigation out of embarrassment over revelations of its own shortcomings.
