Tuesday, October 18, 2005

Odd I didn't notice this until the FT pointed it out to me.

In a more ominous sign, Ms Miller said Mr Fitzgerald's questions went beyond the leaking of the CIA name to probe the administration's selective leaking of intelligence information ahead of the Iraq war. During the hearing, she said he repeatedly asked how Mr Libby handled classified information and showed her some documents.

I only now realise that, if Fitzgerald intends to ask for indictments under the Espionage Act and not the Intelligence Identities Protection Act, leaks of classified information other than the identity of Valerie Plame Wilson's true employer are, according to the letter of the law, fair game.

I would be distressed if Fitzgerald prosecuted people for leaking classified information other than Plame's employer. The espionage act is dangerously vague and, as written, is already a US official secrets act. I think the classification system is abused (enormously by this administration) to close off debate. I think it is generally very damaging to punish leaks to journalists as espionage, since I think that such leaks do more good than harm on balance.

Now I was very pleased to learn from Mark Kleiman that the Plame Burners will not escape conviction by appealing to one of the clauses meant to restrict the IIPA to Phillip Agee and anyone who acted just like Phillip Agee. For example, it would be very hard to prove that they knew that Plame was covert. However the espionage act makes it a crime to leak classified information that the leaker doesn't know is classified. In this respect the IIPA is silly and the espionage act is reasonable. It is impossible to prove someone knew something at any given time. This is the H.R observation (stated by H.R Haldeman not H.R. Clinton). No one can prove that you remembered something. Thus even proof that the leakers were told (by top secret on a file and (s) next to a paragraph) that Plame's occupation was secret, they might not have remembered and thus not have known it when they were leaking. There is no doubt that K.R. (who is a disciple of H.R.) is going to rely heavily on the amnesia defence.

This enthusiasm is based on the sense that blowing Plame's cover was a very bad act. One can argue about what information should be classified but almost everyone agrees that intelligence sources and methods must be kept secret. The prosecution would not be hampered if the espionage act were modified so that juries would be instructed to find a defendant not guilty if they conclude that the classified information shouldn't have been classified. Similarly, the prosecution would not be hampered if the jury were required to find that the leak had bad consequences.

I don't like the law as it is written, but I am delighted by its application in a case where the law of my vague confused dreams could be applied.

In the case of burning Plame, there is no shred of a halfway legitimate reason to make the information public in July 2003 (recall my post on Mickey Kaus's failure to grasp the concept of time). While the question of Iraq's nuclear ambitions was still open, no serious purpose would have been served by considering the possibility that Plame proposed Wilson, since his qualifications are obvious and his conclusions were solid and shared by 3 other investigators. However, after it was clear that he was right, to blow Plame's cover in a feeble attempt to argue that the Bush administration had reason to ignore him is totally idiotic. I'm sure they did it to retaliate and intimidate.

If Fitzgerald prosecutes the leaks of other classified information, he may well create a precedent for damaging application of the law.

I have been mystified by the idea on the right that Fitzgerald is moving beyond the issue he was originally assigned to investigate. Prosecuting the act he was supposed to discover under the espionage act instead of the IIPA would not be such moving beyond. Prosecuting other leaks would. I remain mystified how people who supported Starr can sleep at night after arguing that Fitzgerald is casting his net too wide.

Finally such a prosecution would come close criminalising politics and punishing people for business as usual.

I am very sad to say that a lot of recent pronouncements which seemed totally idiotic to me can be explained if Fitzgerald's critics have reason to believe that he will prosecute any leak of classified information he discovers. I am not going to name the names of the possible non idiots, because I don't want to go overboard.

By the way, I think the espionage act explains the very careful choice of words by the Bush administration which was repeatedly noted by Josh Marshall. The line was that x y or z had not "revealed classified information". Marshall's suspicion and mine is that they always carefully put it that way, because apparently similar claims were going to be demonstrated false in the end.

Now I think they were making sure the denial fit the crime. That is that they denied violation of the espionage act and not just violation of the IIPA. In fact, the choice of words could have been a hint to grand jury witnesses to mention no leaks of classified information at all, whether or not they were related to Plame.

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