Valerie Plame
Raccoon Hunt
May Bag Media
WSJ.com
WONDER LAND
By DANIEL HENNINGER
December 9, 2005; Page A14
The Valerie Plame affair has become a neurosis for the Beltway press. Running back over the history of the Plame affair and Scooter Libby, Judy Miller, Matt Cooper, Tim Russert and now Bob Woodward got me thinking about a drug for obsessive-compulsive disorder called Anafranil. I think of Anafranil each time I see some arm of the Beltway press go to the well for the umpteenth time to uncover who violated the Intelligence Identities Protection Act (IIPA) of 1982 by "outing" Ms. Plame.
Why make a federal case out of it? Two reasons emerge. The first is if Patrick Fitzgerald indicted Karl Rove for violating this law, Mr. Rove likely would resign and the Bush presidency would be significantly damaged. The alternative explanation is that the press is merely pursuing a possible violation of federal law and any damage to the presidency is therefore the self-inflicted wound of Ms. Plame's outer. If it is the former, then the conservative paranoia about the press isn't paranoia. If the latter, then the Beltway press has lost its mind; they are making the practice of journalism more litigious for all the rest of us.
Patrick Fitzgerald must rue the day the phone rang to summon him to Washington. In his famously long press conference announcing the Libby indictment for obstruction, I thought Mr. Fitzgerald's baseball metaphor was a valiant attempt to separate the political wheat from the media chaff.
Mr. Fitzgerald was asked why this leak investigation hadn't produced a leak charge under the IIPA or the Espionage Act of 1917, which clearly was what the reporters thought their months of work should have produced.
"Let me try something," tutor Fitzgerald replied. "If you saw a baseball game and you saw a pitcher wind up and throw a fastball and hit a batter right smack in the head . . . you'd want to know why the pitcher did that. And you'd wonder whether or not the person just reared back and decided, 'I've got bad blood with this batter. He hit two home runs off me. I'm just going to hit him in the head as hard as I can.'"
He was of course describing the primeval code of baseball players; teams will wait all year to pay back another team's transgression. Everyone in the game understands and accepts this. And so in politics. Joe Wilson beaned the Bush boys by going public on the New York Times op-ed page. So the boys smacked Joe Wilson's shortstop, Ms. Plame. The story of the politics of this high-stakes infighting was truly worth chasing. Instead, the Beltway media decided the more important story, deserving endless hours of reporting, was who violated this now-obscure law. This is not enterprise reporting; it is legal advocacy.
The IIPA was passed by Congress after CIA turncoat Philip Agee published the names of hundreds of CIA agents working undercover outside the U.S. at the height of the Cold War. The distance between the mammoth Agee case and the Plame affair is from here to the moon.
The Espionage Act of 1917, the other justification for the Plame media hunt, is taken seriously by virtually no one. There has been but one prosecution of the law's relevant clause on giving classified information to persons unauthorized to receive it -- of Samuel L. Morison in 1985 for leaking three classified photographs to, horrors, Jane's Defense Weekly. The Morison case was widely regarded, most publicly by the late Sen. Pat Moynihan, as a travesty.
How is it in the press's interest to be an enabler in the indictment of a leaker? Bringing legal ruin to a public official under either law would suppress the future flow of information to the public. Leaks would come in unmarked brown envelopes.
The Plame reporting breathed back life into the creature known as a Special Prosecutor. But prosecutor Fitzgerald made clear he has zero interest in the politics of the Plame case, which of course is the only thing the public is interested in. The public probably thinks disclosing politics, rather than manufacturing litigation, is why we have a First Amendment.
It is bitterly ironic that this most apolitical of prosecutors has come to Washington and is sucking into his legalistic maw one journalist after another, while the press privilege to protect sources is put at risk. Yet the legal raccoon hunt continues. The impression remains that if the Beltway press could tree Karl Rove or Dick Cheney for an IIPA violation, the sacrifice of their colleagues and any potential damage done to newsgathering would be regarded as well worth it. The relish with which the pack descended to chew on Bob Woodward for not joining them is proof enough of that.
If the Libby case goes to trial, Mr. Libby himself will be a sideshow compared to what his lawyers are likely to display to the public about the practice of journalism. It has been reported that his lawyers plan to make wide demands for reporters' notes. One can imagine them issuing subpoenas for the pen-and-pencil reporting notebooks of Matt Cooper, Judith Miller and others, having a hand-writing expert transcribe the notes, and then asking the reporters to read -- or try to read -- their notes on the stand against a transcript onscreen. That won't be pretty. Unless these reporters have the handwriting of nuns and recall of Garry Kasparov, they will look like fumbling fools. Any of us would.
The press requires the protections of the First Amendment because it could never survive legal challenge without it. But the reporting on the Plame case more resembles the Singapore press model, with its penchant for placing absurdist legal fastidiousness above knowing anything useful. In the Plame affair ideological animosity overwhelmed clear-sighted journalistic aggression.
Reporting the news is an informal, imperfect exercise. Journalism was never meant to have the unforgiving, precise exactitude of the law's needs imposed upon it. But because of Plame, it's about to be. Last month an appeals court in a civil suit ruled for nuclear scientist Wen Ho Lee that reporters for the Washington Post, AP, New York Times, L.A. Times and CNN had to testify about confidential government sources who leaked information about Mr. Lee.
Someone in authority should have called off the Plame dogs. But it's too late for that. Now everyone's blood is in the water.
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