From the NY Times: Plame Leak May Not Have Violated Law
Just one minute
There is nothing like the prospect of an imminent hanging to concentrate the mind; apparently, the prospect of having one of their reporters go to jail for eighteen months has concentrated the minds of the NY Times editors on the legal subtleties of the Valerie Plame leak investigation.
In one of the most comically self-serving, late-to-the-party flip-flops we have enjoyed today, the Times editors tell us this:
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nytimes.com.
"Meanwhile, an even more basic issue has been raised in recent articles in The Washington Post and elsewhere: the real possibility that the disclosure of Ms. Plame's identity, while an abuse of power, may not have violated any law. Before any reporters are jailed, searching court review is needed to determine whether the facts indeed support a criminal prosecution under existing provisions of the law protecting the identities of covert operatives. Some judge may have looked at the issue, but we have no way of knowing, given the bizarre level of secrecy that still prevents the reporters being threatened with jail from seeing the nine-page blanked-out portion of last week's decision evaluating the evidence."
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My goodness, Jack Shafer gets results! "Recent articles" in the Washington Post and elsewhere? The WaPo presented this argument on Jan 12; the Wall Street Journal ran substantially the same piece on Dec 14, 2004. Has the Times finally cracked the case of the purloined op-ed, with the answer hidden in plain sight?
As to the theory itself, I am firmly on both sides of this. Will the argument keep Ms. Miller out of jail? My guess is that a court will not be inclined to pre-judge the case the Special Counsel may be building - conceivably, the evidence held by Ms. Miller would be the key to clearing the hurdles set by the 1982 Intelligence Identities Protection Act, and there may be other statutes that can be applied (At least, Mark Kleiman and I thought so in December). Consequently, a review court will probably uphold the order to Ms. Miller to provide her evidence.
That said, the "no underlying crime" argument may be the best Ms. Miller can come up with - as Jack Shafer said, she ought to hire some real attorneys and find out.
Finally, on the notion that the 1982 Intelligence Identities Protection Act will not be the basis for a successful prosecution, even if the courts continue to order Ms. Miller to testify - we say to the Times, welcome to the club; Jack Shafer was a member in Sept 2003 as well; James Taranto joined early, and promoted the membership often.
We will add this to our list of Frequently Unanswered Questions: Can the Times editors say "bogus"? |
