Thursday, October 13, 2005

Defending the Plame Leakers

In today's Washington Post, Richard Cohen writes an astonishingly wrong-headed column urging that Plame leak prosecutor Patrick Fitzgerald close up shop, "return to Chicago and prosecute some real criminals" rather than hand down any indictments.

Cohen deploys several arguments in his attempt to prove that the crimes in the Plame case were trivial and that prosecuting them would harm rather than help the public interest. Let's consider them one by one.

First, Cohen remarks that using leaks to impeach political opponents is "Not nice, but it was what Washington does day in and day out." Of course it's true that leaks are frequently used to settle political scores, but that's not what's Fitzgerald is investigating. He's investigating the public exposure of an undercover CIA agent, an act which Congress deemed heinous enough to criminalize. Are secret government intelligence operatives exposed in Washington "day in and day out"? Obviously not, or by now there would scarcely be anyone left undercover.

Of course, Cohen knows this, so he quickly moves on to his second argument:

This [i.e., leaking] is rarely considered a crime. In the Plame case, it might technically be one, but it was not the intent of anyone to out a CIA agent and have her assassinated (which happened once) but to assassinate the character of her husband. This is an entirely different thing. She got hit by a ricochet.

Here is a more substantive argument. Unfortunately for Cohen, it makes no sense. Apparently the columnist has unilaterally decided that "intent" is a crucial part of the definition of the crime in this case--that outing a secret CIA agent is criminal only if your motive is to have the agent assassinated. In Cohen's world, it's perfectly okay to out a secret agent if you have purely political motives or, perhaps, simply want to eliminate the agent's cover and thereby ruin her career.

Unsurprisingly, the law doesn't see it this way, since its purpose is to protect the value of American undercover assets--not to punish naughty motives. It doesn't matter why you expose a spy. Doing so is a crime. Period.

Even Cohen's own rhetoric exposes the flimsiness of this argument. He says that Valerie Plame "got hit by a ricochet." In factual terms, this is wrong: The information leaked was specifically about Plame, with the hope that her husband would be harmed as a form of "collateral damage." But even leaving that aside, since when can you defend criminal activity by claiming that the victim was an innocent bystander "hit by a ricochet"? The next time some five-year-old is killed during a drug shoot-out, should the district attorney decline to prosecute on the grounds that the Cohen Doctrine exonerates criminals with bad aim?

Perhaps sensing that his arguments so far have been pathetically weak, Cohen reaches for the big finish:

The greater issue is control of information. If anything good comes out of the Iraq war, it has to be a realization that bad things can happen to good people when the administration -- any administration -- is in sole control of knowledge and those who know the truth are afraid to speak up. This -- this creepy silence -- will be the consequence of dusting off rarely used statutes to still the tongues of leakers and intimidate the press in its pursuit of truth, fame and choice restaurant tables.

Taken at face value, all of this is correct. But lay it next to what actually happened here and you see that it bears no relationship to the facts. The Plame leak is not about a brave administration whistleblower daring to break the government's monopoly over information the public needs to know. It's about an administration operative using secret information as a stiletto in an attempt to silence a critic.

Cohen's hand-wringing about "intimidating the press" seems especially egregious. I haven't heard any speculation that Fitzgerald is considering indicting journalists. I don't like the precedent set by the Judith Miller jailing, and I would favor passage of a shield law protecting journalists, which would basically solve the problem. There's no way we need to also protect the Karl Roves and Scooter Libbys of the world in the process.

The Bush administration has taken the fetish for secrecy to new heights in an effort to consolidate its control over information and therefore its power. It's an appalling trend and one that Richard Cohen certainly ought to be writing about. But if I wanted to launch a crusade for greater government openness, I would focus on things like the Abu Ghraib photos, the CIA's report on pre-9/11 intelligence, and the deliberations of Cheney's energy committee. Wouldn't this information do more to enlighten the public about crucial policy matters than knowing what Valerie Plame did every day in Langley?

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