The Plame Leak vs. The Torture/Spying Leaks
One of the most common talking points among Bush apologists lately has been the charge of that those who were in favor of prosecuting the Plame leakers are somehow being hypocritical by not demanding the prosecution of the leakers who revealed that the CIA had established secret torture prisons in Europe or that the President had secretly authorized the NSA to spy on American citizens in violation FISA. Like all good talking points, there's at least a superficial logic to this one, enough to make it effective as a rhetorical weapon. The New York Times' editorial board set out today to debunk this talking point. Unfortunately, they didn't do a very good job. The piece gives the standard speil about the value to society of whistleblowers, and then offers the following analysis:
The distinctions the Times draws here are not unimportant, but they are somewhat beside the point. There are a number of reasons why you can't look to the motivation of the source to determine whether a leak is a "good leak" or a "bad leak." The first is a rather obvious point: the motivation of the leaker is not likely to be known to anyone but the leaker himself (and maybe the reporter). But prosecutors deciding whether or not to investige the leak and the public in general can only guess as to the leaker's motivations. Second, and more importantly, the public value of the leak may bear little, if any, relationship to the motive of the leaker. Take, for example, Mark Felt, the infamous Deep Throat. The information he provided to Woodward and Bernstein was unquestionably newsworthy and of immense value to the public. But there's reason to believe that Felt was driven more by petty political motives than altruistic or noble ones. For all we know, the same is true of at least some of the leakers behind the secret prisons and NSA spying stories. If that's the case, however, it doesn't make the information itself any less newsworthy.
What distinguishes the Plame leak is not the motivations of the leakers, but the fact that Plame's identity was of almost no news value, at least relative to the potential damage such a leak could cause. Reporters and news organizations who receive leaks of classified information have to weigh the public's right to know against the potential harm to national security that could result from publication of the information. When the information at issue suggests that the government may be operating in violation of its own laws, this decision is a no-brainer. The secret prisons and NSA spying stories are the paradigmatic examples of situations that weigh heavily in favor of publication. In sharp contrast, Robert Novak's decision to publish Plame's identity was a highly dubious one. It's hard to see how the public's need to know that rather trivial detail could have outweighed the potential harm caused by outing a covert operative. In Novak's defense, it's not 100% clear that he understood Plame was a NOC. Then again, the CIA spokesman Novak talked to did warn him (though perhaps not as strongly as he should have) not to publish her name, and, evidently, none of the other reporters who were leaked the information thought it important enough to print.
But back to the larger issue. The fact that a newspaper is justified in publishing a story (as the Times and Post were with their recent stories) does not mean that the sources behind the stories should be automatically immune from prosecution. Absent a law providing specific protection for classified leaks from "whistleblowers," the public value of the leak is not relevant to whether a crime occurred. What we are left with is the exercise of prosecutorial discretion. When prosecuting individuals under the broad provisions of the Espionage Act, prosecutors need to be cognizant of the potential chilling effect such prosecutions may have. While it's important that national security leaks have consequences, it is also important that corruption and illegality be exposed. As Patrick Fitzgerald made clear in his press conference following the Libby indictment, prosecutions under the Espionage Act need to be handled judiciously, so as not to create a de facto Official Secrets Act. Like the editors at the Times and Post, the Justice Department, in exercising its prosecutorial discretion, needs to weigh the value of the information leaked against the harm caused by the leak. Unlike the editors of the Times and Post, however, the Justice Department may know a lot more about the potential damage, if any, caused to national security by the leak. I just hope the prosecutors involved with the current investigations take their obligations and discretion as seriously as Fitzgerald has.
Regardless of whether these leakers should be prosecuted, however, one thing is clear: in the grand scheme of things, the importance of the leak itself pales in comparison to the legal and constitutional issues raised by it. The suggestion that we should all be up in arms over the leak itself rather than the potentially illegal programs exposed by it is ridiculous. In the Plame affair, the leak itself was the story. There was nothing else to it. Here the leak is, at best, a background detail in an otherwise explosive and unquestionably important story. The attempt by the administration and its surrogates to focus the spotlight on the prosecution of leakers is a transparent attempt to change the subject and avoid the real issues. It's nothing more than cynical political myopia.
UPDATE: I just finished reading an excellent post by Ted Barlow at Crooked Timber on this same subject. If you've bothered reading this far, you'll surely enjoy his post as well.
The longest-running of the leak cases involves
Valerie Wilson, a covert C.I.A. operative
whose identity was leaked to the columnist
Robert Novak. The question there was
whether the White House was using this
information in an attempt to silence
Mrs. Wilson's husband, a critic of the Iraq
invasion, and in doing so violated a federal
law against unmasking a covert operative.
There is a world of difference between that
case and a current one in which the
administration is trying to find the sources of
a New York Times report that President Bush
secretly authorized spying on American
citizens without warrants. The spying report
was a classic attempt to give the public
information it deserves to have. The Valerie
Wilson case began with a cynical effort by the
administration to deflect public attention
from hyped prewar intelligence on Iraq. The
leak inquiry in that case ended up targeting
the press, and led to the jailing of a Times
reporter.
The distinctions the Times draws here are not unimportant, but they are somewhat beside the point. There are a number of reasons why you can't look to the motivation of the source to determine whether a leak is a "good leak" or a "bad leak." The first is a rather obvious point: the motivation of the leaker is not likely to be known to anyone but the leaker himself (and maybe the reporter). But prosecutors deciding whether or not to investige the leak and the public in general can only guess as to the leaker's motivations. Second, and more importantly, the public value of the leak may bear little, if any, relationship to the motive of the leaker. Take, for example, Mark Felt, the infamous Deep Throat. The information he provided to Woodward and Bernstein was unquestionably newsworthy and of immense value to the public. But there's reason to believe that Felt was driven more by petty political motives than altruistic or noble ones. For all we know, the same is true of at least some of the leakers behind the secret prisons and NSA spying stories. If that's the case, however, it doesn't make the information itself any less newsworthy.
What distinguishes the Plame leak is not the motivations of the leakers, but the fact that Plame's identity was of almost no news value, at least relative to the potential damage such a leak could cause. Reporters and news organizations who receive leaks of classified information have to weigh the public's right to know against the potential harm to national security that could result from publication of the information. When the information at issue suggests that the government may be operating in violation of its own laws, this decision is a no-brainer. The secret prisons and NSA spying stories are the paradigmatic examples of situations that weigh heavily in favor of publication. In sharp contrast, Robert Novak's decision to publish Plame's identity was a highly dubious one. It's hard to see how the public's need to know that rather trivial detail could have outweighed the potential harm caused by outing a covert operative. In Novak's defense, it's not 100% clear that he understood Plame was a NOC. Then again, the CIA spokesman Novak talked to did warn him (though perhaps not as strongly as he should have) not to publish her name, and, evidently, none of the other reporters who were leaked the information thought it important enough to print.
But back to the larger issue. The fact that a newspaper is justified in publishing a story (as the Times and Post were with their recent stories) does not mean that the sources behind the stories should be automatically immune from prosecution. Absent a law providing specific protection for classified leaks from "whistleblowers," the public value of the leak is not relevant to whether a crime occurred. What we are left with is the exercise of prosecutorial discretion. When prosecuting individuals under the broad provisions of the Espionage Act, prosecutors need to be cognizant of the potential chilling effect such prosecutions may have. While it's important that national security leaks have consequences, it is also important that corruption and illegality be exposed. As Patrick Fitzgerald made clear in his press conference following the Libby indictment, prosecutions under the Espionage Act need to be handled judiciously, so as not to create a de facto Official Secrets Act. Like the editors at the Times and Post, the Justice Department, in exercising its prosecutorial discretion, needs to weigh the value of the information leaked against the harm caused by the leak. Unlike the editors of the Times and Post, however, the Justice Department may know a lot more about the potential damage, if any, caused to national security by the leak. I just hope the prosecutors involved with the current investigations take their obligations and discretion as seriously as Fitzgerald has.
Regardless of whether these leakers should be prosecuted, however, one thing is clear: in the grand scheme of things, the importance of the leak itself pales in comparison to the legal and constitutional issues raised by it. The suggestion that we should all be up in arms over the leak itself rather than the potentially illegal programs exposed by it is ridiculous. In the Plame affair, the leak itself was the story. There was nothing else to it. Here the leak is, at best, a background detail in an otherwise explosive and unquestionably important story. The attempt by the administration and its surrogates to focus the spotlight on the prosecution of leakers is a transparent attempt to change the subject and avoid the real issues. It's nothing more than cynical political myopia.
UPDATE: I just finished reading an excellent post by Ted Barlow at Crooked Timber on this same subject. If you've bothered reading this far, you'll surely enjoy his post as well.
posted by A.L. at 1:08 PM
6 Comments:
"What distinguishes the Plame leak is not the motivations of the leakers, but the fact that Plame's identity was of almost no news value, at least relative to the potential damage such a leak could cause."
and I suppose only moonbat bloggers get to decide what is "newsworthy" and speculate on the "potential damage"? I would argue that - using nepotism to send your dipshit huband who happens to work for John Kerry's campaign, to a foreign country for a cockamame "investigation", who then returns to write a bogus NYT OP-ED calling the President a liar during the lead up to an election -is certainly "newsworthy". But hey that's just me.
The nepotism has always been pure spin. Even Novak himself, in the very column that outed Plame, admitted that Wilson was well-qualified for that particular mission.
Moreover, even if he wasn't, the fact that his wife worked for the CIA was still irrelevant to the substance of Wilson's criticisms. Wilsons was either right or wrong about what he was saying. The fact that his wife worked for the CIA didn't make what he said more or less true.
Finally, whatever news value her identity had was certainly outweighed by the recklessness of printing the name of a NOC in the paper.
To even contend that Plame's identity and the existence of a massive spy program of dubious legality are on the same level of newsworthiness is silly.
"Finally, whatever news value her identity had was certainly outweighed by the recklessness of printing the name of a NOC in the paper."
Really? How do you know that? What equation does one use to measure this newsvalueness/recklessness ratio that you speak of? My guess is it depends on which party you vote for.
Maybe you're right, but if so, that's kind of sad.
I would bet that if the Plame scenario was described hypothetically (using fake names and no reference to party officiation of those involved) to a room full of Republicans/Democrats/Independents a few years ago, there would be nearly universal agreement that the news value of the agent's identity did not outweigh the potential damage that might result from exposing the agent. That seems like common sense to me, but there's obviously no way I can prove that to you. These are ultimately judgment calls.
I just think the argument that Plame's identity was of such vital importance that it had to be printed is a rather weak and disingenuous one.
Now we've gone from "of news value" to "Plame's identity was of such vital importance". I merely suggested that it was newsworthy during a bitter presidential campaign.
You are correct, it is a judgement call. I don't trust your judgement because, no offense, you're a partisan hack, and you are only capable of seeing any action by anything "Bush" related in the most cynical of terms. I don't pretend to have the ability to quantify newsworthyness versus recklessness, but you are going to have a hard time convicing me that any damage has been done to Plame or the CIA that wasn't self-inflicted. In any event, the entire bruhaha could have been avoided yet Joe Wilson decided to inject himself (and his wife) into a political campaign with his bogus Op-Ed about his CIA funded excursion.
Well AL it seems you have attracted your very own spammer and a hardcore Defender of the Bush in the last few weeks. There are others who read your blog and appreciate your thoughts.
I get it. Which is bigger/more important the leak itself or the thing that was leaked?
It will be interesting to watch all the Defenders when it becomes a Burning Bush. But Gawd that thing is hard to light on fire. Must be all the wax dummies he is surrounded by.
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