For more than two years, many in the mainstream media have been buzzing about the prospect that White House Deputy Chief of Staff Karl Rove or Vice President Chief of Staff Scooter Libby would be indicted for revealing the name of CIA officer Valerie Plame.
The press has been full of righteous indignation that high officials in the Bush administration would endanger the identity of a covert agent. And it has been argued that administration officials did this to punish a fearless truth-teller -- Plame's husband, Joseph Wilson -- a former ambassador who charged that the Bush administration purposefully ignored intelligence and lied about Iraqi attempts to obtain uranium to develop weapons of mass destruction.
The problem is that the narrative line being offered up by the press is almost entirely wrong. And it is almost certainly true that neither of the statutes that might cover the situation -- the Intelligence Identities Protection Act of 1982 and the Espionage Act of 1917 -- was violated, at least by anyone in the administration.
Any indictment of Rove or Libby brought by special prosecutor Patrick Fitzgerald's grand jury, which is scheduled to go out of existence on Oct. 28, would in my opinion be a grave injustice. It would hurt the administration by depriving it of the services of one or more very talented and dedicated officials. But it would also set a bad precedent by creating a precedent that would obstruct the flow of information from government to the press and the people.
Consider the Intelligence Identities Protection Act. To violate it, you must disclose the name of a covert agent who has served abroad within the last five years, while knowing that that person was a covert agent. It does not appear that Plame was a covert agent who had served abroad within five years of the disclosure of her name to reporters. She was a desk officer at CIA headquarters at Langley at that time. This law was narrowly drafted and intended only to apply to people who purposefully endangered covert agents abroad. That is clearly not the case here.
The Espionage Act is less narrowly drafted. But it does set out specific things that cannot be disclosed -- "information concerning any vessel, aircraft, work of defense, navy yard," etc. The list does not include identity of CIA agents -- there weren't any in 1917 -- which is why the drafters of the 1982 IIPA felt the need for a new law to protect a very limited class of covert operatives.
So it seems clear to me that an indictment under either of these statutes would be a gross injustice. It is a general principle of law that when the government wants to criminalize acts other than traditional common law crimes like murder or theft, it must set out with great specificity the conduct that is forbidden. To visit the rigors of criminal indictment, trial and punishment on someone who has done nothing that is specifically forbidden is unjust -- the very definition of injustice.
That leaves the question of whether Rove, Libby or someone else will be indicted for perjury, obstruction of justice or making false statements in the course of the investigation. But why should there be indictments if there was no crime?
True, Rove and Libby did seek to discredit Joseph Wilson -- as they should well have done. As the Senate Intelligence Committee concluded in a bipartisan report in July 2004, just about everything Wilson said publicly about his trip to Niger was untrue. He said that he had discredited reports that Iraq sought to buy uranium in Niger. But the CIA people to whom he reported concluded that, if anything, he substantiated such reports. He said that he pointed out that certain other intelligence reports were forged. But the forgeries did not appear until eight months after his trip. He said his wife had nothing to do with his trip to Niger. But it was she who recommended him for the trip. And on and on.
In the absence of a violation of the underlying espionage acts, any indictment here arising from the course of the investigation would be, in my view, unjust and an abuse of prosecutorial discretion. It would also be, as the liberal commentator Jacob Weisberg has pointed out, a long step toward something like the British Official Secrets Act -- a precedent that would staunch the flow of information from the government to the press and the people.
The press has been shrieking for Rove's and Libby's scalp. If they're indicted, the administration will be hurt in the short run, but in the long run it will be the press and the people who will suffer.