J-school deans ignored Plame case facts

Doug MacEachern
Jul. 30, 2006 12:00 AM
Just when my team of therapists had convinced me to (intellectually) let go of Valerie Plame . . . more stuff happens.

It billows up in puffs of purple smoke like yet another nerve-rattling appearance from the Wicked Witch of the West.

In one big poof, a group of four journalism school deans wrote in the Washington Post earlier this month that nearly all of the national-security exposés published, mostly, in the New York Times in recent years are justified. All except one.

“There are situations in which that chance should not be taken,” they wrote. “For instance, there was no justification for columnist Robert D. Novak to have unmasked Valerie Plame as a covert CIA officer.”

I have long argued that journalism is like plumbing. You learn it on the job at the elbow of practicing masters. The anointment of fellows like these J-school deans – all from schools duly identified as “prestigious” in every news story that has published their op-ed – are recommended if you wish to rise high in the ranks of editors. But journalists still learn best by shoveling through muck in the trenches.

This isn’t just old-school whimsy. The good professors themselves provide a classic example of the isolating nature of their ivory towers in their preening treatise on the public’s right to know some things but not others.

As if it is accepted gospel, they identify the former Vanity Fair cover-woman as a “covert” CIA officer.

Since the summer of 2003, Plame’s “covert” status has been the keystone that would lead to Karl Rove’s desperately anticipated frog-march out of the White House.

But after more than two years of investigation, special prosecutor Patrick Fitzgerald abandoned that elementary factoid. He gave up altogether determining what Plame’s status was with the CIA. If not covert, was it “classified”? That latter would seem to be the case. But what did that mean? Fitzgerald decided it was not his job to find out.

But while the prosecutor who has lived and breathed “covert” vs. “classified” vs. “cover girl” for three years could not conclude Plame’s status, four university deans blithely conclude that they know. She was “covert,” and therefore should never have been named in the July 14, 2003, column by Novak.

I will grant you that the Plame story is the most convoluted, intractable partisan story of our era. It is far more complex and murky than Watergate ever was, mostly because the latter built upon a set of facts that few people disputed. More important, no one (except, oh, Richard Nixon) ran from Watergate facts because they proved inconvenient to preconceived conclusions.

The Plame story is different because it comes to news readers from a universe that is impervious to the gamma rays of discovery. That is to say, discovery by people other than mind-reading university professors who know facts that Fitzgerald does not.

A few days ago, for example, I happened across a lengthy report from the Financial Times of London, a not-insubstantial news source.

“The FT has now learnt that three European intelligence services were aware of possible illicit trade in uranium from Niger between 1999 and 2001,” FT reporter Mark Huband wrote. The intelligence those agencies gathered implicated Niger in “possible illicit uranium deals with at least five countries, including Iraq.”

Huband’s report was published over two years ago, on June 28, 2004.

Now, the relevance of such a story is anchored not so much in the Plame Affair as much as in the mother lode controversy that produced the Plame nugget. That would be the famous “16 words” spoken by President Bush in his 2003 State of the Union speech about Saddam Hussein’s pursuit of atom bomb-making materials in Africa, which Plame’s husband, Joseph Wilson, claimed to have proved were lies.

Alas, we don’t have sufficient space here to go through the (lengthy) litany of Wilson’s own “misspeaking” and bald-faced lies on this and other subjects. Except one.

Wilson himself told two officials from the CIA’s Directorate of Operations on March 5, 2002, that former Nigerien Prime Minister Ibrahim Mayaki told him of a meeting with an Iraqi delegation in 1999. Wilson told the CIA agents that the former prime minister concluded from the meeting that the Iraqis were seeking “yellowcake” uranium, the only product of value, except goats, produced in Niger. This uncontested fact can be found on Page 43 of the 2004 Senate Intelligence Committee investigation into Iraqi weapons of mass destruction, under the heading “Niger.”

But few journalism school deans appear inclined to look that up. Nor reports in the reputable Financial Times of London that support Wilson’s only honest words about Niger. Not even, for that matter, the honest-if-incomplete conclusions of special prosecutor Fitzgerald.

E-mail doug.maceachern@arizonarepublic.com.

Cheney’s leaking represents an abuse of power, not freedom of speech.

Cheney’s leaking represents an abuse of power, not freedom of speech.
By Erwin Chemerinsky
Posted Tuesday, July 25, 2006, at 3:06 PM ET
The top government officials who revealed that Valerie Plame Wilson was a secret operative for the Central Intelligence Agency egregiously abused their power and inflicted great harms on Ms. Wilson and her husband, Joseph Wilson. Yet a recent article in Slate suggests that such leaks were not only legal but are in fact protected speech under the First Amendment. To give this speech First Amendment protection would turn the abuser into a victim and undermine basic principles of tort law, espionage law, and the Constitution.

Vice President Richard Cheney, his former Chief of Staff Lewis Libby, and President Bush’s senior policy adviser Karl Rove disclosed highly sensitive information to the media, entirely out of a desire to retaliate against Valerie Plame Wilson’s husband, Joseph Wilson. Wilson’s crime? Describing in a New York Times op-ed the falsehoods contained in the president’s State of the Union address. This unprecedented action—revealing the identity of a secret operative for partisan gain—effectively ended Valerie Plame Wilson’s career in the CIA and put her, her family, and those who worked with her in danger.

Joseph Wilson and Valerie Plame Wilson have filed a civil suit for money damages. (Disclosure: I am co-counsel in that suit.) Their case alleges that Cheney, Libby, Rove, and others violated the Wilson’s constitutional rights, engaged in a conspiracy to violate their civil rights, and committed torts such as invasion of privacy by publicly disclosing private facts.

Recently, Yale Law School’s professor Akhil Amar wrote for Slate that Vice President Cheney’s conduct, and by implication the actions of Libby and Rove as well, are protected by the First Amendment. Professor Amar analogizes Cheney, Libby, and Rove to John Peter Zenger and whistle-blowers in general.

It is hard to imagine a less apt analogy. Zenger was a publisher in the 1730s who was sued for defamation for publishing important criticisms of the government. He raised freedom of the press as a defense. Whistle-blowers expose government wrongdoing and thus perform an important public service, often putting their own careers in jeopardy. But unlike Zenger and government whistle-blowers, Cheney, Libby, and Rove did nothing noble in disclosing Ms. Wilson’s identity as a secret agent. The information they leaked gave the public no information they needed to know. There was no greater good served by this leak. They simply ruined her career and put people in danger out of a partisan desire to embarrass a critic of the administration.

As United States Court of Appeals for the District of Columbia Judge David Tatel observed Feb. 15, 2005: “An alleged covert agent, Plame evidently traveled overseas on clandestine missions beginning nearly two decades ago. Her exposure, therefore, not only may have jeopardized any covert activities of her own, but also may have endangered friends and associates from whom she might have gathered information in the past.” Judge Tatel referred to the leak as a “serious breach of public trust.”

Consider also that the disclosure about Plame would have been unlawful had it been made by an anti-CIA campaigner, and it was just as unlawful when made by the vice president’s men. If the First Amendment protects Cheney’s leak, it would seemingly protect a similar leak by an enemy of the CIA.

The fact that Cheney, Libby, and Rove accomplished all of this by speaking to reporters does not somehow immunize their speech under the First Amendment. Although professor Amar is correct that even government officials enjoy freedom of speech, that freedom is not without limits. The Supreme Court has consistently said that speech by government employees is protected only if it involves a matter of public concern. Ms. Wilson’s status as a secret agent was obviously not of any public concern. Mr. Wilson’s claims about President Bush’s veracity were, on the other hand, a matter of public concern. But if the vice president wanted to criticize Ambassador Wilson, he certainly did not need to disclose Ms. Wilson’s undercover employment to do so.

Moreover, even speech of public concern is not always protected by the First Amendment. The law has long recognized, for example, claims against speech that invades privacy by publicly disclosing private facts. Both the Constitution and tort law allow claims for such invasion of privacy, and the fact that Valerie Plame worked as a secret operative for the government was surely private.

Conduct that ruins a person’s career and puts her in danger for no reason other than partisan gain simply is not protected by the First Amendment. Quite the contrary, the actions of Cheney, Rove, and Libby violated Joseph Wilson’s free-speech rights by
punishing him for speaking out against the administration. The law is clear that government officials act unconstitutionally when they punish people for exercising their right to speak.

Also, the law is clear that arbitrarily discriminating against a person violates the Constitution, even when it takes the form of spoken words. For instance, employers are liable if they sexually harass an employee—even if that harassment comes only via speech. Ms. Wilson was subjected to such arbitrary and discriminatory treatment by Cheney, Rove, and Libby. They cannot cloak such conduct in the First Amendment in order to absolve themselves of wrongdoing.

Finally, professor Amar points to the absence of any criminal charges—except against Lewis Libby—to imply that they have done nothing wrong. But that has no relevance at all in determining whether Mr. and Ms. Wilson have a civil cause of action, or whether the First Amendment protects the speech of Cheney, Libby, and Rove. The complaint filed by Mr. and Ms. Wilson alleges violations of free speech, denial of equal protection, and invasion of privacy. None of these are crimes, but all are a basis for civil liability. The lack of criminal charges hardly makes the civil claims go away.

Professor Amar’s invocation of the vice president’s free-speech rights simply misses the point. The First Amendment does not protect government officials intentionally inflicting great harm on others, regardless of whether the harm arises from the (unlawful) disclosure of confidential information, and even if they do so through their speech. Cheney, Libby, and Rove abused their power and should be held accountable. That is why the Wilsons filed a civil suit, and that is why they should prevail.

Erwin Chemerinsky, Alston & Bird professor of law and political science at Duke University, is co-counsel for Joseph Wilson and Valerie Plame Wilson in Wilson v. Cheney.

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No security clearances revoked over Plame

July 24, 2006, 4:14PM
By TONI LOCY Associated Press Writer
© 2006 The Associated Press

WASHINGTON — No one in the Bush administration has been stripped of security clearances over the leak of former CIA officer Valerie Plame’s identity to reporters three years ago.

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In a letter to Sen. Frank Lautenberg, D-N.J., the CIA said it had no record of anyone in the administration who is no longer privy to the nation’s most sensitive secrets because of the Plame leak.

The CIA also revealed it has not yet completed a formal assessment of the damage to national security that may have been caused by Plame’s outing in 2003.

The assessment won’t be completed until a criminal investigation of the leak has been concluded, Christopher J. Walker, the CIA’s director of congressional affairs, said in the July 19 letter to Lautenberg.

For more than a year, Lautenberg and other Democrats have been calling on President Bush to fire presidential adviser Karl Rove and any other aides who discussed Plame’s CIA status with reporters _ or, at the least, to revoke their security clearances.

So far, only I. Lewis “Scooter” Libby, Vice President Dick Cheney’s former chief of staff, has been charged in the investigation. Libby faces trial in January on perjury and obstruction-of-justice charges for lying to the FBI and a federal grand jury about how he learned about Plame’s CIA status and what he later told reporters.

Rove’s lawyer revealed in June that Special Counsel Patrick Fitzgerald had decided not to seek criminal charges against the senior White House aide, who was the architect of Bush’s presidential election campaigns.

Plame’s identity as a CIA officer was classified information when it was revealed in a July 14, 2003, article by syndicated columnist Robert Novak. The Novak column appeared eight days after Plame’s husband, former U.S. Ambassador Joseph Wilson, alleged in an opinion piece in The New York Times that the administration had twisted prewar intelligence on Iraq to justify going to war.

Earlier this month, Plame and Wilson filed a lawsuit accusing Cheney, Rove, Libby and 10 unnamed administration officials of leaking Plame’s identity and wrecking her career to punish Wilson for his criticism of the White House’s motives in Iraq.

Plame left the CIA in January and is writing a book about what happened to her.

“We know that members of the administration were leaking classified information, so it makes no sense that no one has had their security clearances revoked,” Lautenberg said. “President Bush should not allow anyone who has divulged sensitive information to have continued access to national secrets.”