By Burt Worm
press was to serve the governed, not the governors. . . .
The press was protected so that it could bare the secrets
of government and inform the people." - Justice Hugo Black,
New York Times Co. v. United States, concurring opinion.
The Wilson/Plame betrayal story gets more complicated by
the hour as the White House and syndicated columnist Robert
Novak work swiftly to cover their respective tracks with the
dust kicked up from their frantic spinning. On CNN on Monday,
Novak denied that he had been told that Ambassador Joseph
Wilson's wife Valerie Plame worked in covert operations by
someone in the administration, a fact he reported in his July
14 column in these words:
"Wilson never worked for the CIA, but his wife, Valerie
Plame, is an Agency operative on weapons of mass destruction.
Two senior administration officials told me Wilson's wife
suggested sending him to Niger to investigate the Italian
report. The CIA says its counter-proliferation officials selected
Wilson and asked his wife to contact him. "I will not answer
any question about my wife,' Wilson told me."
Strangely enough, Novak also denied on Monday that he knew
Plame was an "operative," claiming now that he thought she
was merely an "analyst" - i.e., an intelligence worker not
covered by the Intelligence Identities Protection Act of 1982,
the federal law the CIA alleges may have been violated by
the outing of Plame.
It is, of course, possible that Novak is telling the truth
that he learned about Plame from a source other than the White
House. Possibly it's common knowledge among Washington's ruling
class and their spokespersons in the elite press corps that
Valerie Plame is a CIA agent. Possibly Novak learned this
from someone in the CIA while he was researching his story
on Wilson's trip to Niger to investigate the fraudulent documents
alleging Saddam's intention to purchase yellow cake uranium
for his nuclear weapons program. But why would someone in
the CIA be so careless about the identity of an operative
working in a field as sensitive as weapons of mass destruction?
It would have to have been sheer carelessness to cause such
a slip; the CIA would have had no motive for revealing Plame's
identity, in fact would have had much greater motive for keeping
her business secret. Of course, the White House, reeling from
Wilson's damning op-ed piece about the Niger document in the
New York Times eight days before Novak's piece appeared,
would have had a superabundance of motive to publicize the
covert operations of Wilson's wife.
In any case, Novak's explanation on CNN contradicts not
only his original article, but also a quote Josh Marshall
of talkingpointsmemo.com has uncovered in a July 22 story
in the Newsday archives: "I didn't dig it out, it was given
to me," Novak said. "They [the administration sources] thought
it was significant, they gave me the name and I used it."
Does this make Novak's current story a lie? Not necessarily.
Perhaps Novak's memory, like fine wine, only improves with
time. But it strikes me as an unusual tack (not to say a suspicious
one) for a journalist in his situation to take, this belittling
of the role the two administration officials played in his
scoop, as well as this apparent attempt to diminish the significance
of the scoop itself.
Novak's clumsy spinning reminds me of CIA Director George
Tenet's contortions to protect both himself and the Bush administration
last summer in the wake of Wilson's revelations about the
Niger controversy. While strenuously asserting "no great crime"
was committed by his admitted sources in the administration,
Novak, like Tenet, has wound up making himself look foolish,
incompetent, mendacious - or afraid. And the officials he
is protecting may, in fact, be getting away with a serious
The tragic irony of l'affaire Novak is that it could
be leading him toward the position journalists frequently
find themselves in when breaking controversial political stories,
a position that frequently makes of journalists true heroes
of freedom, if only they have the courage for it.
Consider the case of Vanessa Leggett, an author from Houston
who was jailed for more than 160 days in 2000 and 2001 for
refusing to turn over her source material for a book to a
Fifth Circuit grand jury in a murder trial, saying she refused
to do the government's work for them. The principle on which
Leggett based her stand - and, presumably, on which Novak
would base his - is expressed in the 1972 US Supreme Court
decision on Branzburg v. Hayes: "Without some protection
for seeking out the news, freedom of the press could be eviscerated...[G]rand
juries must operate within the limits of the First Amendment
as well as the Fifth."
Justice William O. Douglas, who was on the Court during
Branzburg, argued that "the press has a preferred position
in our constitutional scheme, not to enable it to make money,
not to set newsmen apart as a favored class, but to bring
fulfillment to the public's right to know." Washington Post
press pundit Howard Kurtz echoes Douglas in a column on the
scandal. "There are situations," Kurtz writes, "in which it
might be useful for a journalist to take information from
a prosecutor or grand juror - say, involving a scandal that
could affect public health or safety - even though it is a
crime for the leaker to reveal it. It is not a crime for a
reporter to receive such information, and the reporter could
be serving the public by getting it out."
But even Kurtz is troubled by the quality of the information
Novak's sources were seeking to publicize. "In this case,
it's hard to fully understand what the benefit was of outing
Wilson's wife," Kurtz writes. "It certainly appears, on the
surface, like a couple of administration officials were trying
to discredit a prominent White House critic by going after
As an experiment, let us take at face value the possibility
that Novak's publication of private information was in the
public interest. The point of Novak's July 22 column was that
Wilson's op-ed piece in the Times disguised a secret
agenda, shared by his wife, to discredit the Bush administration
for purely political reasons. In Novak's words, "The story,
actually, is whether the administration deliberately ignored
Wilson's advice, and that requires scrutinizing the CIA summary
of what their envoy reported. The Agency never before has
declassified that kind of information, but the White House
would like it to do just that now - in its and in the public's
interest." This sounds to me like an official White House-approved
threat to "get the facts out" - or more likely an empty bluff
intended to create the illusion that the Bushists have nothing
ulterior to hide, even if Wilson and the CIA do.
Let's be clear about what Novak's column implicitly asserts
is in the public's interest to know: that Wilson's debunking
of the Niger document a full year before the Bush administration
rushed the nation into war on the presumption of a dire threat
from Iraq's weapons of mass destruction was some kind of prescient
political scheme by dissidents in the CIA to embarrass this
White House. Or is there possibly some less insane point Novak's
leakers were trying to make that I can't see?
Even if the allegation in it were true (though how anyone
could prove such a supernatural claim is beyond me), it's
painfully obvious that Novak's column was used as a weapon
by people at the highest reaches of government to blast a
private citizen critical of its policies. And if the Washington
Post story that reopened the scandal is true (which should
be much easier to prove or disprove), then these officials
- or others? - were hoping to shock and awe Wilson using possibly
five other influential news venues, including NBC's Andrea
Mitchell and Time magazine, with exactly the same story.
Amazingly, the other journalists didn't bite. Mitchell, basking
in the luxury of good judgment or good fortune, claims that
she just doesn't do outing of CIA operatives. But is it good
judgment to protect the identity of White House operatives
who may have broken the law?
The epigraph at the top of this story came to my attention
because Justice Douglas cited it in his dissent in Branzburg.
The principles that Douglas and Black passionately espoused,
and that defenders of the confidentiality of sources like
Vanessa Legget's commonly cite, are expressed in both assenting
and dissenting opinions in Branzburg, which found that reporters
were not immune from subpoenas to grand juries if their sources
were engaged in criminal activities and the grand jury's investigations
were conducted in "good faith."
In a supplemental concurring opinion, Justice Lewis Powell
took pains to draw a distinction between the journalists'
rights under the First Amendment and his or her responsibilities
as a citizen. "The Court does not hold that newsmen, subpoenaed
to testify before a grand jury, are without constitutional
rights with respect to the gathering of news or in safeguarding
their sources," Justice Powell wrote. "Certainly, we do not
hold... that state and federal authorities are free to 'annex'
the news media as 'an investigative arm of government.'"
But, summarizing the decision, Powell added, "The asserted
claim to privilege should be judged on its facts by the striking
of a proper balance between freedom of the press and the obligation
of all citizens to give relevant testimony with respect to
As a firm believer in the First Amendment, freedom of the
press, confidentiality of sources, etc., I have less trouble
with Robert Novak's reflexive protection of the sources for
his July 22 column than I do with Andrea Mitchell's protection
of them. And I have problems with the rapidly evolving position
of the nation's media organizations in support of Mitchell
and the other four journalists White House operatives contacted.
Bill Felber, editor of Kansas's The Manhattan Mercury
and freedom of information chairman for the Associated Press
Managing Editors, according to a Salon.com news story, says
a Justice Department probe of journalists "would be fought
on several grounds. The question really comes down to whether
there are other ways to do this that do less damage to the
idea of the First Amendment."
Felber may have a point about the need to proceed cautiously
and to resist the Ashcroft DOJ's unsubtle and constitutionally
reckless approach to criminal investigations. But a more critical
issue for journalists and editors to grapple with is how l'affaire
Novak demonstrates the ease with which those in power
are able to manipulate the press in its current docile state.
It would be a supreme perversion of press freedom if the White
House and the elite news organizations that so often do its
bidding appeal to the First Amendment to justify keeping the
ugliest secrets of government out of public view.