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First Amendment Perversion
October 3, 2003
By Burt Worm

"The 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 crime.

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 his wife."

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 criminal conduct."

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.

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