Outing an Operative
Bruce Sanford, Victoria Toensing
Washington Attorney, Author of the Agent's Identity Act in 1982
Wednesday, January 12, 2005; 2:00 p.m. ET
Valerie Plame is practically a household name now. Columnist Robert Novak disclosed the CIA operative's identity in mid-2003, and many have since been quick to call the discloser a crime.
Who leaked the information? What makes this a crime? And what rights of protection do operatives and journalists have?
Bruce Sanford, Washington attorney, and Victoria Toensing, author of the 1982 Agent's Identity Act, were live online Wednesday, January 12, discussing the Plame investigation.
Submit your questions and comments before or during the discussion.
Editor's Note: washingtonpost.com moderators retain editorial control
over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
Washington, D.C.:
Is there any legal significance in the question whether a reporter solicits information from an official, versus a case where the official volunteers the information and the reporter is in the role of a passive recipient?
Bruce Sanford & Victoria Toensing: No. It turns on whether the CIA in fact is taking affirmative measures to conceal her identity and whether she had a foreign assignment in the last five years.
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Washington, D.C.:
It may well be that the disclosure of Ms. Plame's name and Agency affiliation was not a crime as defined by the relevant statute. However, presumably those who leaked the name to Mr. Novak were privy to her identity by means of their access to classified information through execution of a secrecy agreement. The disclosure was certainly a violation of that agreement and potential grounds for revocation of the individual(s) clearance, and possible loss of employment. This type of unauthorized disclosure is rampant in this town and it is done for political purposes on both sides of the aisle.
Do you not at least agree that, while perhaps not deserving the scope of a criminal investigation, the matter requires an investigation by relevant security officials to try and plug the leaks?
Bruce Sanford & Victoria Toensing: The presumption is incorrect. As the Op-Ed says, knowing she works for the CIA does not provide the knowledge that the government is keeping that information secret. Secondly, there could be an internal CIA investigation by the IG. The Justice Department can only investigate if there is a crime.
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Washington, D.C.:
In your Op-Ed today you describe in three paragraphs how the CIA did not signal to anyone that leaking Valerie Plame's CIA status was a problem. However, you failed to mention the letter from the General Counsel of the CIA to the Justice Department requesting an investigation. Don't you think that was a signal that the CIA viewed the leak as a problem?
Bruce Sanford & Victoria Toensing: After the fact doesn't count. It's what the CIA was doing prior to the leak that is key to the crime.
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Rockville, Md.:
Isn't your article today tilted a bit too far away from goals of the Act you created?
Aren't your opinions of Mr. Wilson's qualifications and your characterizations of White House and CIA behavior irrelevant? Isn't that the job of the grand jury?
Why not allow the press and the DC cocktail crowd to freely discuss the identities of nearly all undercover personnel, except in that rare case where you would agree the last secret need be protected?
Bruce Sanford & Victoria Toensing: No. It should be remembered that the specific reason the Act was passed was to deal with Philip Agee and people of his ilk.
As to Mr. Wilson's qualifications and the circumstances of his being sent to Niger and other CIA behavior, all of these factors are crucial to whether a crime was committed. What we are saying is that when a reporter is to be supoenaed, the Judge should make that legal determination, i.e. that a crime has been committed, prior to having the supboena executed.
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Asheville, N.C.:
Your article offers an interesting perspective on the situation. However, the biggest question in my mind is not whether the journalists committed a crime but whether the administration official who leaked the information did. I find it disturbing that someone can dedicate a major part of her life working (under potentially risky circumstances) for a government, and then just be outed like that. At the very least, it makes the administration look pretty sleazy. And if it does potentially put her in any danger at all when traveling abroad, then why wouldn't that be a crime?
Bruce Sanford & Victoria Toensing: We said the journalist did not commit a crime. The entire Op-Ed discusses the facts and legal standards necessary for the official to have committed a crime. The real issue is whether the CIA took the necessary steps to keep Plame's identity secret.
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Washington, D.C.:
In 2001, in an editorial in the WP about the leaking of the contents of a federal wiretap relating to the investigation of former Senator Robert Torricelli, entitled "They Call It a Leak. I Call it a Crime," Toensing asserted that "any time the disclosure is a felony...the policy is to conduct a concerted effort to find the lawbreaker." She warned that "if a leaker is never caught – and has no fear of being caught – there is no discomfort in leaking." Toensing concluded that "the leak must be investigated fully if the law has any meaning" and "if that requires subpoenaing a reporter's phone records, so be it." Isn't the only difference between the Plame case (where she urges calling off the dogs) and the Toricelli case that this one involves a Republican administration to which she is closely allied?
Bruce Sanford & Victoria Toensing: That article was about a grand jury leak, which has none of the high requirements to find criminal conduct that this specific law incorporates. They are two different laws. Toensing has sued both Republican and Democratic administrations.
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Rockville, Md.:
At some point will you come out and state that Novack's disclosing the name of a covert CIA while not illegal is at least something to be frowned on? I was waiting for that kind of sentiment to appear in your column today, but you focused exclusively on the legal aspects.
Bruce Sanford & Victoria Toensing: The article is about the law and whether the leaker committed a crime. As for Robert Novak's professional ethics, we should remember that his column dealt with the central national security issue of our times -- i.e. whether the Bush Administration invaded Iraq with a reasonable, if mistaken, belief that there were weapons of mass destruction there. We should want journalists aggressively reporting on the intelligence gathering capabilities of the CIA in such situations.
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Washington, D.C.:
Is there anything akin to an Internal Affairs division within the CIA? What internal monitoring does the CIA have on itself?
Bruce Sanford & Victoria Toensing: The CIA has an Inspector General (IG)responsible for internal investigations.
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Washington, D.C.:
Why are the (liberal) authors Judith Miller and Matthew Cooper being threatened with jail time while Bob Novak, the (conservative) author of the original article, is left alone? It seems politically crooked.
Bruce Sanford & Victoria Toensing: Because Bob Novak has chosen not to talk about the situation, we have no idea what his status is.
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Alexandria, Va.:
After he wrote the first column, Novak wrote a second, in which he named the CIA front company that Plame had worked for overseas. I'm surprised that the press hasn't focused on that more -- what Novak did blew an entire operation and the identities of all the NOC's who had worked for that company.
Bruce Sanford & Victoria Toensing: It's not necessarily against the law to reveal a CIA front company. It would depend on whether the information is classified. As a matter of public policy, journalists would not be prosecuted for such a disclosure in most situations.
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Guadeloupe, French West Indies:
What are the checks and balances in our system to determine whether a judge is simply doing his job in pursuing whoever exposed Ms. Plame's identity, or whether he is pursuing an agenda of retaliation. Someone, somewhere, should be able to intervene if the latter is the case.
Bruce Sanford & Victoria Toensing: There is an appellate procedure that could address such issues.
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Alexandria, Va.:
What would be the repercussions for the CIA if they are at fault?
Bruce Sanford & Victoria Toensing: If someone from the CIA lied under oath or when giving information during an interview with law enforcement, it is a felony.
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Washington, D.C.:
Your op-ed piece in today's Post characterizes the Intelligence Identities Protection Act as drawing a VERY fine line between those CIA employees who would be covered by the Act and those who would not (i.e. must be covert, covert status must be classified, must have had permanent assignment in a foreign country currently or within the last five years, government must be taking active measures to keep identity covert etc.).
Given such a narrow definition (assuming your characterization is accurate)any discussion of whether a certain case meets these criteria, like your op-ed piece, inevitably degenerates into a Clintonesque argument over what the meaning of "is" is.
Given the obvious importance of protecting our intelligence assets, what was the justification for providing them such nit-picky protection in the Act?
Bruce Sanford & Victoria Toensing: As the Op-Ed says, Congress had no intention of prosecuting a reporter or the government employee for an unintentional disclosure, specifically when that employee was not aware the agent was covert and that that covert status was classified. Criminal laws are always construed narrowly. In this particular statute, Congress also wrote it narrowly because of protecting the First Amendment.
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San Francisco, Ca.:
What was the value to the American public or national security of publishing the identity of Valerie Plame and her front company?
Bruce Sanford & Victoria Toensing: If nepotism is involved in the CIA assigning an important mission, the public should know about it. The effectiveness of our intelligence community has been a major national security issue for the last two years.
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New York, N.Y.:
We know that at the time of the disclosure of Ms. Plame's CIA affiliation the government was taking "affirmative actions" to conceal her identity, including maintaining the fiction that she was an energy consultant employed with Brewster & Jennings, an ostensibly private firm used by the CIA as a front. Your entire legal analysis appears to rest on the contention that a weak and inadequate response from the CIA official designated to speak to Mr. Novak completely vitiates those "affirmative actions." While this may in fact be relevant in assessing Mr. Novak's potential culpability, how does this analysis in any way absolve the administration official that leaked to Mr. Novak? The leak had taken place prior to the CIA's communication with Mr. Novak.
Bruce Sanford & Victoria Toensing: Just giving someone a false identity and a front does not meet the legal standard of affirmative measures especially when she has a desk job at Langley and is driving in and out every day. Novak is not culpable under the statute. But he could go to jail for refusing to provide information to the Grand Jury is ordered to do so by the court.
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Belle, W.V.:
Thank you for taking questions today. I'm not an attorney and certainly don't know anything about secrecy laws. As an average and concerned citizen, do I have the right to know if a government official leaked the name of a CIA employee, even if no crime was commited? Further, do I have the right to know who the so-called leaker was?
Bruce Sanford & Victoria Toensing: There is no basis in the Constitution for you to have a "right" to know who committed a crime. It is however the government's responsbility to know when a crime was committed and when to pursue it. The late Justice Potter Stewart also once said it is government's job to keep its secrets and it's the press' job to find them out.
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Atlanta, Ga.:
You wrote earlier in this discussion that reporters should be encouraged to investigate what the CIA knew/was doing about WMD. True. However, Novak was warned by the CIA that exposure of Plame's name might cause difficulties (see Novak's subsequent column on this), yet he disclosed it anyway. Novak did this because he is a partisan columnist, who uses reporting techniques to write his biased columns. I don't think he was digging into a national security issue for the benefit of everyone, as a reporter would do. Can you see why CIA operatives, past and present, are incensed by this leak?
Bruce Sanford & Victoria Toensing: "Might cause difficulties" does not reach the legal standard of affirmative measures necessary to qualify her as a covert agent under the law.
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Washington, D.C.:
When can we expect the investigation's completion?
Bruce Sanford & Victoria Toensing: We have no idea. It's up to the Special Prosecutor.
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Bethesda, Md.:
Please explain how Wilson's qualifications are relevant to whether a crime was committed. Either it is legal to out his wife or it is not. I don't see how Wilson's qualifications for the job are related at all.
Bruce Sanford & Victoria Toensing: By asking a person arguably unqualified to take on an important assignment when his wife was the expert, is evidence the CIA was not being cautious about her identity. It is significant that he was not asked to sign a confidentiality agreement and was allowed to print an Op-Ed piece in The New York Times.
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Dana Point, Ca.:
Why would Novak not be asked questions by the Grand Jury, like the other reporters? Can he avoid answering questions without a penalty?
Bruce Sanford & Victoria Toensing: He cannot avoid being asked questions by the Grand Jury if ordered to answer them by a judge. He has chosen not to comment on whether he was asked to appear before the Grand Jury, so we don't know his status.
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McLean, Va.:
I always thought that the fact that an employee was in a covert status was classified, in and of itself. The CIA, in placing and maintaining the employee in covert status seems to be fulfilling your requirement of administratively protecting the covert status. Anyone who told a reporter of the covert employee's employment would realize this was classified information. Therefore it seems to me that there is a security violation at a minimum. As far as expecting the IG's office to conduct the investigation, doesn't that task belong to the Office of Security?
Bruce Sanford & Victoria Toensing: Not all CIA employees have a classified position or a covert status. For a crime to be committed, the government employee giving the information to the reporter must know the person's status is classified and that she is truly covert.
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Charlottesville, Va.:
Question 1: Can you publish a web link to the relevant legal statute? I have found a link that contains excerpts, but it did not contain mention of a five year limitation.
Question 2: Is there legal recourse for the reporters being charged, due to the fact that Bob Novak has not been charged, and definitely knows the source. Whereas Judith Miller and Matthew Cooper have information that is not firsthand. At some level, charging them would seem to be either incompetence, political malice, or fear of offending Mr. Novak's friends.
Just a comment: your editorial piece seemed to indicate no harm, no foul since Plame herself would not be in danger. You ignore all of the people in foreign lands that Plame was known to work with, both foreigners and U.S. citizens, are at risk.
Bruce Sanford & Victoria Toensing: The cite related to the five year period is 50 USC Section 426 (4)(A) (ii).
The reporters are not being charged. They are being held in contempt. The recourse is an appeal which is being taken.
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