When good intentions lead to bad law, bad things happen to good people. The good people I have in mind today are Time magazine’s Matthew Cooper and the Washington Post’s Walter Pincus. Cooper faces jail time because a federal judge has upheld the subpoena by special prosecutor Patrick J. Fitzgerald commanding him to give up confidential sources as he investigates the leak of Valerie Plame’s covert CIA identity to columnist Robert Novak. Fitzgerald has issued a similar subpoena to Pincus. (See today’s Washington Post and New York Times for more of the Plame-Novak back story. Here’s the original Novak column.)
The bad law I have in mind is the Intelligence Identities Protection Act of 1982, which Fitzgerald appears to be using in prosecuting the leak. Few would doubt the good intentions of Congress when it passed the law to stop former CIA officer Philip Agee from repeatedly blowing the covers of CIA officers. Agee, a declared Marxist, began publishing the officers’ names in the mid ‘70s to stymie the agency’s intelligence-gathering capabilities and neutralize its covert operations. As Agee continued outing officers with the help of the Covert Action Information Bulletin, members of Congress denounced Agee and company as traitors and set out to write a wide-ranging law along the lines of Britain’s Official Secrets Act that would criminalize the flow of secrets to the press.
These ambitions quickly collided with the First Amendment, and thanks to several dozen compromises, the law was whittled down to the Intelligence Identities Protection Act. The measure deterred the Covert Action Information Bulletin from publishing names but was written so narrowly as to be nearly worthless as a prosecutorial tool. It appears that only one person has been successfully prosecuted under the act. *
The act makes it a criminal offense punishable by 10 years in prison and a $50,000 fine for 1) a government official with access to classified information to 2) knowingly reveal to an unauthorized person a covert agent’s identity while 3) the United States is “taking affirmative measures” to conceal the agent’s identity. (As defined by law, the covert agent must have been working outside the United States in the last five years for the law to apply.) Those are three mighty tall hurdles for a prosecutor to clear, especially the one that requires the leaker to know that he’s blowing a government secret.
The law doesn’t apply to journalists unless they repeatedly and deliberately unmask covert agents to impair U.S. intelligence activities. It was this provision that ended the Covert Action Information Bulletin’s systematic naming of names. It’s worth noting that CAIB uncovered most of its named undercover officers by cross-referencing information from the publicly available biographical registers published by the State Department, not from government leaks.
The Intelligence Identities Protection Act, then, doesn’t apply to Robert Novak, or anybody else in the press, as long as they don’t out covert agents repeatedly to damage U.S. intelligence-gathering. Since most journalists writing about national security have no interest in naming names for its own sake, it’s hard to run afoul of this law. *
But just because a law is impotent doesn’t mean it can’t screw you. Like any felony law, the Intelligence Identities Protection Act gives government sweeping powers to subpoena witnesses and command testimony in the course of an investigation. Although many journalists would like to believe that shield laws and the First Amendment give them automatic immunity, the Supreme Court found in Branzburg v. Hayes that journalists have no special privilege to duck lawful subpoenas in criminal cases.
In practice, most prosecutors observe a “qualified privilege” for journalists and don’t compel them to testify until they’ve exhausted every possible alternative route. Some prosecutors don’t subpoena journalists at all because of the injury it may do to the First Amendment. In 1998, for example, former Attorney General Dick Thornburgh and Iran-contra independent counsel Lawrence Walsh told the American Journalism Review that they couldn’t recall ever having subpoenaed a reporter. Thornburgh cited a very practical consideration for not subpoenaing reporters: “You don’t want to get the media mad at you.”
Novak’s potential legal troubles are complicated by the fact that he appears to have observed firsthand the commission of a felony—the breaking of the Intelligence Identities Protection Act. This puts Novak in the same leaky legal boat as the Louisville Courier-Journal reporter Paul Branzburg in Branzburg vs. Hayes. Branzburg, who wrote about drug crimes he witnessed firsthand, ended up in court for refusing a subpoena to answer questions about the commission of the crimes. Novak hasn’t said whether he’s been subpoenaed. Given Branzburg and Novak’s First Amendment militancy, he’s likely to spend the rest of his years in jail rather than testify.
Matthew Cooper appears to have been singled out by the prosecutor because of the belief that he, too, witnessed an Intelligence Identities Protection Act felony. Cooper shares a byline on this Time piece, which reports that “some government officials” gave Plame’s identity to the magazine. From the no-good-deed-goes-unpunished department comes this ironic tidbit. The piece Cooper co-wrote—”A War on Wilson?”—was largely supportive of the theory that the Bush administration was smearing Wilson by outing Plame. As for Walter Pincus, today’s Post reports that Pincus “has written that a Post reporter received information about [Plame] from a Bush administration official.” Presumably, Pincus is the firsthand, witnessing reporter, hence the prosecutor’s subpoena.
Fitzgerald’s Javertian pursuit of these three reporters for “information” is clearly unjust. Remember, the Intelligence Identities Protection Act was explicitly designed to avoid the establishment of an Official Secrets Act. It was meant to protect journalists such as Novak who occasionally name names. Instead, Fitzgerald is using the law to create the procedural equivalent of an Official Secrets Act. This is bullying, pure and simple.
It doesn’t need to be this way. In thousands and thousands of investigations, prosecutors who knew they could use Branzburg v. Hayes as a shortcut have answered to the higher law of the First Amendment and quelled their temptation to subpoena reporters. It’s not too late for Fitzgerald to do the same. Does he really want to see the Novak, Cooper, or Pincus cases go the Supreme Court and weaken the First Amendment?
Besides, in Matt Cooper’s case, isn’t having to write for Time magazine punishment enough?
Disclosure: Matt Cooper is a friend. Send all subpoenas to firstname.lastname@example.org. (E-mail may be quoted unless the writer stipulates otherwise.)
Correction, Aug. 11, 2004: The original version of this article incorrectly stated that the Intelligence Identities Protection Act has never been used to prosecute or imprison anyone. In 1985, Sharon M. Scranage went to jail after pleading guilty to two counts of violating the act.