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Plame Confusion The Supreme Court should clarify the law on journalistic sources (Theodore Olson)
OPINION JOURNAL.COM ^ | JUNE 12, 2005 | THEODORE OLSON

Posted on 06/11/2005 11:00:55 PM PDT by CHARLITE

It has been impossible these past few weeks to pick up a newspaper or turn on the news without being drawn into controversies arising out of confidential press sources. First, there was the Newsweek story, apparently based on a misinformed source, about mistreatment of the Quran at Guantanamo, that plunged that magazine into a violent international controversy. Then, "Deep Throat," the most famous confidential source of all, who guided Bob Woodward and Carl Bernstein through the mysteries of Watergate, revealed himself to be Mark Felt, a former deputy director of the FBI.

These events have played out against the backdrop of a long-running and high-stakes legal battle over which government officials disclosed to reporters the name of CIA operative Valerie Plame in order to discredit--or inflict revenge upon--her husband, former Ambassador Joseph Wilson, an outspoken critic of the administration's case for going to war against Iraq. In that case, a special prosecutor is seeking the imprisonment of Time magazine reporter Matt Cooper and New York Times correspondent Judith Miller, and heavy fines against Time Inc. for refusing to cough up information regarding their sources. The Supreme Court is poised to decide whether to take that case. Should it do so, the court will have an opportunity to clarify a confused and conflicting set of principles concerning whether, and under what circumstances, reporters may protect the identity of sources who wish to remain anonymous.

The precise and somewhat convoluted history of the Plame case is less important than the legal principles which it frames.

The principal reason supporting intervention by the court at this time is that no one, whether journalist, lawyer, source or judge, can say with confidence what the law is. And much of that confusion derives from the court itself:

(Excerpt) Read more at opinionjournal.com ...


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Government; News/Current Events; Philosophy
KEYWORDS: article; cialeak; freedomofspeech; freedomofthepress; josephwilson; journalists; protection; reporters; robertnovak; scotus; sources; stories; supremecourt; theodoreolson; valerieplame

1 posted on 06/11/2005 11:00:56 PM PDT by CHARLITE
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To: CHARLITE

Hmmmm?? Why should the USSC be clarifying the law .. why isn't the congress (who writes the laws) clarify the law ..??


2 posted on 06/12/2005 1:59:58 AM PDT by CyberAnt (President Bush: "America is the greatest nation on the face of the earth")
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To: cyncooper

Ping


3 posted on 06/12/2005 3:02:07 AM PDT by Peach
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To: CyberAnt; maica; ColdSpringGirl
Why should the USSC be clarifying the law .. why isn't the congress (who writes the laws) clarify the law ..??

good point

4 posted on 06/12/2005 5:33:51 AM PDT by Freee-dame
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To: CHARLITE
A free and energetic press has proven to be among our most precious resources.

The truth is our most precious resource. The internet is leaving your client and the SC by the side of the road Ted.

5 posted on 06/12/2005 5:46:48 AM PDT by PGalt
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To: Freee-dame
Mr. Olson, a former U.S. solicitor general, represents Time Inc. and Matt Cooper.
6 posted on 06/12/2005 6:21:45 AM PDT by maica
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To: Peach
These events have played out against the backdrop of a long-running and high-stakes legal battle over which government officials disclosed to reporters the name of CIA operative Valerie Plame in order to discredit--or inflict revenge upon--her husband, former Ambassador Joseph Wilson, an outspoken critic of the administration's case for going to war against Iraq.

Thanks for the ping. What a disappointment that Ted Olson apparently accepts the Wilson camp's version of events.

Also, from the appellate court opinions it appears the Supreme Court's previous ruling on the matter is pretty darn clear.

7 posted on 06/12/2005 7:07:45 AM PDT by cyncooper
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To: maica
Mr. Olson, a former U.S. solicitor general, represents Time Inc. and Matt Cooper.

Thanks for pointing that out. It seems I had heard Olson had started representing Cooper.

How telling, then, that he's pushing the "Plame's name was leaked as an act of retaliation against whistleblowing Wilson" version of events. A version that has not been established as a matter of fact. Evidence exists that her name was brought up as a way to explain the otherwise inexplicable selection of Wilson for the Niger sojourn.

8 posted on 06/12/2005 7:16:16 AM PDT by cyncooper
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To: CyberAnt
Why should the USSC be clarifying the law .. why isn't the congress (who writes the laws) clarify the law ..??

It's a good point, but not accurate..

SCOTUS does, indeed, "clarify" the law.. they interpret the law as written, and determine what that law covers, and what it does NOT cover..

In this case, the Supremes may find that the law is simply "unclear"..

Congress does "write the law".
But congress often writes laws in haste, and in doing so, enacts badly thought out, badly written law.. ( although one could surmise it is sometimes done on purpose, in order to enable a hidden purpose or agenda..)

At any rate, however worded, that law is still "the law", and the courts then read it as written.. and interpret it accordingly..

9 posted on 06/12/2005 7:18:59 AM PDT by Drammach (Freedom; not just a job, it's an adventure..)
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To: CyberAnt
"Why should the USSC be clarifying the law .. why isn't the congress (who writes the laws) clarify the law ..??"

Thinking people have been wondering the same thing for years.

But then, we see some of the idiots that we elect to congress and, suprisingly enough, they do well to even know how to read the laws that they pass, let alone understand the legalese nuances.

The tennis shoes-wearing senator from my state didn't even know what the so-called "Anti-Crime Bill" said, and was completely taken off balance when I read some of it to her.

She had voted for it just to be in lockstep with her party leaders, not because she and her staff knew what it had in it.

10 posted on 06/12/2005 7:32:00 AM PDT by nightdriver
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To: CHARLITE
Letter to the Editor, Wall Street Journal, June 23, 2005

Plame Game: Let's Call Nonsense by Its Name

In regard to "Supreme Confusion in the Plame Case" (editorial page, June 8) by Theodore B. Olson:

The Supreme Court is considering whether a special prosecutor may prosecute two journalists for not helping uncover who leaked to another journalist, Robert Novak, that Valerie Plame, a CIA officer, had recommended her husband, Joseph Wilson, for a politically charged fact-finding mission regarding WMDs in Iraq. The issue, usually framed in terms of the privileges and responsibilities of journalists, is actually much bigger: Is it legitimate to penalize anyone in connection with an act that is not itself illegal? Does the law cited as the basis of the investigation really introduce criminal penalties into the relationship between intelligence and policy?

The premise of the journalists' prosecution is that Ms. Plame's identification was a criminal violation of the Intelligence Identities Protection provision of the Intelligence Act of 1980. As one of the authors of that act and of that provision, I say that is nonsense -- with complete confidence that each and every person who had a hand in writing that law is of the same view. More important, the conservatives like myself, the liberals, and the nondescript who wrote the bill narrowly over two years intended the same result for precisely the same reason -- to prevent politically charged matters from being polluted by corrosive charges and countercharges of security violations.

Discussions of a bill to criminalize the disclosure of U.S. intelligence operatives had begun in 1977, as former CIA officer Philip Agee was publishing the names and locations of current CIA officers in his CounterSpy magazine, with the avowed intent of wrecking U.S. intelligence. No surprise then that Senate Intelligence Committee staffers referred to the bill being drafted to stop him as "the Agee bill." But just as all agreed to outlaw such systematic attempts to give aid and comfort to America's enemies, all agreed that it would be ruinous to criminalize the mere revelation of an intelligence identity in the same way as the U.S. code criminalizes the disclosure of classified communications intelligence.

For better or worse, most controversies about foreign and defense policies involve intelligence personnel. Any blanket "protection" of intelligence identities would have set up a minefield through which people of all tendencies in and out of government would have had to tread in fear. Without exception, staffers on the Intelligence Committee were sharply, personally, aware that charges of "security" breaches are the dirtiest of weapons in policy fights. All had seen these weapons used. All feared innocently mentioning someone's name in the course of a controversy, and being ruined. Worse, all could imagine opponents maliciously charging them with leaks, or worse, with being party to protecting the sources of leaks.

That is why, with rare unanimity, the bill's authors sought to eliminate the temptation for anyone to use it as a basis for investigating "leaks" or occasional disclosures such as John Kerry's, or for involving criminal law in any way in inevitable partisan struggles. That is why the law makes as clear as the English language can that it prohibits only activities that are "part of a pattern," the purpose of which is to harm U.S. intelligence.

The temptation to criminalize policy differences, however, is as strong as it is deadly. And so, during the 2004 presidential campaign, Democrats seized on Robert Novak's ordinary reporting of a Bush official's belated realization that the administration had let CIA official Plame and her husband Joseph Wilson set it up for embarrassment, and charged President Bush with a violation of law. Afraid to call nonsense by its name, Mr. Bush appointed a special prosecutor. And that eventually led to the absurd citation of two reporters for thwarting the investigation into a nonexistent crime.

Angelo M. Codevilla
Boston

(A professor of international relations at Boston University was on the staff of the Senate Intelligence Committee between 1977 and 1985.)
11 posted on 06/23/2005 5:09:25 AM PDT by OESY
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