There is nothing like the prospect of an imminent hanging to concentrate the mind; apparently, the prospect of having one of their reporters go to jail for eighteen months has concentrated the minds of the NY Times editors on the legal subtleties of the Valerie Plame leak investigation.
In one of the most comically self-serving, late-to-the-party flip-flops we have enjoyed today, the Times editors tell us this:
Meanwhile, an even more basic issue has been raised in recent articles in The Washington Post and elsewhere: the real possibility that the disclosure of Ms. Plame's identity, while an abuse of power, may not have violated any law. Before any reporters are jailed, searching court review is needed to determine whether the facts indeed support a criminal prosecution under existing provisions of the law protecting the identities of covert operatives. Some judge may have looked at the issue, but we have no way of knowing, given the bizarre level of secrecy that still prevents the reporters being threatened with jail from seeing the nine-page blanked-out portion of last week's decision evaluating the evidence.
My goodness, Jack Shafer gets results! "Recent articles" in the Washington Post and elsewhere? The WaPo presented this argument on Jan 12; the Wall Street Journal ran substantially the same piece on Dec 14, 2004. Has the Times finally cracked the case of the purloined op-ed, with the answer hidden in plain sight?
As to the theory itself, I am firmly on both sides of this. Will the argument keep Ms. Miller out of jail? My guess is that a court will not be inclined to pre-judge the case the Special Counsel may be building - conceivably, the evidence held by Ms. Miller would be the key to clearing the hurdles set by the 1982 Intelligence Identities Protection Act, and there may be other statutes that can be applied (At least, Mark Kleiman and I thought so in December). Consequently, a review court will probably uphold the order to Ms. Miller to provide her evidence.
That said, the "no underlying crime" argument may be the best Ms. Miller can come up with - as Jack Shafer said, she ought to hire some real attorneys and find out.
Finally, on the notion that the 1982 Intelligence Identities Protection Act will not be the basis for a successful prosecution, even if the courts continue to order Ms. Miller to testify - we say to the Times, welcome to the club; Jack Shafer was a member in Sept 2003 as well; James Taranto joined early, and promoted the membership often.
We will add this to our list of Frequently Unanswered Questions: Can the Times editors say "bogus"?
MORE: OK, so what might eager Dems and media truth seekers have done differently? Well, no one likes an "I told you so", but how do they feel about a "He told you so" - the Eerily Prescient Dr. Manhattan called for a Congressional, rather than criminal, investigation back in July 2003.
This should be resolved by Congress, not the courts, once that damage review is complete. Too many technicalities can turn a clear case of poor judgement into a failed criminal case.
STILL MORE: File under "Once, twice, three times a lady": who would have thought that libs could hate Judith Miller even more? She put the Times on the wrong side of the WMD debate; now she has put the Times on the other side of the Plame leak debate. What could be next? I have no idea, but if Typhoon Judy were to file and won a sexual harassment lawsuit, it would be a rare trifecta.
Now, let's hear from some attorneys: Beldar himself does not believe the Toensig/Sanford argument will result in a quashed subpoena (and we love his title); the Baseball Crank has doubts about a successful prosecution under an alternative statute suggested by Mark Kleiman.
VERY INTERESTING: Mickey Kaus surprises himself and the rest of us by discovering that the Times is not really flip-flopping here - other than a Christmas holiday slip by the B-team, the Times has not been pounding the table and calling this leak a crime. Well, I am not going to flip-flop and let them off the hook - one cite is dispositive!
In addition, the NY Times has greatly oversimplified the legal issues in reporting on this story. I'll pick up one New Year's Eve cite by A-teamer Eric Lichtblau to illustrate - here is his summary:
Disclosing the identity of a covert C.I.A. officer is a felony under federal law.
I am not asking for a law casebook in a Times article, but that is a bit too simple - even adding the word "intentionally" would shine a light in the right direction.
In other developments, here is Zonitic with an Oct, 2003 entry noting the hurdles created by the 1982 Act; his post was picked up by Andrew Sullivan, so its light was not hidden under a bushel.