Novak

by hilzoy

Ever since the Plame scandal began, I have refused to watch any TV show on which Robert Novak appears, on the grounds that outing a CIA agent is one of those things that ought to make normal, decent people shun someone, and since I'm unlikely to have the opportunity to administer the Cut Direct in person, this is the best I can do. That was when I knew only that he had published her name, which (I thought) showed at least a reckless indifference to the question of her undercover status. But now that I've read today's Washington Post, I think that if I met him, I'd have to try waving garlic and holy water at him, or perhaps recite the rite of exorcism:

"Harlow, the former CIA spokesman, said in an interview yesterday that he testified last year before a grand jury about conversations he had with Novak at least three days before the column was published. He said he warned Novak, in the strongest terms he was permitted to use without revealing classified information, that Wilson's wife had not authorized the mission and that if he did write about it, her name should not be revealed.

Harlow said that after Novak's call, he checked Plame's status and confirmed that she was an undercover operative. He said he called Novak back to repeat that the story Novak had related to him was wrong and that Plame's name should not be used. But he did not tell Novak directly that she was undercover because that was classified."

I think I'm going to have to stop watching CNN lest I drive a hemlock stake through the TV in a fit of outrage.

Comments

[felixrayman]

What's "TV"?

[xanax]

The "cut direct?" hilzoy? Reviewing her Emily Post? Must be a slow morning at Johns Hopkins (or plans are already afoot to guide "Bug" in the gentlemanly art of hat-lifting).

[hilzoy]

Turkey Vulture, of course.

[Tim]

Well, there's your trouble. According to Wikipedia, only ash or hawthorn stakes work.

[hilzoy]

xanax: Emily Post was just for people who didn't have the chance to learn the Cut Direct from their exceptionally WASPy grandmothers. Luckily, I only use it on very rare occasions.

[bernard Yomtov]

Harlow said that after Novak's call, he checked Plame's status and confirmed that she was an undercover operative.

What? Not possible. Didn't he know she was driving back and forth to Langley evey day?

[bob mcmanus]

I think I have really lost something by turning my television news completely off. I was unable to get in the right mood on 7/7, or at least unable to share a mood. There is a purpose to such shared experiences.

But I find all of it indigestible.

[Bruce Baugh]

I'm with Bob: it's been literally years since I voluntarily watched TV news for coverage of anything at all except the weather, the X-Plane flights, and maybe a few specific other items. Going without it for a while and then watching it is a useful step in realizing just how utterly false the punditocracy's conceptual framework is. It has the carefree spontaneity of noh, combined with the cautious humility of Scientology, and the somber gravitas of any occasion in which large numbers of people chant "hey hey, ho ho".

[cleek]

no TV news here, either. ... except a little bit of CNN at lunch time because it's on in the breakroom. but, luckily they show CNN's inernational feed at lunch, so i don't get solid pervert-of-the-week coverage, but actual international news - with cricket scores on the ticker.

even that, though, is shallow, compared to what i've already learned before lunch from blogs and WWW news sites.

[Paul]

I rarely watch TV news. It isn't entertaining and it's rarely informative. So what's the point? I'd sooner watch a cooking show. If anyone at CNN had an ounce of journalistic integrity, Novak would've long since taken a leave of absence, or been sent off to do heart-warming human interest stories from Alaska.

[hilzoy]

I watch it during lunch, when I'm home, and when nothing interesting is on CSPAN. Or rather, I did. No more.

[Slartibartfast]

I had envisioned "Cut Direct" as something that might be accomplished using a properly constructed sword cane; the reality was a little disappointing.

[dmbeaster]

Not that you need more reason to loath Novacula (or Robert No-Facts -- take your pick), but after outing Plame, he made certain that the CIA front company was also outed.

From a Pincus WaPo article entitled "Leak of Agent's Name Causes Exposure of CIA Front Firm"

The name of the CIA front company was broadcast yesterday by Novak, the syndicated journalist who originally identified Plame. Novak, highlighting Wilson's ties to Democrats, said on CNN that Wilson's "wife, the CIA employee, gave $1,000 to Gore and she listed herself as an employee of Brewster-Jennings & Associates."

"There is no such firm, I'm convinced," he continued. "CIA people are not supposed to list themselves with fictitious firms if they're under a deep cover -- they're supposed to be real firms, or so I'm told. Sort of adds to the little mystery."

In fact, it appears the firm did exist, at least on paper. The Dun & Bradstreet database of company names lists a firm that is called both Brewster Jennings & Associates and Jennings Brewster & Associates.

The front company was probably toast anyway once Novak outed Plame, but he made certain of it.

[Slartibartfast]

Ouch. Wonder how many people that compromised?

[Paul]

The "cut direct" always reminds me of chapter nine of A Moveable Feast where Ford Maddox Ford cuts dead Hillaire Belloc, who is really Aleister Crowley. If you think about it, Novak's kind of the son Belloc and Crowley might've had.

[Slartibartfast]

Say I'm Harlow. Say that a reporter calls me up and mentions some information that I know to be classified, in reference to an article he'll soon be publishing. What do I do? So far, I've advised Novak that he shouldn't publish this, but I know that Plame's already been compromised because Novak knows. If it were me, the fjord hobbyist, I report it upstairs, pronto. Possibly I also report it to the FBI, because a major security violation is in the offing. What I absolutely don't do is trust that my words are going to deter Novak from writing anything.

So I'm a little curious about what actions were taken to prepare for the unveiling of Valerie Plame's identity, or to prevent that from happening.

[cleek]

...what actions were taken to prepare for the unveiling of Valerie Plame's identity,..

yeah, good question.

i hope the answer is something like "it went up the chain of command till it hit the WH and they said 'nah, never mind' "

[bernard Yomtov]

So I'm a little curious about what actions were taken to prepare for the unveiling of Valerie Plame's identity, or to prevent that from happening.

At that point nothing was going to prevent it from happening if Novak wouldn't go along with the request.

As for preparation, I suppose the thing to do is get word to anyone who might be endangered, get them to safety if needed and possible, etc. I assume someone did that, but my knowledge of this sort of thing comes from novels and movies and the like, so who knows?

[Tad Brennan]

on the "Cut Direct"--I think Post had Shakespeare in mind:

TOUCHSTONE
I did dislike the
cut of a certain courtier's beard: he sent me word,
if I said his beard was not cut well, he was in the
mind it was: this is called the Retort Courteous.
If I sent him word again 'it was not well cut,' he
would send me word, he cut it to please himself:
this is called the Quip Modest. If again 'it was
not well cut,' he disabled my judgment: this is
called the Reply Churlish. If again 'it was not
well cut,' he would answer, I spake not true: this
is called the Reproof Valiant. If again 'it was not
well cut,' he would say I lied: this is called the
Counter-cheque Quarrelsome: and so to the Lie
Circumstantial and the Lie Direct.
......
All
these you may avoid but the Lie Direct; and you may
avoid that too, with an If. I knew when seven
justices could not take up a quarrel, but when the
parties were met themselves, one of them thought but
of an If, as, 'If you said so, then I said so;' and
they shook hands and swore brothers. Your If is the
only peacemaker; much virtue in If.

(As you like it V.iv).

And by the way--I think Post modeled her "cut direct" on the "Lie Direct"--the fact that Touchstone offers a hypothetical involving the cut of someone's beard is not part of my case.

[Slartibartfast]

At that point nothing was going to prevent it from happening if Novak wouldn't go along with the request.

I'm not sure that I agree with this. For instance, they could have agreed to advise Novak as to Plame's status, at which point (this part could be dicey, I admit) it'd be a criminal act for him to print it. I'm not even sure if this is a possibility, but it'd be damage control to consider.

[bernard Yomtov]

Bernie - oops, I mean Tad,

A great speech from a great play.

[Slartibartfast]

Tad, what's an "lf"?

[Tad Brennan]

yes, another great moment from Bernie Shakespeare.

[Slartibartfast]

Damned font. "if"

[Tad Brennan]

Slartibartfast--

I don't have any special insight, and you've got as much evidence in front of you as I have.

By referring to an "if", I suppose Touchstone is referring back to the earlier sentence "if you said so, then I said so". And I assume the "so's" are meta-linguistic variables ranging over propositions or statements or maybe only parts of them, e.g. "I judge by the Venetian fashion" or "by the Venetian fashion".

So, you said my beard was not well cut, and I disabled your judgement (i.e., said you were not an able judge). But, if you now say that you were judging by the Venetian fashion, then I'll now agree with you that it is *not* well cut by the Venetian fashion. This allows me to insist that my beard *is* well cut by Parisian standards, thus preserving the honor of my beard, while also allowing me to retract my Reply Churlish.

"If you said my beard was not well cut "by the Venetian fashion" [=so sub 1], then I said you were not an able judge "only of the Parisian mode" [=so sub 2]. There, you see? No quarrel after all!"

Anyhow, that's as much sense as I can make of it. Someone who knows something about Shakespeare, or the duello or Elizabethan syntax, may be able to shed more light.

[Slartibartfast]

Um...Tad, I hate to say this after you've explained all that, but this font makes "If" look a great deal like "lf".

[Gromit]

Out, out, damned font! (Sorry, couldn't resist.)

Slartibartfast: I'm not sure that I agree with this. For instance, they could have agreed to advise Novak as to Plame's status, at which point (this part could be dicey, I admit) it'd be a criminal act for him to print it. I'm not even sure if this is a possibility, but it'd be damage control to consider.

At first I worried that the "actions" you were talking about might involve piano wire or poison darts. I doubt extending security clearance to Robert Novak would be feasible or even sane. Why would the CIA have thought they could trust Novak with this information? And why would Novak, who makes his living in no small part from leaked information, have agreed to accept this sort of legal liability? Nothing about this scenario makes sense.

[bernard Yomtov]

I think Touchstone's point is that the "if" gave everyone an excuse to de-escalate. X calls Y a jackass and it goes up from there. But then X says "I only think you're a jackass if you said thus and so. Y has a graceful way out and the whole quarrel unwinds.

According to Harold Bloom this also has something to do with defending the reputation of Christopher "Bernie" Marlowe and "poetical feigning," but I confess that I don't follow what he is saying.

[KCinDC]

Now, now, no more discussion of font problems or we may be back to the endless discussion of Al and his carping about gulags.

[KCinDC]

piano wire or poison darts

Liddy's still available for the job, isn't he? I'm sure he's still disappointed he never got to kill Jack Anderson. I hadn't realized that was about outing a CIA operative (PDF warning):

Now Liddy had always said that he was told that the reason that he should kill me was because I had compromised a source, and the source had been brutally murdered and tortured. That I'd compromised a source. Well, I hadn't ever done that. This was supposed to be a CIA -- I think, I was told not long ago that on his show he repeated that.

Of course the difference is in this case it's the crooked president who's behind the outing (and the earlier journalist probably wasn't involved).

[NeoDude]

Jeez, don't any of you folks, at least, watch Six Feet Under or The Daily Show...no TV?

[CaseyL]

Nope. No TV. I go entire weeks without turning it on at all. I had my cable service cut back to bare minimum; I'm not sure I even get the Comedy or SciFi channels anymore.

It's just too stupid. The news, the vast majority of the shows... as I've said before, it's like watching indoctrination programs for children.

There are exceptions, yes; but not enough of them for me to justify a $45+/month cable fee.

I get the news from newspapers, NPR, and the web.

[Slartibartfast]

I doubt extending security clearance to Robert Novak would be feasible or even sane.

They wouldn't have to extend him any sort of general clearance, just brief him on that one thing. And once briefed, he can't divulge. This is actually the way it works: people who are authorized to know classified information are prosecutable under the law; those who are unauthorized aren't, for the most part. The beauty of this is that Novak wouldn't actually be privy to any other bit of classified information other than Plame's identity, and he already knew that.

Why would the CIA have thought they could trust Novak with this information?

Because he already had it and was about to expose it to the public. It's not a matter of trustworthiness, it's a matter of recourse. Brief him on it, and they've got recourse.

And why would Novak, who makes his living in no small part from leaked information, have agreed to accept this sort of legal liability?

I'm not sure he has a choice. It's not a matter of agreeing or not agreeing. This is the dicey part of the whole thing, granted, but if you're a reporter and the FBI, for example, visits you with a friend from the CIA having some information that they say you need to have, you've been briefed, with witnesses. The NDA (SF 312, IIRC) that's been floating around the Internet of late is sufficient grounds for prosecution, but I don't think it's necessary. Just as importantly, though, the authorities could then publicly state that Novak (and they could even go all the way up to Eason Jordan with this) had been explicitly advised as to classification and had chosen to go to press regardless.

[Gromit]

Has Novak signed such an NDA? Is there any reason to believe he ever would? And if he was not bound by any prior agreements, and if he was not committing an act that falls under the legal definition of espionage, how could he be the one who is legally liable when cleared individuals "briefed" him on classified information (i.e. leaked it to him)?

Respectfully, it sounds like you are just muddying the waters here.

[Slartibartfast]

No, Gromit, I'm suggesting that none of the applicable statutes require the NDA. Which, you know, they don't. So his willingness to sign is, I believe, immaterial.

[Jesurgislac]

Slarti: Just as importantly, though, the authorities could then publicly state that Novak (and they could even go all the way up to Eason Jordan with this) had been explicitly advised as to classification and had chosen to go to press regardless.

Novak was explicitly advised as to classification, and he chose to go to press regardless.

Your point?

[kenB]

Novak was explicitly advised as to classification, and he chose to go to press regardless.

Jes, refer to original post:

"He said he called Novak back to repeat that the story Novak had related to him was wrong and that Plame's name should not be used. But he did not tell Novak directly that she was undercover because that was classified."

[Slartibartfast]

Novak was explicitly advised as to classification, and he chose to go to press regardless.

Wrong factoid, J.

[Jesurgislac]

kenB: "He said he called Novak back to repeat that the story Novak had related to him was wrong and that Plame's name should not be used. But he did not tell Novak directly that she was undercover because that was classified."

I know of no one who seriously claims that, having been told by the CIA that Plame's name should not be used, Novak must have concluded "She's obviously not covert - no harm done if I reveal she works for the CIA after the CIA have explicitly asked me not to do so".

Slarti's excuse works if we assume Novak is too stupid to think for himself.

But then, I'm not too worried about finding excuses for Novak.

The person (people) to blame is (are) the "senior administration officials" who leaked Plame's identity to Novak. To argue that Novak ought to have been made to sign a NDA making it illegal for him to then publish Plame's identity is bolting the barn door and leaving the windows open.

At the time this happened, six other reporters were contacted by "senior administration officials" who tried to leak Plame's identity. We don't know who those reporters are: all we know is that they have more integrity than Novak. They didn't leak Plame's identity. Had the "senior administration officials" also failed with Novak, they would (presumably) have continued until they found someone with less integrity than Novak... and I presume they would, eventually, have found that person. (Hmmm... Jeff Gannon?)

You can't stop a roof from leaking by putting a bucket under the biggest hole.

[Slartibartfast]

Slarti's excuse works if we assume Novak is too stupid to think for himself.

Actually, my "excuse" works regardless of what one assumes about Novak. Try reading and thinking, instead of the usual skimming and jumping to (in this case, completely incorrect) conclusions.

[Gromit]

Which statutes are you referring to, Slartibartfast?

[Jesurgislac]

Slarti: Actually, my "excuse" works regardless of what one assumes about Novak.

No, it really doesn't.

Unless you merely mean that he had a journalist's right to write about anything he liked - and so he does. And he did. Who's arguing about that?

If you think the CIA should have stopped him by briefing him on Plame's identity, then threatening to prosecute him if he published, why would Novak have cooperated with this? He knew he shouldn't use Plame's name*: he wanted to go ahead and reveal it: why should he have cooperated with any method the CIA were attempting to use to block the story?

*Unless, of course, he was too stupid to think for himself what the CIA's telling him not to use her name might mean.

[Slartibartfast]

Title 18, Section 798: Disclosure of Classified Information. And, of course, the aforementioned Title VI, Section 601, also known as the Intelligence Identities Protection Act of 1982, neither of which make the barest mention of the NDA we're talking about.

[Slartibartfast]

Unless you merely mean that he had a journalist's right to write about anything he liked - and so he does. And he did. Who's arguing about that?

Go read the applicable statutes and point out to me where it says that it's ok to compromise classified information, if you're a journalist.

[Gromit]

Slartibartfast, from my reading, Title 18, Section 798 only applies to classified information pertaining to communication intelligence, which I read as information on cryptography and communications systems. Am I misreading the statute?

And the Intelligence Identities Protection Act of 1982 only applies to individuals who were authorized to have access to classified information in the first place, doesn't it? Section (c) is a bit unclear, but if I'm right, this brings us back to the question of the process by which someone can be authorized to view classified information.

[Slartibartfast]

Am I misreading the statute?

No, apparently I am. Title 18 Section 793 has some things that appear to apply, though, even for someone having unauthorized access. Provided they know it's classified and have been briefed, which guarantees that they can't claim ignorance on the damage factor.

And the Intelligence Identities Protection Act of 1982 only applies to individuals who were authorized to have access to classified information in the first place, doesn't it?

Which is why I say, brief him. He's then authorized, and constrained from disclosing it. I can see, though, that there's a communication problem here, so: by brief him, I mean officially advise him as to classification; authorize him to possess that information. Sounds ass-backwards at first, granted, but it's actually effective damage control. How is this done? The classification authority (in this case, I'd expect that's the DCI) simply would grant Novak need to know on that particular item of data, and (in this case, this being particularly sensitive information) either brief him in person or have one of his deputies do so.

The US code on this more WSOGMM than a cohesive set of laws.

[Slartibartfast]

Oh, and I'd bring the FBI into it, since the law-enforcement aspect of this would be their jurisdiction.

[Jesurgislac]

Slarti: Go read the applicable statutes and point out to me where it says that it's ok to compromise classified information, if you're a journalist.

Certainly, if you'll link to the applicable statutes. My understanding is that if you are not employed by the government (and Novak is not) and you come across classified information without having to commit a crime to do it (and as far as I know Novak didn't) then it is not a crime to publish classified information. And Novak did.

That's not to say that I think it's "ok": but given the half-dozen other reporters contacted, it seems clear that the "senior administration officials" were looking for a reporter who would think it was "ok". They (or he) found Novak.

Once Novak knew, he could only have been stopped from publishing the information if he were willing to cooperate with the CIA. Which, we know, he wasn't.

The issue for the CIA at that point seems to have been not to stop Novak (who was evidently unstoppable by any legal means, though in the UK his publication could have been served with a D notice - but even that has been less useful now people can routinely get news from outside the UK) but to focus on damage limitation.

[Jesurgislac]

Slarti: Which is why I say, brief him. He's then authorized, and constrained from disclosing it. I can see, though, that there's a communication problem here, so: by brief him, I mean officially advise him as to classification; authorize him to possess that information.

And again, Slarti, how do you propose that the CIA do this when Novak is - evidently - unwilling to cooperate?

[Slartibartfast]

And again, Slarti, how do you propose that the CIA do this when Novak is - evidently - unwilling to cooperate?

I've already said how; you have only to read.

Certainly, if you'll link to the applicable statutes.

Well, Gromit's linked to one. Feel free to check that one out. Here's another.

My understanding is that if you are not employed by the government (and Novak is not) and you come across classified information without having to commit a crime to do it (and as far as I know Novak didn't) then it is not a crime to publish classified information.

Well, your understanding isn't entirely accurate:

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it

then a bunch of penalties fall on that person. If Novak knows it's classified, he's toast, legally.

[Slartibartfast]

Now, this shouldn't be confused with reporters exposing information that was improperly classified, for instance: classified in order to hide improper government activities. I believe those are fair game because they're improperly classified to begin with. There's more US code that deals with that (constrains classifying authorities from doing as described), but I'm not going to look it up for you.

[Slartibartfast]

Once Novak knew, he could only have been stopped from publishing the information if he were willing to cooperate with the CIA. Which, we know, he wasn't.

No, once Novak knows it's classified, it's the FBI that he has to deal with. Again, this is all entirely hypothetical, but I'm a little shocked that the measures taken to protect Plame's cover were so apparently nonexistent. It's entirely possible, though, that this is how the CIA routinely deals with threats of blown cover. Or it's possible that they did something more, but then the mystery of Novak's continued freedom remains.

[LizardBreath]

While I'm not an expert in the relevant law, Slart, I don't think your theory works. Are you saying that while Novak could be subject to no liability for revealing classified information that he was unauthorized to know, he could be subject to liability if he were authorized to know it, so the solution is to authorize him and tell it to him again?

I don't think you can give someone a security clearance against their will and as they resist (which presumably Novak would be doing), and I don't think a court would buy such a clearance as sufficient to impose liability. If they could do that to Novak, they could do it to any reporter who received a leak of classified material.

[Jesurgislac]

I've already said how; you have only to read.

Where have you said how? *re-reads thread* Nope, no clue. How? How do you propose to force Novak, against his will, to cooperate with the CIA? (I admit I can think of some extralegal means, such as kidnapping, hostage-taking, and intimidation, and torture, all of which have been practiced by the CIA, but I assume that you are not advocating those.)

[Slartibartfast]

I don't think you can give someone a security clearance against their will

I know of nothing that says you can't. But let's back off the clearance for a second, and have them simply advise Novak that that information is classified, and he not only cannot divulge it, he can't even hint around it. He's now aware that this information is classified and also has been advised that bringing it to print will cause damage to this country, and so liable under the paragraph I quoted above. This part is a little shaky, admittedly, because it all depends on what "lawfully" means in this context. If it means that he came by it in a manner that he cannot be prosecuted for (i.e. an unauthorized disclosure), then it clearly applies. If, on the other hand, lawfully implies "authorized" in this context, then it clearly doesn't.

If they could do that to Novak, they could do it to any reporter who received a leak of classified material.

If they knew about it before it went to print, sure. If the reporter knew it was classified, though, I think the reporter in question has no defense. Information that's classified by definition is something that if divulged would be damaging to national security.

[Jesurgislac]

But let's back off the clearance for a second, and have them simply advise Novak that that information is classified, and he not only cannot divulge it, he can't even hint around it.

Can you link to the statute that gives US security bodies the right to do that? I know of the one in the UK - I linked to the D-Notice site. But I am not aware of the equivalent statute in the US that empowers government security agencies to prevent journalists - or indeed anyone who doesn't work for the government - reporting publicly any information they acquired legally. (In fact, I was under the impression that you didn't have such a statute: that the First Amendment prevented a system like British D-Notices.)

[LizardBreath]

Don't you have to agree to something -- sign a form? to get a security clearance? And in any case, the briefing is irrelevant under the statute you linked; if you look down to (e), it applies in the same terms to someone with unauthorized access to the information. If your reading of the law is correct, any knowing publication of classified material by anyone, authorized or not, would be unlawful. In practice, this doesn't seem to be the case.

I really don't think you can tar the CIA as inexcusably careless by not coming up with your idea, without some better understanding of the law to indicate that it would be effective.

[Slartibartfast]

How do you propose to force Novak, against his will, to cooperate with the CIA?

The normal way: drop by his office, drop by his house, or, hey, invite him over to CIA headquarters for some background information. What reporter is going to turn that down? What's he going to do, stick his fingers in his ears?

[Gromit]

Slartibartfast: If it means that he came by it in a manner that he cannot be prosecuted for (i.e. an unauthorized disclosure), then it clearly applies. If, on the other hand, lawfully implies "authorized" in this context, then it clearly doesn't.

I'm handicapped by a lack of legal training, but I interpret "lawfully" to mean that not only must the actions of the recipient be legal, but anyone else involved must also be in the clear. If I'm right, this would rule out an unauthorized disclosure.

[LizardBreath]

Also, the penalty for violating the statute you linked seems to be only (subsection (h)) forfeiture of any payment received from a foreign government for the information -- not a significant threat to Novak.

[LizardBreath]

Gromit -- see subsection (e), applying to unauthorized possession of the info.

[Jesurgislac]

Slarti: The normal way: drop by his office, drop by his house, or, hey, invite him over to CIA headquarters for some background information. What reporter is going to turn that down? What's he going to do, stick his fingers in his ears?

He's going to think how any court would react to the CIA claiming that Novak had no right to publish information that he'd been "briefed" on, when the "briefing" had taken place against Novak's will. Hmm... looks very like entrapment to me.

[Slartibartfast]

Don't you have to agree to something -- sign a form? to get a security clearance?

The NDA is a prerequisite for being granted access to classified information, but I don't see anything in the various statutes that make the NDA a necessary condition for liability. Given that Novak's access to the information was not authorized, a nondisclosure agreement required for authorized access in advance would seem to be inapplicable.

If your reading of the law is correct, any knowing publication of classified material by anyone, authorized or not, would be unlawful. In practice, this doesn't seem to be the case.

A few examples might be instructional.

[Gromit]

Subsection (e) doesn't appear to apply to verbal communication, LB. The materials listed all sound like physical media. Maybe I'm being overly literal?

Maybe it's like being served with a summons? If the CIA can just get a post-it into Novak's hand, he's liable for whatever classified information is written on it? Still not a very good strategy for the agents involved, since THEY become liable for divulging classified information.

[Slartibartfast]

Hmm... looks very like entrapment to me.

I'd read that again if I were you, and more carefully. In what sense is Novak being briefed anything like incitement to commit a crime?

[LizardBreath]

Gromit:

The last thing listed is just 'information relating to the national defense.'

Slart:

I'm lazy, but classified stuff gets leaked all the time, and I've never heard of a journalist being prosecuted for it. The Pentagon Papers, Geraldo Rivera and troop movements in Iraq - have you ever heard of such a prosecution? I think the key to what's wrong with your theory is subsection (h) -- if the penalty for violating this statute is only disgorgement of payments recieved from a foreign government or political faction, it's got no teeth against journalists.

[Slartibartfast]

Subsection (e) doesn't appear to apply to verbal communication, LB. The materials listed all sound like physical media. Maybe I'm being overly literal?

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or

If the CIA can just get a post-it into Novak's hand, he's liable for whatever classified information is written on it?

Not if he doesn't know it's classified. In that case, as you pointed out, the agents divulging the information are liable. And if they're not found out, nobody goes to jail.

[LizardBreath]

Any comment w/r/t to the penalty for violation of the statute?

[Jesurgislac]

In what sense is Novak being briefed anything like incitement to commit a crime?

Novak intends to publish Plame's name.

You think that the CIA should visit his home/office, or summon him to their offices, without telling him "We intend to officially brief you on Plame in order to prevent you from publishing her identity" - since if they did, presumably all he would have to do would be to avoid them/refuse the invitation. Then they carry out an "official briefing" without warning and tell him, now if you publish you're committing a crime for which we can sue you.

Still sounds remarkably like entrapment to me, Slarti.

Also, sounds remarkably like the plot of one of those joke spy movies where the hero is played by an actor who used to be a solider in M*A*S*H.

Actually, what it really sounds like is theatre of the utterly absurd. "We've told you what you knew already, but now we've told you you can't tell what we told you and you can't tell anyone that we've told you! And you can't tell anyone why you can't tell anyone!"

If Novak had already discussed this story with his editor, would the CIA then brief his editor?

And given that the "senior administration officials" would be, under your scheme, free to continue finding reporters and leaking to them without penalty, what would be the point? Do you envisage a trail of reporters who have received involuntary CIA-briefings? How long a trail? How many reporters ought to be entrapped by the CIA into involuntary security briefings?

Wouldn't it be better for the long-term health of national security, to find and prosecute the "senior administration officials", who are the ones who should not have leaked to Novak in the first place?

Which does, in fact, appear to be what they're doing...

No, never mind. I know you have a sense of humor, Slarti, but it's at times like these that I wonder if you switch it off to be able to support the Bush administration through thick and thin. (I thought you'd decided to go Independent? What are you doing in the silliest part of the Bush admin camp?)

[Slartibartfast]

Geraldo Rivera and troop movements in Iraq

Do you recall what happened after he did that? Pretty mild, sure, but it's not as if there were no consequences. As for the Pentagon Papers, the court opined pretty much along the lines of: I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable harm to our Nation, or its people. Which is nearly the opposite of the argument that's being discussed regarding Valerie Plame's cover. Still, there were holes in US statute regarding classified information back in 1971, weren't there?

[LizardBreath]

The Pentagon Papers case was about prior restarint, not penalties after the fact, and Rivera wasn't prosecuted. While I can't give you chapter and verse, it's common knowledge that you can't prosecute a journalist for publishing classified information if they haven't done anything else wrong.

Again, have you noticed that the penalty for violation of this statute is just disgorgement of any payment received from the information from a foreign government? If I'm reading it correctly, it hasn't got any teeth.

I hate to shout, but it seems possible that that's why this statute doesn't apply.

[Slartibartfast]

Then they carry out an "official briefing" without warning and tell him, now if you publish you're committing a crime for which we can sue you.

And there's where it all falls apart. No, I'm thinking what they tell him at that point is: if you now publish, you'll be in violation of the following US statutes.

If Novak had already discussed this story with his editor, would the CIA then brief his editor?

Absolutely. Actually, I'd think they'd also have a little conversation with his publisher as well.

And given that the "senior administration officials" would be, under your scheme, free to continue finding reporters and leaking to them without penalty, what would be the point?

For starters, getting a jump on identifying the leak. You can only do what you can, but you do what you can.

Wouldn't it be better for the long-term health of national security, to find and prosecute the "senior administration officials", who are the ones who should not have leaked to Novak in the first place?

Absolutely, after you determine who they are.

No, never mind. I know you have a sense of humor, Slarti, but it's at times like these that I wonder if you switch it off to be able to support the Bush administration through thick and thin.

It's times like these that I wonder how you can avoid seeing what's plain as day, as opposed to wilfully viewing everything I say through Slarti-is-a-Bush-sycophant-colored glasses.

[Slartibartfast]

Again, have you noticed that the penalty for violation of this statute is just disgorgement of any payment received from the information from a foreign government?

Which part of it do you think says that?

[Slartibartfast]

Crap. I see what you're talking about. Ok, it's clear that this particular one is not the droid we're looking for.

[Jesurgislac]

No, I'm thinking what they tell him at that point is: if you now publish, you'll be in violation of the following US statutes.

And then, Novak's story goes from being one paragraph in a column to being a huge headline story.

Given that - as LizardBreath points out - the statutes have no teeth, and given that I doubt any court would regard this involuntary "briefing" as something Novak was legally required to keep silent about, the CIA would have created a really terrific story.

I suspect that - lacking my evil sense of humor, which does find this all very funny - they probably figured that since they had no legal way of stopping Novak (and they didn't, your caper-movie plans notwithstanding), damage control was their best option.

as opposed to wilfully viewing everything I say through Slarti-is-a-Bush-sycophant-colored glasses.

The Bush-sycophant crowd are merrily blaming the CIA: you're joining them.

[Slartibartfast]

And then, Novak's story goes from being one paragraph in a column to being a huge headline story.

And then he goes to jail.

Given that - as LizardBreath points out - the statutes have no teeth

Actually, LB has pointed out that ONE statute has no teeth.

The Bush-sycophant crowd are merrily blaming the CIA: you're joining them.

Take the glasses off, if you can. Or are those implants? Wondering aloud how Novak might have been constrained from going to press with this does not equate to blaming the CIA. For me to blame the CIA would, for me at least (I know you have different standards, but don't expect mine to be the same), would require that I know what happened.

[LizardBreath]

Like I said at 11:32, subsection (h).

Here's a link to an article that looks reputable (although I don't know the organization), confirming that there is no statute generally rendering it illegal for journalists to publish classified information (it mentions the IIPA and the SIGINT statute you linked above as exceptions.)

[LizardBreath]

Crosspost -- I see you found it.

[Slartibartfast]

Actually, LB has pointed out that ONE statute has no teeth.

Correction: isn't toothless, just doesn't have any teeth we're interested in, here.

[Jesurgislac]

And then he goes to jail.

For reporting that the CIA summoned him to what they said was going to be "more background information on a story" but turned out to be an involuntary briefing on classified information that Novak already had, in order to prevent Novak from publishing a story? (Assuming, not yet proven by any means, that this would prevent Novak or his editor from doing so.)

Please cite me the statute that says a journalist can go to jail for reporting that they were summoned by the CIA so that the CIA could kill a story.

Novak doesn't even have to say what story he means: as MI6 discovered over the infamous list of agents D-notice, once you go to enough trouble to "kill a story" it gives the story vastly more publicity, very fast.

[Slartibartfast]

For reporting that the CIA summoned him to what they said was going to be "more background information on a story" but turned out to be an involuntary briefing on classified information that Novak already had, in order to prevent Novak from publishing a story?

Ah, that's what you meant. If only that's what you had said...

In that event, though, he probably wouldn't go to jail, but the story he did publish wouldn't have that damaging-to-national-security aspect that the one he'd planned to publish had.

Novak doesn't even have to say what story he means: as MI6 discovered over the infamous list of agents D-notice, once you go to enough trouble to "kill a story" it gives the story vastly more publicity, very fast.

If I have to point out in what crucial way one of these things is not like the other, I give up.

[LizardBreath]

The problem is, Slart, the whole basis of your idea is fantasy. There simply isn't law in the US that makes it illegal for a journalist to publish classified information generally -- we haven't got an equivalent of the Official Secrets Act.

Now, I know this a layperson rather than through any legal expertise, but look at the article I linked, google around, look for any case where a journalist was prosecuted for revealing classified information. While I've been wrong before, and will be again, I'm pretty sure that no such case exists. In the absence of such law, the CIA could not have restrained Novak through threat of prosecution.

[Jesurgislac]

The problem is, Slart, the whole basis of your idea is fantasy.

Yes, but you have to admit, it would make a great caper movie.

[LizardBreath]

I've never liked capers. Like Nora Ephron says, any thing that tastes good with capers in it, probably tastes better without them.

[Slartibartfast]

I'm reading it now, LB, and it appears to be an informed opinion that the current law is insufficient to prevent this sort of thing. I'd give more credit to a guy whose experience runs, of necessity, with the applicable laws than to a lawyer who's not as familiar with these particular laws. Bruce seems to be highly credible.

So, I'm beginning to suspect that my premise was incorrect, and that all the CIA could have done is brace for impact. Although it does perhaps make events discussed over here more relevant. What Bruce is arguing for is recourse in cases like this.

[Slartibartfast]

Like Nora Ephron says, any thing that tastes good with capers in it, probably tastes better without them.

Except smoked salmon.

[SomeCallMeTim]

Quoting Ephron makes your credibility suspect, LB.

[Jesurgislac]

LizardB: Like Nora Ephron says, any thing that tastes good with capers in it, probably tastes better without them.

Except pizza. Good flatbread pizza with some really good spicy tomato sauce, and decent cheese, and, mmmm, garlic, and then salty capers scattered over it for bite. Yum.

Caper movies are fun. Slarti's idea would make a great one. Need to work in a car chase down some steps and a suitcase falling open and scattering amusing lingerie, though.

[LizardBreath]

Does it help that it's a good novel, rather than a Meg Ryan movie? The line's from Heartburn. (I suppose it might have made it into the screenplay, but I never saw the movie.)

[LizardBreath]

scattering amusing lingerie, though.

I have traumatic memories of being burgled, and having more of a conversation than I really wanted to have with the police about why my roommate had so much interesting underwear.

I'm sure capers have their points -- I'm just not much on little pickled things generally. (Caper movies, though, I do agree with you about.)

[Slartibartfast]

Need to work in a car chase down some steps and a suitcase falling open and scattering amusing lingerie, though.

Amusing in the humorous sense, or amusing in the distracting, diverting sense?

[Slartibartfast]

Um, not stating a preference, mind you, even a mix might be...amusing.

[CaseyL]

I love my lingerie. That's doesn't mean I want raconteur bras or panties that make devastatingly droll social critiques.

[KCinDC]

Also pasta puttanesca.