In which the Times plays with matches

Last year’s election coverage in the New York Times was dominated by a succession of bogus Bush administration scandals, including stories touted by Paul O’Neill, Richard Clarke, Dan Rather, and the Times’s own special late al-Qaqaagate hit. But the granddaddy of these bogus scandals was 2003′s “outing” of CIA official Valerie Plame in response to the dishonest New York Times op-ed column by Plame’s husband, Joseph Wilson.
In July 2003 Wilson published the infamous column on his CIA-sponsored trip to Niger investigating Saddam Hussein’s purported attempt to purchase “yellowcake” uranium ore. Columnist Robert Novak subsequently identified Wilson as the husband of CIA official Valerie Plame and as the person who had been instrumental in getting Wilson the Niger assigment. Congressional Democrats and their spokesmen among the editors of the New York Times demanded the appointment of an independent counsel to investigate and prosecute the administration officials who allegedly blew Plame’s cover to Novak, who reported it, and to several other journalists, who did not.
In its interesting “Prosecutor of the Times” editorial (subscription only) earlier this week, the Wall Street Journal quoted the New York Times in hot pursuit of the bogus Plame “outing” scandal:

After an egregiously long delay, Attorney General John Ashcroft finally did the right thing yesterday when he recused himself from the investigation into who gave the name of a CIA operative to the columnist Robert Novak. Mr. Ashcroft turned the inquiry over to his deputy, who quickly appointed a special counsel.”

The Times editorial from which the Journal quoted was published in December 2003. As the Journal editorial noted, by July 2004 both a British and a U.S. Senate Intelligence Committee probe found that the White House had been accurate in describing available intelligence and that Wilson was the one who hadn’t told the truth on the subject in issue.
While the Times was peddling the bogus Plame “outing” scandal as involving a violation of federal law by administration officials, cooler heads at the time noted the likely inapplicability of the most frequently cited federal law (the Intelligence Identities Protection Act). Among these cooler heads were Slate’s Jack Shafer in October 2003 (“Stop the investigation!”), the pseudonymous Edward Boyd of Zonitics in October 2003 (click here and here), and Glenn Reynolds of Instapundit in early December 2003 (click here).
According to the New York Times in December 2003, John Ashcroft’s appointment of an independent counsel to investigate the adminstration was overdue. Indeed, it was something like an emergency. The Times failed to note at the time, however, that the Times itself was in possession of evidence relevant to the identification of the alleged lawbreakers. And of course the Times has refused to turn the evidence over in response to the subpoenas issued to it by the independent counsel whose appointment it demanded.
Times reporter Judith Miller refused to comply with the grand jury subpoena compelling testimonial and documentary evidence with respect to her contacts regarding Plame with a specified government official. The D.C. federal district court held Miller to be in contempt of court, and on February 15 the United States Court of Appeals for the D.C. Circuit affirmed the contempt order in a unanimous three-judge decision (click here). The D.C. Circuit quotes the Supreme Court’s 1972 Branzburg opinion setting forth the applicable law: “[I]t is obvious that agreements to conceal information relevant to the commission of crime have very little to recommend them from the standpoint of public policy” and “the right to withhold news is not equivalent to a First Amendment exemption from an ordinary duty of all other citizens to furnish relevant information to a grand jury performing an important public function.”
The independent counsel also subpoenaed the New York Times itself for Miller’s phone records, and the Times itself also refused to comply. Last week New York federal district court judge Robert Sweet refused to enforce the subpoena and find the Times in contempt (click here for Adam Liptak’s Times story on the ruling; I have not been able to find Sweet’s opinion on the Internet). Judge Sweet himself acknowledges that his decision cannot be reconciled with the D.C. Circuit’s.
Yesterday the New York Times celebrated Judge Sweet’s ruling in its editorial “A key victory for press freedom.” For my present purposes, here’s the key paragraph:

[A]n even more basic issue [than the First Amendment 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 [D.C. Circuit Court] decision evaluating the evidence.

The Times has therefore now taken notice of the “more basic issue” than the legal investigation of Plamegate for which it called in 2003 — the investigation may be an utterly misguided venture. The editorial’s description of discussion of the “more basic issue” as “recent” places the editorial’s accuracy on par with the usual contents of the Times editorial pages.
I don’t think it’s premature to conclude that the purported scandal that, according to the Times, required an independent counsel in 2003 was bogus or that there is a real scandal (or two) here. The real scandal, however, is one of which the New York Times, rather than the Bush administration, is the perpetrator.
UPDATE: The invaluable Tom Maguire of Just One Minute writes:

Nice summary of the original phony scandal. Worth noting – in a bit of a non-coincidence, the Sweet ruling in favor of Ms. Miller is in a *different* case from the Plame leak.
Fitzgerald was working an investigation into a leak on Islamic charities which involved Judith Miller; when the Plame leak case came along, he got it, partly because the press leak issues overlapped, and he was up to speed on them. Ms. Miller got involved in both cases because of the beat she covers.
However, as best I can guess, there is no reason for the rulings to be reconciled – from the quick press account I saw, the two courts applied the same standard, and Sweet concluded that the evidence sought from Miller’s phone records could be obtained elsewhere. (The DC Court decided, presumably correctly, that her testimony could not be replicated from other sources.) Anyway, that distinction does not come through in your post.
CAVEAT – I am going from memory here, and would score the probability of my being right at above 90%.
And a final teardrop – to mention right wing bloggers covering the early days of the Plame Game and leaving me out makes me deeply depressed – I probably have over 100 posts on it. Well, googling my site produces over 600 hits, but that could be high.
This one from early October held up well, and makes the key point about absence of intent in a potential prosecution (click here): “Is this exoneration? Legally, it might be – the law seems to require intent on the part of the leaker, which would be absent here. It also requires that the government be attempting to conceal the agent’s identity. The CIA spokesman may have compounded an error, but his ineffectiveness provides a hurdle for the prosecution.”
Hmm, here is a Sept 29 2003 discussion of the significance of her covert status, and the intent of the leakers – shot through with typos, no links to anyone – I picked a bad day to blog while snorting crystal meth.

If it’s any consolation, I join Tom in his depression; my apologies to Tom and our readers for missing his contribution to the analysis of the wayward Plamegate investigation.
UPDATE 2: Tom Maguire also writes to provide this link to a summary of the Plame and Islamic charities investigations.

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