Special Analysis Report: The Valerie Plame Scandal, Part II

In Part I of this Special Analysis Report, the case was made that the Bush Administration officials responsible for disclosing Valerie Plame as a spy may not be prosecutable under the Intelligence Identities Protection Act. Perhaps the earliest somewhat objective suggestion of this possibility came from TIME magazine in an article on January 22, 2004, about a month after special prosecutor Patrick Fitzgerald was named by Assistant Attorney General James Comey: the article included the almost cryptic and throw-away comment that it was entirely feasible that "...prosecutors will learn who perpetrated the leak but won't have enough to bring charges."

Five hundred eighty-eight days after Robert Novak wrote his now-infamous column, it would appear that the "senior [Bush] Administration officials" (to quote Novak) will escape justice; and 418 days after the special prosecutor was put to his task, he remains unsuccessful in his quest for justice in the matter of the outing of an American spy.

In fact, that special prosecutor has been magnificently successful.

Patrick Fitzgerald has now secured from the 3^rd Circuit Court of Appeals a ruling that Judith Miller of The New York Times and Matthew Cooper of TIME magazine do not have protection under the First Amendment regarding the confidentiality of their sources. This means that all courts in the 3^rd District now have a mandatory precedent by which they must henceforth abide; it also means that all federal courts in other Districts have a "persuasive precedent" that overcomes many possible alternative rulings they might have available. The only precedent higher than this would be a ruling on the matter from the United States Supreme Court, which would be binding upon all courts in the land where there was a federal question of journalist source confidentiality involved. Neither The New York Times nor TIME magazine may be interested in that court of last resort, since it would give the highest court in the land the opportunity to revisit, with a decidedly more Right-leaning collection of Justices, the somewhat confusing Branzburg v. Hayes case, which closed, but did not lock, the door to journalists' claim of protection from prosecution for refusing to reveal the identities of sources.

The risk of having the U.S. Supreme Court once and for all obliterate all hope in every federal jurisdiction of protecting sources from the prying inquiries of every two-bit and high-powered federal prosecutor would be gone for generations. As it stands now, at least the 3^rd Circuit Court ruling is not mandatory precedent everywhere in the nation, although it comports in substance with Branzburg v. Hayes. (Unfortunately, though, the 5^th Circuit Court, in Leggett v. United States of America, displayed similar hostility to the journalistic confidentiality privilege.) The only protection journalists will have is at the state level in those states that have so-called "shield laws."

Patrick Fitzgerald has used Justice Department funds to prosecute journalists concerning source confidentiality. Nothing more than that has stood before the bar of material justice in the matter of the Valerie Plame scandal. The investigation has been carried out before a secret, federal grand jury; and it has been carried out with a virtual black box funding arrangement. To that second matter, the simple fact is that the Justice Department has used public funds, not in the pursuit of truth in some narrow matter involving a journalist and his or her confidential sources, but in an all-out and entirely successful, final, once-and-for-all destruction of the very idea of source confidentiality that journalists had used for more than a generation to rip open the fetid bowels of government corruption, mendacity, and incompetence.

No criminal wrongdoing of any kind has been prosecuted regarding the charge to which the public was told a special prosecutor was being appointed in late December of 2003. Disclosures made recently on Weblogs have led to the destruction of evidence that may or may not have been germane to the prosecution of persons responsible for disclosing the name of an intelligence operative; and more importantly, no one will ever know, now, the extent of information that was destroyed because of amateur journalists/bloggers who found themselves compelled to investigate what the federal prosecutor seemed unable to bring to even so much as a hint of an indictment. And not even the journalist who placed Valerie Plame and her entire network of spies and other human assets in harm's way has been put on display for disposition by the laws of the land. Only those who refused to do the Administration's bidding are being legally brutalized.

Measuring purpose by results, the special prosector appointed 418 days ago has demonstrated clearly the functional end to which the Bush Administration tasked his superiors. No amount of braying about the law and its ponderous course can change the results, as they now stand, of 418 days of secret grand jury activity, unknown and perhaps millions of dollars of taxpayer money, and lives both public and private being wrecked.


After the attacks on the World Trade Center and the Pentagon on September 11, 2001, the White House used those criminal acts to prosecute a pre-emptive war against Iraq, which had nothing whatsoever to do with the crimes against humanity and the United States that had occurred. The Justice Department, by the manner in which it has handled the disclosure that Administration critic Joseph Wilson's wife, Valerie Plame, was a spy, has done precisely the same thing: it has used a real crime as a pretext for an attack that it had long conspired to carry out anyway on an entirely unrelated target of opportunity.

This sets forth to all but the blind a fiendish pattern within the Bush Administration. Whether it be the Pentagon or the Justice Department, real crimes go unpunished, being used instead as cover for plans that are not to be abated or distorted by the need of the nation to find out the truth and punish real criminals.

In a highly favorable Washington Post article entitled "The Prosecutor Never Rests," James Comey, acting Attorney General in the Valerie Plame investigation and the political appointee to whom Mr. Fitzgerald reports, is quoted as supporting Mr. Fitzgerald's prosecution of journalists: "[T]he media accounts and the columnists portray him as some sort of runaway prosecutor. That makes me smile."

No doubt, it does.



In the final installment of this three-part series, the work of Valerie Plame will be considered, and working hypotheses will be offered of what really motivated the Bush Administration to wreck her career and—more importantly to national security—destroy her work.

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Go to
Part One     Part Three
of this series.