Doleful Argument

In today's NYT, Bob Dole writes a doozy of a column.

First, the good part: Dole argues that the press should have a Federal shield. I'm on board with that one. But I am highly puzzled by this paragraph:

Congress can help rectify this situation by passing a bill introduced by Senator Richard G. Lugar and Representative Mike Pence, both Indiana Republicans, that sets clear standards the federal government must meet before it issues a subpoena to a reporter in a criminal or civil case. For example, in a criminal investigation, a reporter would be required to turn over confidential information only if a court determined that there are reasonable grounds to believe a crime has been committed, that the requested information is essential to the investigation and that it could not be obtained from nonmedia sources. This is hardly a free pass for journalists; importantly, the bill specifically authorizes the forced disclosure of a source's identity if doing so is necessary to prevent imminent and actual harm to national security. [Emphasis added.]

Dole must be unaware of many of the basic facts of the Fitzgerald investigation. First, as Mark Kleiman has noted, Judge Hogan (the one handling Miller's contempt citation) said that Miller's is "a case in which the information she was given and her potential use of it was a crime"; so I guess "a court determined that there are reasonable grounds to believe a crime has been committed"; for more, see this post by Lawrence O'Donnell. Second, I'm pretty sure that Fitzgerald has argued in his court filings that there is no other way to get the information he seeks from Miller; assuming that information was transmitted between Miller and a single source (or recipient) facing legal jeopardy himself, I'm not sure how Fitzgerald could possibly get the information "from nonmedia sources". My point isn't to argue that Dole is wrong to support a Federal shield law (or, necessarily, to support Pence-Lugar). Rather, it's that the conditions of this law -- as Dole lays them out -- would be met here. So what's Dole's point?

Dole also writes that

I am also greatly concerned about Judith Miller's situation because she has been incarcerated as a result of an investigation into possible violations of the Intelligence Identities Protection Act of 1982, of which I was a sponsor. The law was intended to protect covert intelligence operatives whose lives would be endangered if their identities were publicly disclosed. We were particularly concerned about people like the notorious Philip Agee, a former C.I.A. officer who systematically exposed the agency's covert operatives.

Thus the act was drafted in very narrow terms: our goal was to criminalize only those disclosures that clearly represented a conscious and pernicious effort to identify and expose agents with the intent to impair America's foreign intelligence activities.

Where to begin?

Having listened to legions of conservative assaults on the judiciary, I thought that the text of the IIPA is what matters. Dole's reference to perniciousness appears nowhere in the text, so this statement is basically a nonsequitur. In any case, isn't the intentional disclosure of a WMD agent's identity to discredit or seek revenge against political opponents pernicious enough for Bob Dole?

Dole continues:

With the facts known publicly today regarding the Plame case, it is difficult to see how a violation of the Intelligence Identities Protection Act could have occurred. For example, one of the requirements is that the federal government must be taking "affirmative measures" to conceal the agent's intelligence relationship with the United States. Yet we now know that Ms. Wilson held a desk job at C.I.A. headquarters and could be seen traveling to and from work. The [despicable] journalist Robert D. Novak, whose July 14, 2003, column mentioned Ms. Wilson, using her maiden name, and set off the investigation, has written that C.I.A. officials confirmed to him over the telephone that she was an employee before he wrote his column.

Gee, I thought that CIA official Bill Harlow specifically asked Novak not to publish his story; the fact that Harlow didn't tell Novak that the reason was Plame/Wilson's undercover status seems to be because Harlow himself would have violated the IIPA if he had done so. Lastly, I have yet to hear a single coherent argument as to the relevance of Plame/Wilson's "desk job" status at the time Novak published his column. Dole may have helped write the IIPA, but he seems to have forgotten that 50 USC 426 says

(4) The term "covert agent" means—

(A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency—

(i) whose identity as such an officer, employee, or member is classified information, and

(ii) who is serving outside the United States or has within the last five years served outside the United States;

For a few naive years after the 1996 election, I allowed myself to be lulled into thinking that Bob Dole wasn't such a bad guy. I realized the error of my ways when I watched Dole join the swift boat slander campaign. Read this column by former Nixon aide Noel Koch if you have any doubt regarding Dole's motives or essential indecency.

Update: ThinkProgress comments on Dole's column as well.

Update 2: Don't know how I forgot this, but I meant to point out that the IIPA is hardly the only, or even apparently the most likely, law posing jeopardy to the 21 Bush WH/inner circle members so far tied to the RWLDGate. Mark Kleiman has been pushing the Espionage Act angle for years; click here for a recent post.