Wednesday, January 04, 2006

Taking a leak


On her blog, Michelle Malkin summarizes her latest column thusly:

My latest column blasts the "good" leak/"bad" leak and "whistleblower"/"felon" memes now being used by the Left to defend the NYT/NSA story. To the Times' defenders, keeping secrets to protect counterterrorism operations is an impeachable offense, but keeping secrets to protect the Gray Lady's fanny is an elite media prerogative.

It would be fair to point out that "the Right" in general, and Malkin in particular, are playing both sides of the "PlameGate versus NSAGate" street as well ... if that street existed. But it doesn't. There's no comparison between the "outing" of Valerie Plame and the revelation of the Bush administration's illegal domestic espionage program. Here's why:

- Regardless of whether or not the Plame "outing" violated the specific statute on revealing the identity of a "covert agent," a grand jury did conclude that it involved the disclosure of classified information. If that finding is material to the case against Scooter Libby, his attorneys may, of course, attempt to rebut it.

- No grand jury, applying Executive Order 12958, could reasonably conclude that the existence of Bush's "warrantless eavesdropping" program is, or legally ever could be, "classified information." Not no way, not no how.

Here's the relevant section:

Sec. 1.8. Classification Prohibitions and Limitations.

(a) In no case shall information be classified in order to:

(1) conceal violations of law, inefficiency, or administrative error;

(2) prevent embarrassment to a person, organization, or agency;

(3) restrain competition; or

(4) prevent or delay the release of information that does not require protection in the interest of national security.


Here's the New York Times article which started the ball rolling.

What are the distinguishing characteristics of the program which are revealed in the article?

1) That it was conducted extra-legally; and

2) that public disclosure of its extra-legality would embarrass the President of the United States.

That's it. That's all. The article does not reveal the name of the program. It does not reveal the names or positions of the persons conducting the program. It does not reveal sources. It does not reveal methods. It does not reveal heretofore unknown capabilities. It reveals only those characteristics of the program which are intrinsically unclassifiable. And if something is not classifiable, it is by definition not classified.

The disclosure of the program's existence and its criminal nature did not damage the national security; it only damaged the president's reputation. It did not endanger the United States; it only endangered the president's ability to continue committing crimes with impunity. If there's any parallel between the Plame case and this one, that parallel is to be found in the Bush administration's continuing insistence that it is above the law. To their everlasting shame, Malkin and friends' political raison d'etre seems to have become defending that insistence at all costs.

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