Legal Lessons

This is a partial transcript of "Special Report With Brit Hume," July 15, 2005, that has been edited for clarity.

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(BEGIN VIDEO CLIP)

SEN. PAT ROBERTS (R-KS), CHAIRMAN OF INTELLIGENCE COMMITTEE: Now, the law requires knowledge. And if Mr. Rove didn’t know and no one told him that Valerie Plame was undercover — Plame, pardon me — he didn’t break any laws. The mere fact that one works for the CIA is not in and of itself classified.

(END VIDEO CLIP)

JIM ANGLE, GUEST HOST: The law Senator Pat Roberts (search) is talking about is the one that prompted this entire legal saga involving Joe Wilson, his wife, Valerie Plame (search), and White House adviser Karl Rove (search), among others. Where are we in this investigation?

So far, it has raised as many questions as it’s answered. We turn for some answers to Bruce Sanford, a First Amendment attorney and one of the authors of the Intelligence Identities Protection Act, the law at the center of this controversy.

Bruce, thanks for joining us.

BRUCE SANFORD, FIRST AMENDMENT ATTORNEY: Happy to be here.

ANGLE: Let me ask you first, there were media reports today, which FOX confirmed, that Rove testified to the grand jury that he did not learn Valerie Plame’s role and didn’t know her name, at least for most of this, from any classified reports or any briefings he had, but rather from journalists who called him and mentioned it in passing. Does that make any difference?

SANFORD: Well, it does make a difference, Jim, legally, of course. And sort of, in terms of this drama that’s been going on around this story, it makes a huge circle here where the symbiotic relationship between journalists, and White House government officials, and really any administration is brilliantly displayed here, where Karl Rove is finding out basic information from journalists.

ANGLE: So journalists are telling him something, he’s telling other journalists that, and we get one big circle?

SANFORD: That’s right. That’s right.

ANGLE: Now, one of the big arguments in this case is essentially over intent. Joe Wilson alleges that Karl Rove mentioned his wife. At one point, he said he mentioned her by name — we don’t have any evidence that’s the case, at least not yet — in order to out her in an effort to punish him.

The other explanation is that journalists called the White House and said, "Look, Joe Wilson’s a critic of the administration. What idiot over there had the bright idea of sending this guy on a sensitive mission when, you know, you’ve every reason to believe he might criticize you?

And the answer came back, "We didn’t send him. The CIA sent him. His wife works there." Now, does it matter whether the intent was to out her or not, whether or not the intent was to actually do something to punish Joe Wilson or whether it was innocent? Is that a factor?

SANFORD: Well, in a way it makes some difference, in a sense though. The statute that we’re talking about, the basis for this entire investigation, was a 1982 law that’s only been used once in its 23-year and glorious history.

It’s written with so many restrictions and qualifications purposefully, really to restrict prosecutions to the outing of covert agents, during the Cold War (search), I might add, abroad. It was never really intended to ensnare White House officials or any government official in a net of a prosecution for just talking with journalists about public affairs, and national policy, and whether we should go to war with Iraq. It just wasn’t intended for that — for kind of use within the Beltway. It was intended for abroad.

ANGLE: This is when Philip Agee (search) and others was identifying agents in an effort to get them killed, or taken off the streets, or whatever?

SANFORD: Exactly, yes. Agee was trying to disrupt American intelligence gathering operations during the Cold War. He didn’t like the agency. He had worked for the agency and he was mad at them.

But it was a law that was really specifically targeted for him. As a result, it hasn’t really been used at all, except once in Ghana in the mid-1990s.

But the point here really, Jim, is that the law is kind of being misapplied, I think, in this investigation. It’s just a poor basis for this entire investigation.

ANGLE: Now, you say someone serving abroad. Joe Wilson wrote that they returned from overseas in 1997. We know that she had twins who were three, so that sort of takes — the twins and the pregnancy takes them, makes sure they were here. That’s about four years.

Did it matter that she hadn’t been out of the country in five years? Couldn’t she have gone out of the country again with a cover?

SANFORD: It makes a huge difference. The law itself requires and defines covert agent, which it speaks of, as somebody who has been stationed abroad within the past five years. Now, it’s clear from Joe Wilson’s book, according to USA Today the other day, that, if you do the counting — the Wilsons were married in 1998 — she had not been stationed abroad within the last five years.

That means she’s not a covert agent within the meaning of the statute. And really, the statute cannot be applied to the disclosure about her. She clearly was undercover at Langley. She had a desk job at Langley, but she really did not have the kind of deep cover that covert agents abroad have to have.

ANGLE: Let’s get to another part of this. We’ve got one minute left. Judith Miller (search) is in jail. She didn’t even write a story on this. What could possibly be the reason that she did not testify and the reason that she finds herself sitting in a jail now?

SANFORD: It’s a whole separate issue, really, the journalists protection of sources. I think she’s a principled woman who says, "I cannot do my job" — and she’s an excellent reporter with lots of sources in government and a prodigious reporter.

And she said, "I just can’t do my job unless I promise them confidentiality." I think that’s why we need a federal shield law for reporters, to really give reporters the same kind of confidentiality that psychotherapists have or other people, where as a society we value confidentiality in the conversations.

ANGLE: Very quickly. Are you worried that this is going to effect the relationship between officials and journalists? Ten seconds.

SANFORD: I think that the net result of this is that people in the White House clam up about explaining national policy to journalists. The public’s the real loser.

ANGLE: OK. Thanks very much, Bruce Sanford.

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