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No evidence of criminal conduct in Plame case

Why have so many people rushed to assume that a crime was committed when someone "in the administration" gave columnist Robert D. Novak the name of CIA "operative" Valerie Plame? Novak published her name while suggesting that nepotism might have lurked behind the CIA assignment of her husband, Joseph Wilson: The agency sent him to Niger to determine whether Iraq was interested in acquiring uranium from that country, although he was an expert on neither Niger nor nuclear weapons.

Journalists are being threatened with jail for not testifying who gave them information about Plame. Ironically, the special prosecutor has pursued this case with characteristic zeal after major publications editorialized that a full investigation and prosecution of the government source was necessary. The Atlanta Journal-Constitution even claimed the allegations came "perilously close to treason."

It's time for a time-out on a misguided and mechanical investigation in which there is serious doubt that a crime was even committed. Federal courts have stated that a reporter should not be subpoenaed when the testimony sought is remote from criminal conduct or when there is no compelling "government interest"; i.e., no crime. As two people who drafted and negotiated the scope of the 1982 Intelligence Identities Protection Act, we can tell you: The Novak column and the surrounding facts do not support evidence of criminal conduct.

When the act was passed, Congress had no intention of prosecuting a reporter who wanted to expose wrongdoing and, in the process, once or twice published the name of a covert agent. Novak is safe from indictment. But Congress also did not intend for government employees to be vulnerable to prosecution for an unintentional or careless spilling of the beans about an undercover identity. A dauntingly high standard was therefore required for the prosecutor to charge the leaker.

At the threshold, the agent must truly be covert. Her status as undercover must be classified, and she must have been assigned to duty outside the United States currently or in the past five years. This requirement does not mean jetting to Berlin or Taipei for a week's work. Since Plame had been living in Washington for some time when the July 2003 column was published, and was working at a desk job at CIA headquarters in Langley, Va. _ a no-no for a person with a need for cover _ there is a serious legal question as to whether she qualifies as "covert."

The law also requires that the disclosure be made intentionally, with the knowledge that the government is taking "affirmative measures to conceal (the agent's) relationship" to the United States. Merely knowing that Plame works for the CIA does not provide the knowledge that the government is keeping her relationship secret. In fact, just the opposite is the case. If it were known on the Washington cocktail circuit, as has been alleged, that Wilson's wife is with the agency, a possessor of that gossip would have no reason to believe that information is classified.

There are ways of perceiving whether the government was actually taking the required necessary affirmative measures to conceal its relationship with Plame. We can look, for example, at how the CIA reacted when Novak informed the press office that he was going to publish her name. Did the general counsel call to threaten prosecution, as we know has been done to other reporters under similar circumstances? No. Did then-Director George Tenet or his deputy pick up the phone to tell Novak that the publication of her name would threaten national security and her safety, as we know is done when the CIA is serious about prohibiting publication? No. Did some high-ranking government official ask to visit Novak or the president of his newspaper syndicate to talk him out of publishing _ another common strategy to prevent a story? No.

Novak has written that the CIA person designated to talk with him replied that although Plame was probably not getting another foreign assignment, exposure "might cause difficulties if she were to travel abroad." He certainly never told Novak that Plame would be endangered. Such a meager response falls far legally shy of "affirmative measures."

There is even more telling CIA conduct about Plame's status. According to the Senate Select Committee on Intelligence's "Report on the U.S. Intelligence Community's Prewar Intelligence Assessments on Iraq," when the agency asked Plame's husband to take on the Niger assignment, he did not have to sign a confidentiality agreement, a requirement for just about anybody doing work for an intelligence agency. This omission opened the door for Wilson to write an op-ed piece for the New York Times describing his Niger trip. Did it not occur to our super sleuths that a nationally distributed piece about the incendiary topic of weapons of mass destruction _ which happens to be Wilson's wife's expertise _ could result in her involvement being raised?

The special prosecutor and reporters should ask Chief U.S. District Judge Thomas Hogan, who is overseeing the grand jury, to conduct a hearing to require the CIA to identify all affirmative measures it was taking to shield Plame's identity. Before we even think about sending reporters to prison for doing their jobs, the court should determine that all the elements of a crime are present.

Victoria Toensing was chief counsel to the Senate Intelligence Committee from 1981 to 1984 and served as a deputy assistant attorney general in the Reagan administration. Bruce Sanford is a Washington lawyer specializing in First Amendment issues.

Special to the Washington Post