Opiniatrety

Rove and the Philosophy of Language

It has been brought to my attention that Mark Liberman put up the batsignal for philosophers to analyze the Plame defense a few days before I did so. Well, it's an honor just to be nominated. The part already discussed has drawn the most attention, because it's the most laughable part of that particular defense, but Liberman may be right that there are other philosophical issues involved.

Buncha disclaimers first. We're largely talking about an issue of whether the law was violated. The language used in the law apparently sometimes gets defined in a way that doesn't quite correspond to its ordinary use, or to anything philosophers claim to illuminate either. I can't illuminate that; I'm only offering one philosopher's analysis.

Also, the assumption will proceed as though Rove's lawyer has been making true statements to the press. I don't actually believe that. For instance, Novak himself said that someone gave him Plame's name. That would pretty much moot a large part of the discussion.

Third, this deals only with the legal aspects. As for the moral and political aspects, read Ted Barlow; even if Rove's (latest?) story is true, the best that can be said for him is that he was hideously careless. Also Josh Marshall. And the Poor Man on Bush's indubitable moral complicity. If you think that it's a bad thing that everyone now knows that Valerie Plame was a CIA agent, you shouldn't be pleased with Rove and Bush. If you think it's a good thing, you should be. Either way the legalities don't matter, though they may determine if anyone winds up signing a contract with the federal rock-hockey league.

On to the philosophical issues.

Liberman points out that Rove's lawyer, Luskin, said ""he did not tell any reporter that Valerie Plame worked for the CIA," and quotes Tom Maguire:

"[H]e did not tell any reporter that Valerie Plame worked for the CIA", may be a perfect non-denial denial - did Rove say, for example, that Joe Wilson's wife worked for the CIA, but omit her name (which was available on the internet as part of Ambassador Wilson's on-line bio, now long gone)?

Luskin did indeed try out the "He didn't say her name" gambit. Now, even so, I think "He did not tell any reporter that Valerie Plame worked for the CIA" may come out false. There's a certain amount of play in indirect discourse reports--in some contexts, it's OK to substitute pretty much any co-referring term for the one originally used; in others you should stick pretty close. But it's very unlikely that we're in a context where it would be false to report an utterance of, say, "Joe Wilson's wife works for the CIA" as "Rove said that Valerie Plame works for the CIA."

Would this count as identifying Plame? It sure would. Anyone with half a brain (and, I think with access to public records) would be able to use this information to figure out the name of the agent, and everything that follows from it. As Yglesias said about the no-name defense, "I have a hard time imagining that will stand up in court unless the people who drafted the relevant law were really, really dumb, but that's outside my area of competence." If you can't identify a CIA agent, you can't say "Valerie Plame works for the CIA," you can't say "Joe Wilson's wife works for the CIA," you can't say "That woman works for the CIA," you can't say "The woman in the corner drinking a martini works for the CIA," and you can't say "Vizzalerie Plizzame izzizz ayzay Seeeyeayzay agizzent."

If there's a teachable moment here, it's about how epistemic properties don't always track modal properties.

And, given that the statute apparently says "any information identifying such covert agent," I think it's pretty clear that saying "Joe Wilson's wife" is a no-no.

Liberman raises a thornier question: "There's also the question of whether confirming a rumor is 'disclosing' the information involved; and if you tell someone something that you think they should already know, have you 'knowingly disclosed' it?"

I'd strike that 'should'--what's relevant is whether they do know it, or you think they do.

If you're charged with keeping information secret, it doesn't necessarily get you off the hook if you're confirming a rumor. Presumably you put the person in much better epistemic position than if they just had the rumor. I think I blogged a case in which Richard Clarke was told to take some passage out of his book, because it was classified, so he replaced it with a Village Voice article telling exactly the same story. (But I can't find the post.) The point being that, if the matter was properly classified, there might be some justification for telling Clarke not to quote the Voice either, since his doing so gives their story extra credence. (But in this case the story wasn't properly classified.)

I also remember an insider-trading case where someone said to someone with insider knowledge, "A little rabbit told me that [something the guy wasn't allowed to say]," and the insider said "Your rabbit has good ears." He was convicted of insider trading--the conversational indirection didn't help, nor did the fact that he was only confirming a rumor.

But would this count as disclosing information, and would it be illegal under the law? I don't know. It strikes me as unlikely that this is what happened, though, since it's been said that the case involves multiple Administration officials talking to multiple reporters.

[UPDATE: The Agonist--is he rehabilitated?--says "I spoke with a friend of mine in the intelligence profession recently about this topic and he told me, 'intelligence professionals cannot confirm information that is classified even if you receive that information from a non-classified source. Period.'"]

The $64 legal question is probably whether Rove can be shown to have known that Plame was a covert operative, which is necessary for a crime to have been committed. Josh Marshall's analysis of Novak's use of the word "operative" convinces me that someone told Novak that Plame was undercover. But that may not hold up in court. There's also the question of whether the CIA was taking "affirmative measures" to protect Plame's identity. I'm not sure what "affirmative measures" means, but it strikes me that as long as the CIA maintained a front company at which Plame was said to work, they were taking measures to conceal her identity. The statute also requires that Rove must have known that the CIA was taking affirmative measures, which seems harder to prove.

The drafters of the IIPA apparently deliberately made it hard to break. Mark Kleiman cites six components that must be fulfilled for the law to have been broken. If the current story is that Rove did identify Plame to reporters (with or without her name), it looks to me as though Rove hits 1-4. It seems to me likely that he did 5 and 6 as well, but it may be impossible to prove. But, as I said above, that doesn't affect the moral angle. (And, as Kleiman remarks, that's not the only legal angle.)

Posted by Matt Weiner at July 15, 2005 12:12 PM