Jewish World Review July 4, 2005/ 27 Sivan, 5765

Wesley Pruden

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When the law gets big for its pants | There's no mystery about why the U.S. Supreme Court threw the Ten Commandments out of the courthouse.

You can't engrave "thou shalt not steal" or even "thou shalt not commit adultery" and certainly not "thou shalt not lie" on the walls inside a building full of lawyers, judges and politicians without creating a hostile work environment.

Look no farther than the U.S. Court House in Washington. A prosecutor in over his head and a judge with an inflated opinion of what a big fellow he is conspire to scuttle one of our most important constitutional guarantees in the name of the "law."

To save the bungling prosecutor's face, the judge threatens to jail two reporters for failing to take notice of the prosecutor's predicament and the judge's own eminence, which he regards as at least titanic. The judge, Thomas Hogan of the U.S. District Court in Washington, calls the case "curiouser and curiouser," and cites a fairy tale as evidence. "Alice in Wonderland," in fact, appears to be the judge's favorite authority. He quoted Lewis Carroll twice in one hearing this week.

But it's not really curiouser. The case has descended into an exercise in prosecutorial revenge and judicial aiding and abetting, and its origins are rooted, like nearly everything else in Washington, in partisan politics. What happened is this: Joseph C. Wilson IV (not to be confused with Joseph C. Wilsons I, II or III), a onetime diplomat passed over when George W. Bush handed out promotions, wrote an op-ed commentary for the New York Times mocking the war in Iraq. Eight days later, Robert Novak, the syndicated columnist, wrote that "two senior administration officials" had told him that Mr. IV had taken his wife, Valerie Plame, along on a "fact-finding" trip to Africa to keep him company at government expense, and identified her as "an agency operative on weapons of mass destruction." Everyone assumed, maybe inaccurately, that the Novak sources were Bush administration figures angry about Mr. IV's carping about the war in Iraq. An "agency operative" could be almost anyone, from a Mata Hari or an Antonia Ford to someone who clips newspapers and pastes them in the CIA scrapbooks. Mzz Plame was neither a Mata nor an Antonia. Then Matt Cooper of Time magazine wrote about it, and Judith Miller of the New York Times asked around, collecting information, and wrote nothing.

The Justice Department was eager to punish someone, if only to show how evenhanded the Bush administration was (or is), and appointed Patrick Fitzgerald to find a violation of a 1982 law prohibiting the identification of a CIA agent the spooks are trying to keep under cover. The only covers Valerie Plame was under were Mr. IV's covers. The law says further that the revelation must be part of a "pattern" of trying to harm "intelligence." The CIA has, as G-d and everybody else knows, done a lot to harm intelligence over the past few years, but Mr. Fitzgerald wanted to put someone in jail. His superiors expected at least an indictment, since any prosecutor can indict a ham sandwich. But Mr. Fitzgerald couldn't even come up with two slices of stale bread.

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So he demanded contempt citations against Matt Cooper and Judith Miller. We don't know why. The judge sealed eight full pages of his reasons. "Some legal minds," writes William Safire, the conservative (if that matters) sage emeritus of the New York Times op-ed page, "think [the prosecutor] is falling back on the Martha Stewart Theory of Prosecution. That is: if the underlying crime has not been committed, justify the investigation by indicting a big name for giving false information." The prosecutor gets his ham sandwich, a few headlines, the judge gets to exercise his ego and authority, impressing his wife if no one else, and only a couple of reporters go to jail, where Official Washington thinks all reporters and editors belong.

Both Mr. Cooper and Mzz Miller insist they'll waive their freedom before breaking their promises to the source(s), but Time magazine, with the usual courage of corporations, caved yesterday and said it would hand over certain documents, which may or may not satisfy the prosecutor and his judicial accomplice in this crime against justice. The New York Times, courage intact, says it will stand fast with Judith Miller. Mr. Cooper regrets his employer's wimp-out, and well he should. Who will trust a Time assurance of confidentiality now?

This sordid episode will strike Americans outside the Beltway as hardly rising to the level of trivia. Abusing newspapers is only what newspapers deserve. But Official Washington understands very well what this is all about. As the government draws abusive "security" ever tighter, the First Amendment must be chipped down to size.

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JWR contributor Wesley Pruden is editor in chief of The Washington Times. Comment by clicking here.

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