Wednesday, February 21, 2007


Sam Smith

Lately, I've been trying to figure out how to pass on state secrets to someone without getting into trouble. I don't actually have any such secrets, mind you, but the matter is getting so hopelessly complex that I thought I better straighten it out before I responded to the small flower pot my neighbor across the street regularly puts on the sill of his right second floor window.

There are a number of models, each with their own hazards.

The most dangerous, clearly, is that used by former FBI agent Robert Hanssen. Hanssen's main error was to give the secrets to the Russians before Bush became pals with Pootie, to gave them really valuable stuff, to take a lot of money for it, and to do it around a photogenic and photomnemonic young assistant able to work well with photodocumentarian movie producers.

Considerably less costly was the route followed by Sandy Berger. For one thing he lifted his documents from the National Archives where even the secrets are more boring than those in real life. There is no evidence that he took any money for them and his beneficiary, while unknown, is more likely to have been a presidential candidate rather than some nasty Russian. For his penalty, as one observer put it, "He had to pay a $50,000 fine and pick up some garbage on the side of the road in Virginia." A friendly media made as little of it as it could, albeit quoting Berger's lawyer as saying, "It never ceases to amaze me how the most trivial things can be politicized. It is the height of unfairness . . . for this poor guy, who clearly made a mistake." From the coverage, it is fair to assume that much of the media agreed.

As this is written, I don't know the price Scooter Libby will pay - if any - for his alleged offenses - if proved. But not one mainstream journalist has yet explained why it is so much worse to lie about passing on the identity of an apparently not all that covert CIA official than it is to remove state secrets from the archives. If convicted, Libby - accused in the prosecutor's own words of a 'dumb lie' - will, at least until the pardon, face a dramatically greater punishment than Berger. And the befuddling thing is that no one in establishment Washington - regardless of their clearance - seems to give a damn.

I do, however, have the uncomfortable sense that if I were to steal some documents from the National Archives and stick them in my sock I might be treated more like Patrick Fitzgerald plans to treat Libby so I guess I better not try.

There is, however, one further possible route. Pass on the stuff, reveal the covert identity, but not to benefit the Russians or a fellow politician. Instead, give it to some officials at AIPAC to pass on to Israel. This encouraging possibility is raised by a report in Secrecy News about the espionage trial of two former AIPAC officials which is not going so well for the government. Judge T.S. Ellis III has raised all sorts of obstacles but the one most cheering to a prospective spy is this one:

"The nature of the relationship between the governments of the U.S. and Israel may also have a bearing on the defendants' state of mind, the Judge wrote, in language that may foreshadow close
scrutiny of U.S.-Israel relations at trial: 'The more specific the details of the alleged cooperation between the two governments, the more probative [i.e., legally significant] such cooperation becomes," Judge Ellis wrote. In another important observation, the judge wrote that 'testimony that disclosures of alleged NDI were viewed by defendants, or their contacts in the diplomatic establishment, as beneficial to the United States' interests is exculpatory.'"

In other words, if you want to spy for Britain or Israel, you have a pretty good chance of getting away with it, at least in Judge Ellis' courtroom.

There are, to be sure, a few residual moral questions such as precisely how closely the goals of Israel and the U.S. are really aligned and who gets to cut the deal: the President, Congress or the people? And which policies are covered: attacking Iran, starving Palestinians, invading Lebanon?

So it remains a bit tricky, but, for the moment, if you want to steal state secrets in the safest possible fashion, just make sure AIPAC gets a copy.