Remember the Valerie Plame scandal? She was outed by the Bush administration as a covert CIA operative after her husband, Joe Wilson, accused the President of going to war against Iraq on false pretenses. Bush is gone, and the scandal is forgotten. But it takes a while for these political scandals to reach the courts. That day has arrived.
The case is Wilson v. CIA, decided on November 12. Valerie Plame-Wilson wanted to reveal information about her career with the CIA in her autobiography. The CIA pulled out Plame's secrecy agreement with the agency in which she promised as a condition of her employment not to disclose classified information. In fact, in prosecuting Scooter Libby for lying about slipping Plame's covert status to the media, the government did publicly disclose that, from January 2002 forward, Plame worked in the CIA's Counterproliferation Division, focusing on Iraq. Plame wanted information about her pre-2002 employment in the book. Does the First Amendment allow her to do so?
Plame says "yes." While the CIA can impose a prior restraint on employee speech as a condition of employment, it cannot prevent an former employee from publishing classified information if the agency itself has officially disclosed it. Plame also points out that the media had widely reported that she was a classified CIA employee for 20 years, and that rigid enforcement of the secrecy agreement means that she is the only person who cannot write about portions of her career.
The Court of Appeals (Katzmann, Raggi and Keenan [D.J.] says no. The opinion summarizes the Plame scandal and how the government exposed Plame's CIA service in the context of her husband's whistleblowing about the Iraq war in the wake of President Bush's 2003 State of the Union Speech in which he made the case for the Iraq war. The intriguing context of this case, however, does not gain Plame any relief. The CIA did not "officially" disclose information about Plame's pre-2002 service, even if it did refer to it in a private letter to Plame in the context of her retirement. While a Congressman cited the letter in publicly trying to enact legislation on Plame's behalf, the CIA did not know that Plame was going to provide the letter to Congress, and the letter itself inadvertently omitted the "classified" stamp which makes it contents off-limits. The Court of Appeals concludes, "a former employee's public disclosure of classified information cannot be deemed an 'official' act of the agency."
Plame also argues that the government's interest in classifying this information is weakened by the fact that the media had already publicized her pre-2002 role with the CIA. Plaim and amici suggest that including this information in her book allows her to participate in the public debate over the scandal that led to her resignation. The Court of Appeals disagrees, concluding that "This argument overlooks a critical fact: as a condition of her employment with the CIA, Ms. Wilson signed a contract forever waiving her right to 'disclose in any form or in any manner ... information which is classified ... and which I have obtained during the course of my employment" with the CIA. Plame remains bound by this agreement, which does not contain an exception allowing her to discuss classified information provided that no harm would result.