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Exposing the Plame case mistake

The pundits say the law that protects covert agents' identities won't put anybody away in this investigation. Here's why they're wrong.

August 12, 2005|Elizabeth de la Vega | ELIZABETH DE LA VEGA recently retired after more than 20 years as a federal prosecutor in Northern California. A longer version of this article appears on the website www.TomDispatch.Com.

PUNDITS RIGHT, left and center have reached a rare unanimous verdict about one aspect of the grand jury investigation into the Valerie Plame leak: They've decided that no charges can be brought under the Intelligence Identities Protection Act of 1982 because it imposes an impossibly high standard. Christopher Hitchens, for instance, described the 1982 act as a "silly law" that requires that "you knowingly wish to expose the cover of a CIA officer who you understand may be harmed as a result." Numerous other columnists have nodded their heads smugly in agreement.

Shocking as it may seem, however, the pundits are wrong, and their casual summaries of the requirements of the 1982 statute betray a fundamental misunderstanding regarding proof of criminal intent.

Do you have to intend to harm a CIA agent or jeopardize national security in order to violate the Intelligence Identities Protection Act? The answer is no.

Before presenting any case, a prosecutor like special counsel Patrick Fitzgerald in the Plame case has to figure out "the elements of the crime." Parties can argue about whether the elements have been proved beyond a reasonable doubt, but neither side can add, delete or modify the elements even slightly to suit their arguments. Why? Because they come from the exact wording of the statute.

This is what the Intelligence Identities Protection Act of 1982 says:

"Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the U.S. is taking affirmative measures to conceal such covert agent's intelligence relationship to the U.S." shall be guilty of a crime.

So what, exactly, does the prosecutor have to prove about the defendant's state of mind under this law? Simply break down the run-on sentence. The defendant must "intentionally disclose" the information. To determine what "intentionally disclose" means, you must follow some basic rules of statutory construction. First, you look to see if the word is specifically defined within the statute itself. For example, the term "disclosed" is defined in the act to mean "communicate, provide, impart, transmit, transfer, convey, publish or otherwise make available."

The word "intentionally" is not defined in the statute, so you have to turn to the second rule of statutory construction, which is to see if it is defined or interpreted in applicable case law.

There is little case law on the statute itself. But there's a wealth of case law interpreting the term "intentionally" because it is a term of art found in nearly every criminal statute. Its meaning is well-established and straightforward. It simply means "on purpose, not by mistake or accident." So if someone runs off the bus and accidentally leaves behind papers that expose an undercover CIA agent's identity, no crime has been committed because Element 2 can't be proved.

Nowhere does this statute require proof that the defendant "wished to harm" an undercover agent or jeopardize national security. The reason why someone disclosed the information -- whether for revenge, to prevent the publication of a story or to harm the U.S. -- is an issue of motive, not intent.

Merely semantics, you say? In criminal law, it's nonetheless a key distinction. Motive is why someone acts; intent is the person's purposefulness while doing so. If you accidentally take home your neighbor's Gucci bag from the block party, there's no crime because you didn't act intentionally. (You do have to give it back, though.) If you grab your neighbor's bag on purpose, you've acted intentionally and you could be guilty of theft. It matters not a whit whether your motive was to get revenge on your neighbor for making too much noise or to get extra cash to hand out to the poor.

There are two other elements in the statute that relate to state of mind: The prosecutor has to prove that the defendant knew the information he or she was disclosing "identifies" the covert agent and that the U.S. was taking affirmative measures to conceal that agent's intelligence relationship to the U.S.

What does "identify" mean in this statute? Well, there is no specific definition and no case law to look to. So you turn to the third rule of statutory construction, which simply says that you apply the everyday meaning of the word. Perhaps, in a through-the-looking-glass world, someone could decree that to identify means to "name" and nothing else, but the statute doesn't say that; nor is that how ordinary people would use the word. There are obviously myriad ways to identify a person besides naming them, but unless a man were a polygamist, a reference to his wife would certainly suffice.

NONE OF US can presume to know the universe of facts that have been uncovered in the Fitzgerald investigation. On the contrary, at the risk of sounding like Donald Rumsfeld, we can be quite sure that there is much that we do not know, and that some of what we think we know is wrong. It would be presumptuous to declare that the Intelligence Identities Protection Act is definitely still under consideration in the grand jury proceeding. But it is equally presumptuous -- and illogical -- to declare that it is not under consideration, especially when the opinion is based solely on mistaken assumptions about the requirements of the law.

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