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.
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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.
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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."
