De la Vega on How to Prosecute the Plame Case

By Tom Engelhardt.

Rumors and leaks continue to swirl around the case of outed CIA agent Valerie Plame and the various journalists and Bush "senior administration officials" believed to be involved in some fashion in her outing. Whole forests have undoubtedly been pulped for the endless flood of summer stories about the Plame case and yet something has been missing. The Intelligence Identities Protection Act of 1982, the law against outing a CIA operative under which Special Counsel Patrick Fitzgerald was, in essence, called into existence, is rarely discussed in any serious way -- and then at best only in a passing paragraph or two deep in any story. And yet a media/punditry consensus has formed that it is a law so specifically, even quirkily, written as to be almost impossible to use in a prosecution (hopeless, in fact, against a figure like Karl Rove or Vice President Cheney's right-hand man I. Lewis "Scooter" Libby); and that Special Counsel Fitzgerald has already turned away from the law, moving on to more conceivable avenues of prosecution -- like obstruction of justice.

Elizabeth de la Vega, former federal prosecutor and Chief of the San Jose Branch of the U.S. Attorney's Office for the Northern District of California, has no more inside information than the rest of us on an investigation that has seemed remarkably leak-less; but calling on her prosecutorial experience, she begs to differ on the question of whether the 1982 law is difficult to use in a prosecution. Alone among a sea of pundits, she suggests that the 1982 law is a perfectly usable one under which, based on what we know at present, a case could indeed be brought against a "senior administration official" and perhaps prosecuted successfully indeed. This is news. Tom.

Plame in the Courtroom

Is the Intelligence Identities Protection Act really impossible to prove?
By Elizabeth de la Vega

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 for proof of intent. Typically, writing for Slate on July 19th, Christopher Hitchens 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." Similarly, columnist Richard Cohen, in the July 14 Washington Post, said he thought Rove was a "political opportunist, not a traitor" and that he didn't think Rove "specifically intended to blow the cover of a CIA agent." Such examples could be multiplied many times over.

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"; in other words, the factors he has to prove under whatever statute he is considering. If a grand jury finds probable cause to believe that each element has been proved, it may then return an indictment. At trial, the judge instructs the jury about these same elements. 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 can't you change the elements? Because they come from the exact wording of the statute. This then 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 received 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]."

To figure out the elements that must be proved, you simply break this run-on sentence into subparts in the following manner:

A defendant must:  {mosgoogle right}

(1) have authorized access to classified information that identifies a covert agent;

(2) "intentionally disclose" the information;

(3) disclose it to one not authorized to receive classified information;

(4) know the information he is disclosing identifies the covert agent; and

(5) know that the U.S. is taking affirmative measures to conceal the covert agent's intelligence relationship to the United States.

Proof of these five elements -- and no others -- is what's required under the 1982 legislation.

So what, exactly, does the prosecutor have to prove about the defendant's state of mind under this law? Element 2 says 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."