[Mb-civic] Why Rove could be convicted under Intelligence Identities Protection Act

[ean at sbcglobal.net]

http://www.motherjones.com/commentary/columns/2005/08/plame_prosecuti
on.html

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: 

(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." 

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 proven. On the other hand, if someone were 
speaking purposefully, as opposed to, say, drunkenly 
popping off at a bar, Element 2 would be satisfied. 

Nowhere does this statute require proof that the 
defendant "wished to harm" an undercover agent or 
jeopardize national security. Why someone disclosed 
the information -- whether 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. Evidence of a bad 
motive is usually admitted as background in the proof 
of a criminal case, but it is almost never an element 
of the crime; and evidence of a good motive is 
usually not a defense once the intent specified in 
the statute is proven. 

The other elements that relate to state of mind are 
Elements 4 and 5. To prove a violation of the 
Intelligence Identities Protection Act, the 
prosecutor has to prove that the defendant knew the 
information he or she was disclosing "identifies" the 
covert agent and that the government was taking 
affirmative measures to conceal that agent's 
intelligence relationship to the U.S. Both of these 
elements relate only to what the leaker knows; they 
don't require that he convey all of this knowledge to 
the unauthorized leakee. 

What then 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 -- as in Karl Rove's identification of "Wilson's 
wife" in his conversation with Time reporter Matt 
Cooper -- would certainly suffice to direct the 
listener to a single, specific person. 

How does all of this play out in the context of the 
ongoing grand jury investigation into the Valerie 
Plame leak? 

None of us can presume to know the universe of facts 
so far uncovered in the 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 surely wrong; nor can we presume to know 
the workings of Special Prosecutor Patrick 
Fitzgerald's mind. It would then be presumptuous to 
declare that the Intelligence Identities Protection 
Act is definitely still under consideration in the 
grand jury proceeding. But it would be no less 
presumptuous -- and illogical -- to declare that it 
is not under consideration, especially since that 
judgment is based on mistaken assumptions about the 
requirements of the law. (Interestingly, with each 
new commentary in the press or on TV, the statute 
only seems to get harder to prove.) 

It is also worth remembering that prosecutors analyze 
evidence with a view towards presenting it in a 
trial, and even in the post 9-11 world, trials are 
not like talk shows. The parties at a trial do not 
hurl scattershot attacks as if they were partisan 
guests in the drive-by shoutings that have become the 
stuff of so many news programs. In a trial, both 
sides present evidence according to established rules 
that are meant to weed out rumor and opinion. Almost 
inevitably, over the weeks if not months of a trial, 
evidence that may appear persuasive on a TV show, but 
is actually false or misleading, loses sway when 
viewed in the context of the larger picture. 

In painting that picture, the prosecution is not 
required to present its evidence so narrowly as to 
lose the context of the alleged crime. Right now, 
it's as if, when it comes to the Plame case, most of 
us are in the front rows of a movie theater and have 
no way of fully seeing what's on screen. Away from 
the daily drumbeat of news, rumor, and self-
interested leaks, however, the picture may make a lot 
more (and different) sense. Within limits, the law 
allows the prosecution to prove its case with the 
wide screen that's necessary for a clearer view. 

If the prosecution were attempting to prove that Karl 
Rove's July 11, 2003 conversation with Time's Matt 
Cooper violated the Intelligence Identities 
Protection Act, for example, it would obviously 
present Cooper's testimony about the conversation, 
and possibly the notes and e-mails that documented 
it. Since criminal law allows a jury to use common 
sense to draw reasonable inferences from the facts 
presented, a prosecutor could then argue that 
Cooper's testimony goes a long way towards proving 
all of the elements of the crime. (A prerequisite for 
any violation would, of course, be proof that Joseph 
Wilson's wife Valerie Plame was indeed a covert 
agent, but as former State Department 
counterterrorism expert Larry Johnson's July 22 
congressional testimony makes clear, there is 
abundant proof of that fact.) 

When it comes to the Cooper-Rove conversation, a 
prosecutor would assumedly argue, first, that there's 
no doubt Karl Rove provided information to Cooper 
intentionally; that is, not by mistake or accident. 
It strains credulity to suggest that a seasoned 
political operator like Rove ever says anything to a 
reporter that is not calculated, and Rove's 
purposefulness can also be seen in the details of the 
call. Rove knew he was talking to a reporter, not a 
person authorized to receive classified information. 
Since Cooper called Rove and was put through only 
after the call was screened by a secretary, we can 
infer that Rove made a conscious choice to speak with 
him. Cooper also began the call by identifying 
himself. Finally, Rove provided information on "deep 
background," a term of art which, to a reporter, 
means that the information can be used but the source 
cannot be identified. This fact alone precludes a 
finding that Rove was speaking accidentally or by 
mistake. 

In addition, the prosecution would likely argue that 
there's no real issue on the question of whether 
Rove "disclosed" information. Cooper says that Rove 
told him Wilson's wife was a CIA agent who worked on 
weapons of mass destruction and that it was she, not 
George Tenet or Dick Cheney who was responsible for 
sending Wilson on his mission to Niger. He also says 
that Rove told him the information about Wilson's 
wife was "going to be declassified soon." 
Affirmatively providing information obviously 
constitutes "disclosing" it, as the term is defined 
in the statute. So if the jury accepts Cooper's 
testimony, the issue of whether Rove "intentionally 
disclosed" information is settled. But it could also 
be settled even if the version provided by 
the "sources close to Rove" -- that he simply 
confirmed information Cooper provided -- was accepted 
as accurate. As Rove would certainly know, a 
confirmation by a senior administration official 
conveys information to a reporter and makes it 
available to him for use, even if under slightly 
limited circumstances. Both "conveying" and "making 
available" are terms used to define "disclose" in the 
Intelligence Identities Protection Act. 

Common sense precludes any serious argument that a 
reference to "Joseph Wilson's wife" does not 
constitute an identification, so the jury could 
reasonably infer Rove's knowledge from the nature of 
the information he disclosed. In other words, a jury 
could infer that Rove knew Wilson's wife's status was 
covert and that the CIA was taking affirmative 
measures to conceal her intelligence relationship to 
the government, because he said it was going to be 
declassified soon. Obviously, information does not 
need to be declassified if it is not currently 
classified. That the information is classified means 
that the government has been taking affirmative 
measures to conceal it. 

Rove's revelations about Valerie Plame's specific 
work on weapons of mass destruction, as well as the 
claim that she was responsible for sending her 
husband to Niger, also give rise to the reasonable 
and necessary inference that he had access to 
detailed classified information about her work at the 
CIA. The only commonsense interpretation of the 
comment Cooper imputes to Rove -- "I've already said 
too much" -- is, finally, that he knew he was 
imparting classified information he was not supposed 
to impart. 

Why believe Cooper? As a start, because most of what 
he says about the conversation is not in dispute. He 
is also clearly a man of principle who was willing to 
go to jail to protect his source. He has no motive to 
falsely incriminate anyone, least of all Karl Rove or 
Vice President Cheney's aide Lewis "Scooter" Libby. 
He has clearly been careful to include all the 
details he can recall regardless of their 
implications for either side -- and his account is 
corroborated by writings he made at the time. Perhaps 
most important, Cooper's version of the July 11, 2003 
conversation with Rove makes sense when viewed 
against what we already know of the background of the 
entire case. That context not only supports Cooper's 
testimony, but also strengthens the case that Karl 
Rove had access to and knew that Valerie Wilson was a 
covert agent whose status was classified. 

That is why the jury would likely hear, among other 
things, that Wilson's July 6, 2003 op-ed piece in the 
New York Times, which contradicted the 
administration's story about Saddam Hussein's search 
for yellowcake uranium ore in Niger, catapulted the 
administration into a frenzy of activity which 
appeared to have two overlapping goals. The first was 
the preparation of a CIA response to Wilson's 
revelations; the second, the undermining of Wilson's 
credibility. As New York Times columnist Frank Rich 
has so aptly described it, the eight days between the 
July 6 op-ed and Robert Novak's July 14 column outing 
Valerie Plame were characterized by "mounting 
desperation" on the part of the administration. 

It is likely that only a fraction of what happened 
during that time has been made public, but the 
credible evidence that has been reported indicates 
that senior administration officials Rove and Libby 
were in close contact with each other, as well as 
with the State Department and the CIA, in order to 
carry out their two-pronged attack. The jury would 
likely hear evidence about their e-mail 
communications. The jury would also probably hear 
that, within 24 hours of publication of the Wilson 
piece, Secretary of State Colin Powell and White 
House Press Spokesman Ari Fleischer were seen holding 
a State Department memo requested by Deputy Secretary 
of State Richard Armitage on the day the Wilson op-ed 
appeared; that, when seen with the memo, Powell and 
Fleischer were on Air Force One with President Bush 
and National Security Adviser Condoleezza Rice on the 
way to Africa; that the State Department memo 
contained a paragraph about Valerie Wilson's work at 
the CIA marked "secret"; that on July 8th, Karl Rove 
talked about Valerie Wilson's work at the CIA with 
Robert Novak; that, at about the same time, another 
senior administration official told Robert Novak 
about Valerie Wilson's work at the CIA; that, on July 
12, the day after Rove talked with Cooper, Lewis 
Libby, speaking "on background," told Cooper he "had 
heard" the information about Valerie Wilson's CIA 
status and possible involvement in sending Wilson to 
Niger; that, on the same day, a "senior 
administration official who was not Libby" told 
Washington Post reporter Walter Pincus that "Wilson's 
trip to Niger was set up as a boondoggle by his CIA-
employed wife"; and that, just the day before on July 
11, CIA Director George Tenet had taken the fall for 
the inclusion of the infamous 16 words that, inserted 
in the State of the Union Address, had started the 
whole ball rolling. So once Robert Novak published 
his story outing Valerie Plame and undermining Joseph 
Wilson on July 14, 2003, it would appear that the 
administration had achieved both of its goals. Hardly 
the work of "senior administration officials" who 
know not what they do. 

If charges were brought, it would certainly be in 
light of this background evidence, and more (as they 
say on the infomercials) that a jury would be asked 
to decide whether a violation of the Intelligence 
Identities Protection Act had been proved. That jury 
would, of course, be free to draw whatever reasonable 
inferences it found appropriate based on this chain 
of circumstances. 

Circumstantial evidence? Yes, contrary to popular 
belief, direct and circumstantial evidence have equal 
weight under federal criminal law. So one very strong 
permissible inference from the evidence of the 
administration's post-July 6, 2003 conduct could be 
that, given the damaging nature of the Joseph Wilson 
story and the urgency with which the State Department 
memo had been requested, it is impossible to believe 
that Powell simply tucked it into his briefcase and 
began watching an in-flight movie. Precisely who saw 
it or heard about its contents is not publicly known, 
but it is known that Lewis Libby and Karl Rove had 
been tasked to work with CIA Director George Tenet to 
craft the mea culpa Tenet would deliver on July 11 
taking responsibility for those sixteen words in the 
State of the Union. As has been widely reported, 
their involvement can be proven by evidence of an 
intense exchange of e-mails between the two. It would 
be difficult to work on Tenet's statement without 
knowing about the information in the July 7 memo, as 
well as much other classified information about the 
Wilson trip, so it would not be unreasonable to infer 
that they too had been recipients of the information 
in that memo. 

Whether charges will be brought under the 
Intelligence Identities Protection Act or, if they 
were, what a jury would decide, we cannot possibly 
know. But we do know that it is not a law under which 
guilt is nearly impossible to prove -- as the 
pundits, citing each other, have led us to believe. 
It also bears mentioning that experienced prosecutors 
never underestimate juries. Most juries are like the 
special grand jury described by Matt Cooper: 
thorough, highly-engaged people who are absolutely 
committed to applying the law only to the evidence 
they have heard in court as they are instructed to 
do. They are not easily fooled. They have common 
sense. And they are firmly rooted in the reality-
based community. 



Elizabeth de la Vega has recently retired after 
serving more than 20 years as a federal prosecutor in 
Minneapolis and San Jose. During her tenure, she was 
a member of the Organized Crime Strike Force and 
Chief of the San Jose Branch of the U.S. Attorney's 
Office for the Northern District of California.

This piece first appeared on TomDispatch.com 




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