Tuesday, August 16, 2005

Bob Dole on Rovegate

Bob Dole does his best to go to bat for in his opinion piece today in the New York Times.

He argues, as one of the Intelligence Identities Protection Act's sponsors, that the law was purposely framed very narrowly:
I am also greatly concerned about Judith Miller's situation because she has been incarcerated as a result of an investigation into possible violations of the Intelligence Identities Protection Act of 1982, of which I was a sponsor. The law was intended to protect covert intelligence operatives whose lives would be endangered if their identities were publicly disclosed. We were particularly concerned about people like the notorious Philip Agee, a former C.I.A. officer who systematically exposed the agency's covert operatives.

Thus the act was drafted in very narrow terms: our goal was to criminalize only those disclosures that clearly represented a conscious and pernicious effort to identify and expose agents with the intent to impair America's foreign intelligence activities.
Not surprisingly, there has been only one prosecution under the act since it was passed.

That may have been the goal of the drafters, but this does not reflect the requirement in the statute. First though, let's look at Bob Dole's argument.

To analyze the issue using Bob Dole's words, don't Karl Rove's actions in confirming Valerie Wilson's identity as a CIA operative (to Novak and Matthew Cooper) have the same effect as actions taken by "...people like the notorious Philip Agee, a former C.I.A. officer who systematically exposed the agency's covert operatives"? What is the difference?

Aren't Rove's actions capable of fitting within Bob Dole's characterization of "disclosures that clearly represented a conscious and pernicious effort to identify and expose agents with the intent to impair America's foreign intelligence activities"? The political smearing of an opponent by disclosing the identity of his CIA wife is a conscious and pernicious effort to identify and expose an agent. That surely is true.

What Bob Dole gets wrong is the latter part of his statement of what constitutes an offence here, on the issue of intention. A disclosure will only be an offence if it has "...the intent to impair America's foreign intelligence activities" according to Dole. A former federal prosecutor of 20 years experience, however, wrote this on the issue of intent under that statute this past weekend - and this is worth reading:
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.

Thus, there is no requirement that the offender have "...the intent to impair America's foreign intelligence activities."

Dole also perpetuates one of the Republican talking points on the statute, the requirement that the government be taking "affirmative measures" to protect the agent and that the leaker must be aware of this:
With the facts known publicly today regarding the Plame case, it is difficult to see how a violation of the Intelligence Identities Protection Act could have occurred. For example, one of the requirements is that the federal government must be taking "affirmative measures" to conceal the agent's intelligence relationship with the United States. Yet we now know that Ms. Wilson held a desk job at C.I.A. headquarters and could be seen traveling to and from work. The journalist Robert D. Novak, whose July 14, 2003, column mentioned Ms. Wilson, using her maiden name, and set off the investigation, has written that C.I.A. officials confirmed to him over the telephone that she was an employee before he wrote his column.

So once again, in the eyes of the Republican faithful, the CIA referred this to the Justice Department for no reason, apparently. I will expend no more time on this point except to say that if Rove was exposed to the classified State Department memo, then he will likely meet the requirement on this aspect.

What I would add to all of this is that if there are grounds to believe that Rove falls anywhere near meeting the statute's standard, the case should be brought. Let it be a test case for pernicious political smearing that outs a CIA agent and harms national security. It is equally repugnant to the systematic exposure referred to by Bob Dole.