The Plame Game:
    No, it’s not all about
    the Intelligence Identities Protection Act

Rove probably can’t be proven to have violated IIPA. So what? The case against him under the Espionage Act looks like a laydown.

The Left Coaster has a nice knock-down of the basic GOP talking points on the Rove/Plame affair. Notice how quickly the Republicans have moved to define deviancy down: now it’s perfectly OK for Rove to have wrecked a CIA officer’s career, exposed her assets to God-knows-what horrible treatment, and deceived his colleagues and the public for two years about his involvement in revealing Plame’s identity, as long as he managed to skirt around actually violating the law in any way that can be proven in court.

But it seems to me that the Left Coaster has allowed itself to be taken in by the most fundamental piece of GOP spinning: that if Rove didn’t violate the Intelligence Identities Protection Act, he’s in the clear legally.

The elements of a crime under the IIPA are extremely demanding; one of its drafters has been quoted as saying that the law was written so as to be “hard to break.” The elements are: (1) authorized access to classified information, (2) learning the identity of a covert agent (3) intentional disclosure of information identifying the agent to (4) an individual not authorized to receive classified information (5) knowledge that the information identifies a covert agent and (6) knowledge that the United States is taking “affirmative measures” to conceal the agent’s role. For the purposes of the bill, someone is a “covert agent” only if he or she has “served overseas” within the previous five years, creating an effective seventh element.

How likely is it that Rove could be proven to have known that the United States was still taking “affirmative measures” to conceal Plame’s identity? Not very, I’d say.

But Rove’s conduct certainly meets the far less demanding elements of the Espionage Act: (1) possession of (2) information (3) relating to the national defense (4) which the person possessing it has reason to believe could be used to damage the United States or aid a foreign nation and (5) wilful communication of that information to (6) a person not entitled to receive it.

Under the Espionage Act, the person doing the communicating need not actually believe that revelation could be damaging; he needs only “reason to believe.” Classification is generally reason to believe, and a security-clearance holder is responsible for knowing what information is classified.

Nor is it necessary that the discloser intend public distribution; if Rove told Cooper — which he did — and Cooper didn’t have a security clearance — which he didn’t — the crime would have been complete.

And to be a crime the disclosure need not be intended to damage the national security; it is only the act of communication itself that must be wilful.

It’s also a crime to “cause” such information to be communicated, for example by asking someone else to do so.

Open and shut, I’d say.

Judge Hogan told Judith Miller that the disclosure of information to her, and her potential use of it, were crimes. That couldn’t have been true under the IIPA, since IIPA applies only to officials, not journalists, except where the journalist has a pattern of exposing agents’ identities. It would be true under the Espionage Act. Ergo, the use of that statute must be in contemplation.

(In addition, we know that the CIA made a criminal referral to the Justice Department in the late summer of 2003. That must have reflected a determination by someone in the CIA General Counsel’s shop that a crime had been committed, if not under IIPA then under the Espioage Act. Note also that a certain George W. Bush said two years ago that the disclosure of Plame’s identity was “a criminal action.”)

Moreover, if Rove told Bush, or even McClellan, “I didn’t discuss Valerie Plame with anyone,” he violated 18 U.S.C. 1001, the law against making false statements to officials. That would still be true even if he managed to skirt around the truth, using misleading language such as “I never revealed her name” as part of a “scheme” to “cover up” a “material fact.”

I’d say it’s virtually certain that Rove committed one or more felonies, highly probable that he will be indicted, and more likely than not that he will be convicted. By pretending that only the IIPA is in play, the Bushites are setting the stage for denouncing Patrick Fitzgerald as a “runaway prosecutor” when he nails Rove for espionage and false statements.

Above corrected to fix an error caught by an alert reader. Original post had “reason to know,” not the correct “reason to believe.” “Reason to believe” is actually a weaker requirement, since it’s possible to have “reason to believe” (but not “reason to know”) something that is not the case. So a prosecutor wouldn’t have to show that the information revealed could actually have been used to damage the United States, only that the defendant had “reason to believe” that the information was potentially damaging.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: