Was revealing Valerie Plame Wilson’s Identity a crime?

Revealing the identity of a covert CIA officer appears to be in violation of the Intelligence Identities Protection Act of 1982, codified as 50 U.S.C., Section 421 (*):

Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources:

(a) Disclosure of information by persons having or having had access to classified information that identifies covert agent

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

United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States, shall be fined not more than $50,000 or imprisoned not more than ten years, or both.

That language would seem to apply squarely to revealing Valerie Plame Wilson’s identity. Representative Rob Simmons (R.-CT), himself a former CIA official, asserted to The Hill (*) that such revelations are against the law only if they form part of a pattern. I can’t find anything in the law that says that, but perhaps I haven’t looked in the right place. (Rep. Simmons’s eagerness to offer an interpretation that would legalize disclosing the identity of an undercover CIA officer may suggest his concern that some of his political allies might just have done so; otherwise you wouldn’t expect to find a former spook defending the practice of outing spooks.)

However, whether Valerie Plame Wilson was a “covert agent” for the purposes of the statute is less clear, and may depend on the definition of “service outside the United States.”

Sec. 426 (*)

The term “covert agent” means —

(A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency –

(i) whose identity as such an officer, employee, or member is classified information, and

(ii) who is serving outside the United States or has within the last five years served outside the United States;

Whether someone whose duty station was in the U.S. but traveled abroad on intelligence business counts as “serving abroad” isn’t obvious from the text. No one has yet published any information about Valerie Plame Wilson’s postings or travels.

A note on language: the act uses “agent” the way most of us do, to encompass employees of intelligence agencies as well as non-employees who gather information for them. But in the language used by the intelligence community, and about it by those in the know, a CIA employee involved in gathering information covertly is always an “officer,” an “agent” is someone on the CIA payroll who gives secret information to an officer. (Previous posts in this thread have confounded that distinction.)

Today’s developments:

The Hill, one of the two newspapers covering Congressional affairs from the perspective of the people who work there (its older competitor is Roll Call, has an extended story (*) on Congressional reaction to the affair. The MinuteMan has a commentary (*). Glenn Reynolds finally notices the story, with a well-deserved pointer to the MinuteMan (*). Glenn, whose silence I have been criticizing, expresses a sentiment I fully agree with: “My sense on this story, and the underlying matter, is that there’s a lot more going on than meets the eye. Usually I have some idea what that might be, but this time I don’t.”

Update Thanks to experts at the Open Society Institute and the Federation of Amerian Scientists, I can report that the legal loophole Rep. Simmons tried to create for whoever leaked Valerie Plame Wilson’s name to Robert Novak exists only in Simmons’s imagination. The statute unconditionally forbids revealing the name of a covert agent on the part of anyone who learns about it in the course of official duties; a “pattern” is an element of the crime only for a non-official person, such as a journalist. The idea was to cover the systematic efforts of Phillip Agee to unmask CIA officials, without covering ordinary journalism. So Novak is off the hook, but the senior officials aren’t. I hope someone asks Simmons why he was so eager to legalize blowing CIA officers’ covers.

Thread starts here

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: Markarkleiman-at-gmail.com