THE PLAME AFFAIR, THE STATUTES, AND WHISTLEBLOWING. I continue to find it mystifying why Democrats are getting so excited about the Plame affair. Here are a few new ideas,(A) on the necessary intent for a leak to be criminal, (B) on using anti-leak statutes to punish whistleblowers, and (C) on Mr. Wilson's role in revealing intelligence information.
(A) Here is the key part of the statute, with bits boldfaced that I want you to notice :
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.
[Intelligence Identities Protection Act of 1982 (50 U.S.C. 421...)]
(a) Disclosure of information by persons having or having had access to
classified information that identifies covert agent
It has been much noted that Mr. Novak is exempt, because he is not the one who had
authorized access to the information. What is less noted is that this might well let
the White House leaker off the hook too. My guess is that somebody in the White House
phoned someone in the CIA and got, unauthorized, the information that Mrs. Wilson was
part of the plot to get Mr. Wilson to tell the information that Saddam was not
developing nuclear weapons. If so, it is the CIA person, not the White House person,
who is in trouble.
Equally important: note that the statute requires the leaker to know that the agent is covert, in the sense of the CIA taking affirmative measures to conceal his relationship with the CIA. If the White House leaker didn't know that Mrs. Wilson was covert, he is safe, even if she really is covert (which we don't know yet).
(B) Suppose Mrs. Wilson really was covert, and the leaker knew this. It might still be appropriate for the Justice Dept. to use prosecutorial discretion not to prosecute if the leaker is a whistleblower, performing a useful public service, and the damage to intelligence is nil or small.
First, consider a hypothetical. Suppose Covert Agent Smith is doing domestic political assassinations on behalf of the CIA. Someone inside the CIA doesn't like this, and tells people in the Justice Department (or the press, if you like). That whistleblower has violated the letter of the anti-leak statute. But he should not be prosecuted.
Second, the current case. Anti-Administration people within the CIA, including Mrs. Wilson, engage Clinton operative Mr. Wilson to go on a pretend fact-finding mission to Niger so they can forward misleading intelligence to the White House. Someone inside the CIA doesn't like this, and tells the White House.That whistleblower has violated the letter of the anti-leak statute. But he should not be prosecuted, unless revealing Plame's identity causes significant intelligence damage.
(C) If you think about it, what is the key revelation in this story? It is Mr. Wilson's admission in his New York Times op-ed that he worked for the CIA. The statute does specifically exempt covert agents from prosecution if they reveal their own status. But the same moral arguments against leaks apply to Wilson's leak about himself. His leak alerts foreign intelligence services that they should check all his associates, and especially anybody seen with him in Niger. They should of course check on his wife, whose name is listed in his Who's Who entry, and whose supposed employer can be straightforwardly discovered by looking at records of her political contributions, especially if they wonder why the Bush Administration would choose somebody as hostile to themselves as Wilson for the mission. So it is possible that Wilson is even liable under the statute for "outing" his wife. Look back at the statute. Did Wilson disclose "any information identifying such covert agent" when it comes to his own wife? Revealing his own CIA connection comes pretty close. The following, from 50 US 426, is what determines whether Mrs. Wilson was covert.
(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; or
(B)
a United States citizen whose intelligence relationship to the United States is
classified information, and -
(i)
who resides and acts outside the United States as an agent of, or informant or source of
operational assistance to, an intelligence agency, or
(ii)
who is at the time of the disclosure acting as an agent of, or informant to, the foreign
counterintelligence or foreign counterterrorism components of the Federal Bureau of
Investigation; or
(C)
an individual, other than a United States citizen, whose past or present intelligence
relationship to the United States is classified information and who is a present or
former agent of, or a present or former informant or source of operational assistance
to, an intelligence agency.
The term ''covert agent'' means -
I suppose (A) would be her classification, if she is covert. [
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