Plame Investigation...

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.

(to read the rest, click the link below)
http://www.tomdispatch.com/index.mhtml?emx=x&pid=11747

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