Editore"s Note
Tilting at Windmills

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October 29, 2005
By: Kevin Drum

WAS EXPOSING VALERIE PLAME A CRIME?....PART 2....Here's a bit of legal blogging on the subject of outing Valerie Plame. To start us off, Publius at Legal Fiction reminds us that judges interpret the law based on the most reasonable reading of a statute, not on a merely plausible reading. On that basis, he argues that Scooter Libby probably didn't violate a reasonable reading of the Espionage Act:

The real problem is element #4 reason to believe [the information] could be used to damage the United States or aid a foreign nation.....When you read the entire statute, you get the clear sense that this statute was meant to criminalize the act of disclosing information to people potentially hostile to America or to those who wanted to harm or damage our national security....Im not a big Judy Miller fan, but I doubt she wanted to damage the United States with this information.

This fits fairly well with Patrick Fitzgerald's statement yesterday about the Espionage Act: "That is a difficult statute to interpret....there are a lot of interests that could be implicated in making sure that you picked the right case to charge that statute."

So how about the Intelligence Identities Protection Act, the law that specifically criminalizes the outing of a covert agent? Contrary to conventional wisdom, Publius suggests that a conviction would be more likely under IIPA than under the Espionage Act. There are six elements to IIPA, including the requirement that the outed agent be covert, and:

Reading the indictment, Libby comes pretty damn close to meeting all six. My guess is that its the covert that kept Fitzgerald from bringing an indictment under the IIPA....Libbys outing of Plame is precisely the kind of conduct that the IIPA was intended to deter and punish. Libbys conduct is thus within the statutory essence of the IIPA. And based on what I read today, its pretty amazing Fitzgerald didnt ding him on it.

However, as Steve at Begging to Differ reminds us, "covert" is a very specifically defined term for the purposes of IIPA:

A present or retired officer or employee of an intelligence agency...whose identity as such an officer, employee, or member is classified information, and who is serving outside the United States or has within the last five years served outside the United States.

Here's what Fitzgerald said about that yesterday:

I am not speaking to whether or not Valerie Wilson was covert....I will confirm that her association with the CIA was classified at that time through July 2003. And all I'll say is that, look, we have not made any allegation that Mr. Libby knowingly, intentionally outed a covert agent.

So her identity was classified, but had she served outside the United States during the five years prior to her outing in 2003? She was based in Brussels in early 1997, but as Vanity Fair reported last year:

In 1997, Plame moved back to the Washington area, partly because...the C.I.A. suspected that her name may have been on a list given to the Russians by the double agent Aldrich Ames in 1994.

So for the six years previous to 2003, Plame was based in the U.S., not overseas. And legally, as far as IIPA is concerned, that means she wasn't covert.

And that's the most likely reason that Fitzgerald didn't indict anyone for the actual act of leaking Valerie Plame's name. As reckless as it was and Fitzgerald made it crystal clear that he did think it was reckless he probably decided on technical grounds that he wouldn't have been able to successfully win a conviction under either of the applicable statutes.

Kevin Drum 7:11 PM Permalink | Trackbacks

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