Democrats in Congress want a special counsel appointed to investigate and prosecute the administration officials who reportedly blew the identity of covert CIA officer Valerie Plame to columnist Robert Novak, who published it, and to at least six other journalists, who did not.
To them I say, good luck!
No matter who ends up with the case—a special counsel, the Ashcroft Justice Department, or a resurrected Eliot Ness—the biggest problem will be proving leakers broke the law. The statute most frequently cited by folks who think the leakers deserve time in jail is the Intelligence Identities Protection Act of 1982, which was passed to specifically prevent CIA turncoat Philip Agee and his comrades at Covert Action Information Bulletin from publishing the names of U.S. undercover intelligence officers. The language of the law is so specific it should have been called the Stop Philip Agee Forever Act—it wasn't like the Washington Post, the New York Times, or anybody else in the U.S. press was running the names of secret agents on Page One.
The problem with the Intelligence Identities Protection Act is that it doesn't appear to apply to the Novak case. To win a conviction, the law requires, among other things:
1) That the individual has or had "authorized access to classified information that identifies a covert agent." If Novak's administration sources had only unauthorized access to the information about covert officer Plame, learning about her identity and her mission, say, in a hallway conversation from a visiting CIA officer, the law wouldn't apply here. Perhaps they might go after the hypothetical CIA officer, but they'd run in to a slew of other legal problems sketched out below.
2) That in addition to having had authorized access to the information about the covert agent, the individual must have "intentionally" disclosed it to an individual not authorized to receive classified information. This clause protects the government employee or member of Congress who might accidentally blurt out the name and identity of a covert agent. (In 1991, Sen. David Boren, D-Okla., mentioned the name of a CIA station chief as he emerged from a closed-door session.) So, in addition to the other tests, a prosecutor would also have to prove the leaker's intent to blow the agent's cover. This poses a huge problem in the Novak case because the vague language of his column doesn't identify Plame as covert, but as a "CIA operative on weapons of mass destruction." It's plausible that Novak's source didn't know—as we now know—that Plame was "undercover."
3) That the individual knew he was disclosing information that identifies a "covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States." [Emphasis added.] So far, we have no evidence that the United States is taking "affirmative measures" to protect Plame's identity. Anecdotal stories in the press indicate that she's raising 3-year-old twins. The government would have to prove it was actively protecting her identity for a future assignment. This could mean keeping her name out of CIA phone directories; giving her an office off the Langley, Va., campus of the CIA; etc. But Clifford May and others say Plame's identity was well known in some Washington circles. That could argue that the agency wasn't taking affirmative measures to conceal her identity. Plame's husband, Ambassador Joseph C. Wilson IV, told New York Times columnist Maureen Dowd this week that she surrendered her secret identity to him somewhere around the time of their first kiss! If Plame's been sloppy with her identity, should somebody go to jail for leaking it? Last, the individual would have to know the government was taking affirmative measures to protect her identity. If he didn't know that, he'd be free from prosecution.
But what about Robert Novak? The law leaves him in the clear, too, unless he starts routinely disclosing covert agents' identities with the intent to harm U.S. intelligence-gathering capabilities, as the Agee crowd did.
Addendum, Oct. 3, 8:16 p.m. ET: An alert reader e-mailed me a note suggesting that Valerie Plame might not qualify as a "covert agent" under the U.S. Code. The definition Plame would probably fall under is someone "who is serving outside the United States or has within the last five years served outside the United States. ..." As blogger Mark A.R. Kleiman has pointed out, "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."
Covert agents, drop me a line at email@example.com.