The Intelligence Identities Protection Act of 1982

I have heard both those on the left and the right say that it is too difficult to bring charges against Rove et. al. in the Plame case using the Intelligence Identities Protection Act of 1982. I'm not a lawyer so I believed them. Well former federal prosecutor Elizabeth de la Vega says they are wrong and explains why in Exposing the Plame case mistake.

This 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 receive 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.

The key word here is "intentionally".

There is little case law on the statute itself. But there's a wealth of case law interpreting the term "intentionally" because it is a term of art found in nearly every criminal statute. Its meaning is well-established and straightforward. It simply means "on purpose, not by mistake or accident." So if someone runs off the bus and accidentally leaves behind papers that expose an undercover CIA agent's identity, no crime has been committed because Element 2 can't be proved.

Nowhere does this statute require proof that the defendant "wished to harm" an undercover agent or jeopardize national security. The reason why someone disclosed the information -- whether for revenge, to prevent the publication of a story or to harm the U.S. -- is an issue of motive, not intent.

And there is more.

There are two other elements in the statute that relate to state of mind: The prosecutor has to prove that the defendant knew the information he or she was disclosing "identifies" the covert agent and that the U.S. was taking affirmative measures to conceal that agent's intelligence relationship to the U.S.

What does "identify" mean in this statute? Well, there is no specific definition and no case law to look to. So you turn to the third rule of statutory construction, which simply says that you apply the everyday meaning of the word. Perhaps, in a through-the-looking-glass world, someone could decree that to identify means to "name" and nothing else, but the statute doesn't say that; nor is that how ordinary people would use the word. There are obviously myriad ways to identify a person besides naming them, but unless a man were a polygamist, a reference to his wife would certainly suffice.

It would appear that a competent prosecutor should have no problem using the Intelligence Identities Protection Act of 1982 to bring charges against one or more of the players.