Dark Bilious Vapors

Mark A.R. Kleiman makes an excellent argument that the crime that Karl Rove should be indicted for is not a violation of the Intelligence Identities Protection Act, but rather a violation of the Espionage Act (and that there's some affirmative evidence in the public record that an indictment under the Espionage Act might well be forthcoming):

But it seems to me that the Left Coaster has allowed itself to be taken in by the most fundamental piece of GOP spinning: that if Rove didn't violate the Intelligence Identities Protection Act, he's in the clear legally.

The elements of a crime under the IIPA are extremely demanding; one of its drafters has been quoted as saying that the law was written so as to be "hard to break." The elements are: (1) authorized access to classified information, (2) learning the identity of a covert agent (3) intentional disclosure of information identifying the agent to (4) an individual not authorized to receive classified information (5) knowledge that the information identifies a covert agent and (6) knowledge that the United States is taking "affirmative measures" to conceal the agent’s role. For the purposes of the bill, someone is a "covert agent" only if he or she has "served overseas" within the previous five years, creating an effective seventh element.

How likely is it that Rove could be proven to have known that the United States was still taking "affirmative measures" to conceal Plame's identity? Not very, I'd say.

But Rove's conduct certainly meets the far less demanding elements of the Espionage Act: (1) possession of (2) information (3) relating to the national defense (4) which the person possessing it has reason to know could be used to damage the United States or aid a foreign nation and (5) wilful communication of that information to (6) a person not entitled to receive it.

Under the Espionage Act, the person doing the communicating need not actually know that revelation could be damaging; he needs only "reason to know." Classification is generally reason to know, and a security-clearance holder is responsible for knowing what information is classified.

Nor is it necessary that the discloser intend public distribution; if Rove told Cooper -- which he did -- and Cooper didn't have a security clearance -- which he didn't -- the crime would have been complete.

And to be a crime the disclosure need not be intended to damage the national security; it is only the act of communication itself that must be wilful.

It's also a crime to "cause" such information to be communicated, for example by asking someone else to do so.

Open and shut, I'd say.

Judge Hogan told Judith Miller that the disclosure of information to her, and her potential use of it, were crimes. That couldn't have been true under the IIPA, since IIPA applies only to officials, not journalists, except where the journalist has a pattern of exposing agents' identities. It would be true under the Espionage Act. Ergo, the use of that statute must be in contemplation.

Len on 07.14.05 @ 12:57 PM CST