Roving justice

Law professor Robert Turner explains the statute that could be used to prosecute Karl Rove -- or anyone else who may be guilty of outing a CIA covert operative.


J.J. Helland
July 20, 2005 1:09AM (UTC)

If it turns out that White House consigliere Karl Rove -- or anyone else for that matter -- is guilty of leaking classified information that led to the outing of undercover CIA operative Valerie Plame, he will be prosecuted under the Intelligence Identities Protection Act, a law intended to prevent the "disclosure of information by persons having or having had access to classified information that identifies a covert agent." As special prosecutor Patrick Fitzgerald's investigation of a possible leak continues, partisans on both sides have sought to spin the court of public opinion on the matter, leading to some confusion as to how the act and some of its provisions apply in the Plame case.

To help clarify the confusion surrounding the Identities Protection Act, Salon asked professor Robert Turner, associate director of the Center for National Security Law at the University of Virginia law school, to explain the law in detail during the course of an interview conducted by telephone and e-mail.

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What exactly is the Intelligence Identities Protection Act?

You need to understand the bill in the context of its history. Back in the '70s some very radical people got started in the business of trying to disclose the names of covert CIA and other intelligence operatives. They were led by a guy named Philip Agee, who worked for the CIA but reportedly had been cashiered while serving in Mexico City. He then went to the KGB at the Soviet Embassy in Mexico City and Cuban intelligence at the Cuban Embassy and offered his services. Pretty soon the group led by Agee put out something called Covert Action Information Bulletin and Counter-Spy, two publications that routinely published the names of people they claimed were CIA, British or other Western intelligence agents. There were some people subsequently thrown out of countries. The most notable case was Richard Welch, the CIA station chief in Greece, who was murdered shortly after his name appeared in one of Agee's publications. Anyway, this upset a lot of people. Congress debated and finally enacted the Intelligence Identities Protection Act [of 1982].

The purpose of the act was very clear. It was to deal specifically with Agee-type problems -- to keep people from intentionally blowing the cover of covert CIA operatives. This act only applies to revealing the names of people who are actually in a "covert billet" [an undercover position], and it requires knowledge by the person revealing the name that the person was in a covert billet.

The Identities Protection Act consists of three key provisions: (a), (b) and (c). What are the differences among the provisions, and what parts of the statute does the prosecutor have to prove when prosecuting someone such as Karl Rove -- or any other potential leaker of classified information?

The statute is contained in Section 421 of Title 50 of the U.S. Code. Provisions (a) and (b) have to do with people who have access to classified information -- such as Karl Rove -- who intentionally reveal the identity of a covert agent. Provision (c) applies to individuals who are engaged in "a pattern of activities intended to identify and expose covert agents" -- which does not apply to Rove (unless he is ultimately found to be part of a broad effort or conspiracy).

In order to convict Rove of violating 421(a) or 421(b), the government would have to prove beyond a reasonable doubt all the following elements: Rove had access to classified information; as a result of that lawful access, he received information identifying Valerie Plame as a covert CIA officer; Plame was, in fact, at the time of his disclosure in a covert position, and the government was taking affirmative measures to conceal her connection with CIA; Rove was aware that the government was taking affirmative measures to conceal Plame's connection with the CIA; Rove disclosed Plame's connection with the CIA to an individual who was not cleared to receive the classified information.

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If Rove got his information about Plame from a journalist and not from a classified source, he is not guilty [under those provisions]. If, as her husband has said, she was not in a covert billet when the disclosure was made, Rove is not guilty, even if he believed she was in such a status. And if Rove knew from a classified source that she worked for the CIA on WMD issues but did not know the government was taking affirmative measures to conceal her relationship with the CIA (and most CIA employees who work on WMD issues are not in a covert status), he is not guilty.

Do all the provisions of the act have to be proved in order for someone to be convicted, or can the person be convicted under just (a), (b) or (c) alone?

A person can be convicted under just one as long as all the conditions specified in that provision apply -- each condition has to be proved beyond a reasonable doubt. For instance, under provision (b), you have to prove that the person actually did reveal either the name or the information that made it easy for someone else to determine the identity. And a key element is that [the leaker] has to have knowledge that the person is in a covert billet, and not just somebody who works at the CIA.

Did Rove literally have to say Plame's name to violate the provision? Or is saying something like, "Oh, that's Wilson's wife" -- which is what Rove reportedly said to Time's Matthew Cooper -- sufficient enough to be in violation?

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Saying "Wilson's wife" is sufficient enough to come under 421(b). [Rove was] providing information that did ultimately identify the person. The key is, did Rove do this with the knowledge that he was intentionally disclosing information identifying such a covert agent? Did he know that she was in a covert position and that the government was taking measures to conceal her connection with the CIA?

I'm a big believer in Occam's razor, that [it's best] to look for the simplest explanations of stuff. I find it almost inconceivable that Rove's motive was to undermine U.S. intelligence in some way. I can easily see a number of settings where somebody who knew a lot about what was going on at the CIA was just trying to help Rove understand the way Wilson got involved in this whole process.

There has been some renewed interest in a June 10, 2003, State Department memorandum that refers to "Valerie Wilson as Mr. Wilson's wife." Is this memo significant to the prosecution's investigation in proving someone "knowingly" outed Plame?

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Without seeing the memo in question I can only guess about its contents, but I can easily envision a memo that would identify her as a CIA employee without mentioning her covert status. If the reference was merely to explain why [Joseph] Wilson was chosen for the [Niger] trip, the details of Plame's own position might well not be important. Also, Rove is a very busy man, and while he certainly might be shown occasional State Department memos, I would think that would be the exception rather than the rule. The special prosecutor has presumably examined the memo in question to determine whether it mentions Plame's covert status. If the memo clearly discloses that Plame was in a covert status, and that statement was factually accurate, then the prosecution would have to prove beyond a reasonable doubt that the memo was delivered to Rove and that he actually read it.

Most CIA employees who work on WMD issues are not in the Directorate of Operations, so her D.O. status would presumably be fairly sensitive. If I were writing the memo in question, I would either not mention her covert status or include a specific reference to that information and emphasize that it was sensitive, so readers would not casually pass on the information to others.

Rep. Henry A. Waxman, the senior Democrat on the Committee on Government Reform, circulated a memo titled "Karl Rove's Nondisclosure Agreement," outlining the legal restrictions against disclosing classified information. Is it in special prosecutor Fitzgerald's purview to file charges under the nondisclosure agreements for government employees?

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If Fitzgerald can prove that Rove learned of Plame's CIA connection from classified information and knew she was in a covert status, it would presumably make more sense to prosecute him for violating a criminal law than to focus on a lesser "breach of contract" claim -- which, presumably, would give the president a reason to punish or dismiss Rove but might not otherwise have criminal penalties. However, if he knew based upon his own access to classified information that Plame worked for the CIA, but was also told that by journalists, one might reasonably argue that saying she "apparently" worked for the CIA in deep background to a journalist was not a violation of his nondisclosure agreement. This is a nuanced issue, but if the fact was already being circulated among journalists, Rove had heard it repeatedly, and he merely said she "apparently" worked at the CIA, one might draw a distinction between repeating facts heard from unclassified sources and telling someone on the basis of access to classified information that a certain fact was true. A lower standard could establish a violation of a nondisclosure agreement that would warrant dismissal, but Bush can dismiss Rove anytime he wishes without specifying "cause."

Could Rove -- or any other potential leaker -- be in violation of the Identities Protection Act if he got this classified information from reporters as opposed to confidential government sources? In other words, can someone still be prosecuted even if he got the classified information regarding Plame's covert status from an unofficial, unauthorized source like, say, Robert Novak?

If it can be shown that Rove received classified information telling him Plame was a "covert agent" and the government was taking affirmative measures to conceal her connection with the CIA, the fact that a journalist also gave him that information would not protect him under the statute. However, last week Wilson said on CNN that his wife was not in a covert status at the time her identity was revealed. And it would surprise me greatly if Rove was given access to classified information about Plame's role at the CIA, because to receive that information officially he not only would have had to have the clearance for that level of sensitive information -- which is quite possible -- but also would have had to have a "need to know" -- which I don't see. More important, the e-mail from Cooper suggests Rove told him Plame "apparently" worked for the CIA in a position dealing with WMD -- and the "apparently" language is far more consistent with the idea that he had been told that fact by one or two reporters than with the idea that he knew her status with certainty based upon official classified information.

There has been some dispute as to whether the government was taking such "affirmative measures" to ensure Plame's covert status. How does this aspect affect the case?

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I would not read a lot into the idea that the CIA ostensibly didn't do much to ensure Plame's covert status. Sometimes when you're trying to protect your sources, you don't want to scream and shout if somebody releases information that could compromise an individual, because you don't want to call attention to something that could be picked up by all the bad guys in the world. It's just like when people try to expose CIA covert operations -- the CIA does not comment. If you get into the habit of saying, "No, that's not true" and someone hits on a real one and you don't say anything, you've confirmed it.

It seems inherently difficult to prove the "United States taking affirmative measures" aspect of the statute, especially because of the covert nature of many of the issues. How does a prosecutor deal with this?

It would be fairly easy for the CIA to submit an affidavit confirming that Plame was in a covert billet without going into a lot of details, and that would probably satisfy the court. But unless Rove said, "Yes, I knew this" or a credible source said "Yes, I briefed him and I emphasized that she was in a covert position," the big hurdle is going to be proving that Rove knew that the government was taking affirmative measures to conceal her identity.

Is information relating to an operative's covert status usually available to someone in Rove's position?

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He would have to have had a "need to know," and my guess is that he didn't have a need to know. The normal principle is that you don't reveal classified information unless there is a need to know that information. Rove's not an idiot, so why on earth -- if he had in fact been cautioned not to reveal the connection -- would he have done it? He would have just set himself up for his enemies.

Could any criminal charges be brought against a person who may have casually remarked to Rove, "Oh, by the way, that's Joe Wilson's wife and she's at the CIA"?

I suspect no charge other than possibly negligence, because it would not be a violation of the statute to reveal that information to Rove. The information is not being made "public," which is the operative language in the statute. But you could say that such a person should have anticipated that Rove might say something and her name might come out, in which case he should have cautioned Rove not to do this.

It seems as if the Identities Protection Act was created with a very high standard for conviction?

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The Identities Act is supposed to be very narrow.

Why?

I think Congress was trying to satisfy the ACLU types who were saying, "Hey, you're going to chill First Amendment rights with this." There is a specific reference that this [a violation] had to be part of a plan to disclose identities for the purpose of undermining U.S. intelligence. The statute is very carefully worded, so I think the only thing the prosecutors are likely to come up with is that somebody tried to cover up something, misdirected them, wasn't fully candid, or lied to them in their investigation. That of course sometimes brings down presidents.

How difficult would it be for Fitzgerald to prove that the disclosure -- by Rove or anybody else -- was intentional?

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I think it would be very hard. You would have to have somebody who actually did brief him and said something like, "Yes, and I warned him that she was a covert operative and that if he mentions her he'll violate the statute and be a felon." My strong assumption is that this was an inadvertent disclosure that was done just as a means to fill in the blanks on how a certain event occurred. My own guess is that the prosecution does not have a case against Rove under the Intelligence Identities Protection Act but, rather, a case against somebody who lied or covered something up during the investigation.

If Fitzgerald is unable to charge anybody under the act, are there lesser charges that could be filed?

You are moving beyond my special expertise, but there are federal statutes making it a felony to make a materially false statement under oath to the government, and other statutes criminalizing materially false statements even when not made under oath. But all elements in a criminal prosecution must be proved beyond a reasonable doubt. Lower standards of proof -- for example, showing "by a preponderance of the evidence" or "by clear and convincing evidence" -- apply to noncriminal legal actions. But it is my impression that Fitzgerald is charged with examining criminal misconduct.

There are also statutes that make it a crime to "aid and abet" someone else in the commission of a crime, to be an accessory before or after the fact to criminal misconduct, and to conspire to commit a crime even when the crime is never actually committed. But all criminal statutes require proof of each element of the offense beyond reasonable doubt.

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Section 422 [of the U.S. Code] prohibits prosecution of someone in the White House who did not have access to classified information. But my guess is that even the people in the press office have such access. There might be a question of whether "authorized access to classified information" should be interpreted to mean having authorized access to the specific kind of information involved in this case. For example, if Plame's relationship with the CIA was classified "top secret," and someone in the press office had only a "secret" clearance, one might argue that that person could not be part of a "conspiracy" to release her identity. I honestly don't know how a court would handle that.

The reason I ask is because, until very recently, the White House and everyone in Rove's inner circle had said that Rove wasn't involved at all.

There's another provision under Title 18 [of the U.S. Code] that says making a materially false statement under oath is a felony. And so it's conceivable that the prosecution has somebody on something like that. But this statute seems to intentionally rule out such an action. It says that "no one should be subject to prosecution by virtue of Section 2 or 4 of Title 18," the normal conspiracy statutes. Congress was trying to avoid broadening this to cover conspiracies, but that doesn't mean that if somebody in the White House intentionally lied or made a materially false statement under oath to the special prosecutor, it wouldn't be covered by the special prosecutor's own law.

Based on everything we know to this point, do you think there is enough evidence to convict Rove?

Not on the basis of what I know. Maybe the prosecution has a lot of information I don't know about, but from what I've seen there is no reason to assume that Rove knew Plame was in a CIA position which the agency was trying to hide. Without that knowledge, he's innocent.


J.J. Helland

J.J. Helland is Salon's editorial fellow in New York.

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