Update [2005-8-13 17:54:24 by Armando]: From the diaries by Armando. How do you prove criminal intent? By direct and circumstantial evidence beyond a reasonable doubt. I am not a criminal lawyer, but proving intent is done in the same manner in civil cases, except the burden of proof is preponderance of the evidence. In certain civil actions, for example, proving an antitrust conspiracy, the SCOTUS has created artificial evidentiary burdens for "policy" reasons. Indeed, it is my view that it is easier to be convicted of criminal antitrust violations than be found liable for some civil antitrust violations. So the notion that it will be difficult to prove intent always rang false to me. This diary discusses this fact in detail quite effectively. Is Rove Toast? Who knows. But a good diary.
Which nail to hang Rove, Libby, and the rest of the cabal on? On the leak itself, that is, as opposed to the cover up, which is a crime unto itself (lest we forget). Elizabeth de la Vega at
TomDispatch.Com and in an
op-ed in the LA Times lays down the case for the Intelligence Identities Protection Act. Read on... (
nerd alert: I'm adding a bonus discussion - TraitorGate for philosophy nerds!)
The debate has been raging over the
Intelligence Identities Protection Act of 1982 vs. section 793 of the
Espionage Act of 1917.
John Dean famously made the case for the Espionage Act; a recent diary by
seesdifferent argues to the same effect. A few weeks ago, an excellent diary by
davidgmills laid out the case for the Intelligence Identities Protection Act. Now Elizabeth de la Vega at
TomDispatch.Com and in an
op-ed in the LA Times drives home the same points David did, in a crisp and quite forceful fashion.
(If ever you get lost in the Plame Affair jungle, I recommend the comprehensive and as always up-to-the-minute Wikipedia summary.) Who's Elizabeth de la Vega?
ELIZABETH DE LA VEGA recently retired after more than 20 years as a federal prosecutor in Northern California. A longer version of this article is appears on www.TomDispatch.com
I've never heard of her, but I swear I'll remember her name now. But let's begin at the beginning. There appears to be little doubt that the Plame leak should be prosecuted under the Intelligence Identities Protection Act (IIPA) in an ideal world, as this is exactly the kind of case IIPA was designed for. In a nutshell, IIPA 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 received 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 distractors of an IIPA prosecution point to the difficulties of proving that Plame's identity as a covert agent was leaked, that it was leaked knowingly, and that it was leaked intentionally. Says Rove apologist Christopher Hitchens:
OK, then, how do the opponents of regime change in Iraq make my last sentence into a statement of criminal intent and national-security endangerment? By citing the Intelligence Identities Protection Act of 1982. This law, which is one of the most repressive and absurd pieces of legislation on our statute book, was a panicky attempt by the right to silence whistle-blowers at the CIA. In a rough effort to make it congruent with freedom of information and the First Amendment (after all, the United States managed to get through the Second World War and most of the Cold War without such a law), it sets a fairly high bar. You must knowingly wish to expose the cover of a CIA officer who you understand may be harmed as a result. It seems quite clear that nobody has broken even that arbitrary element of this silly law.
Now watch Elizabeth de la Vega hit'em out of the park one by one. On the question of leaking Plame's identity as a covert agent:
What then 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 -- as in Karl Rove's identification of "Wilson's wife" in his conversation with Time reporter Matt Cooper -- would certainly suffice to direct the listener to a single, specific person.
Rove and Libby revealed Plame's identity as a CIA agent, and Plame was an undercover agent. There is an interpretation of the law under which it doesn't necessarily matter whether the information that Plame was, in fact, an undercover agent was disclosed. (For philosophy nerds: we're talking here about the distinction between de dicto and de re interpretations, one of the key problems of modern philosophy. Oh to be a philosophy teacher these days and be able to use Plamegate as an illustration :-)) The law isn't clear in this regard, but it is certainly a reasonable interpretation that if Rove and Libby abused their access to classified information to leak Plame's identity and that led to a "burning" of Plame and her cover operation, this is precisely what IIPA was designed to prevent.
But - you don't have to rely on a philosophical interpretation of the law in this case. It get's better (this part only on TomDispatch - emphasis mine):
Cooper says that Rove told him Wilson's wife was a CIA agent who worked on weapons of mass destruction and that it was she, not George Tenet or Dick Cheney who was responsible for sending Wilson on his mission to Niger.
He also says that Rove told him the information about Wilson's wife was "going to be declassified soon."
<snip>
Common sense precludes any serious argument that a reference to "Joseph Wilson's wife" does not constitute an identification, so the jury could reasonably infer Rove's knowledge from the nature of the information he disclosed. In other words, a jury could infer that Rove knew Wilson's wife's status was covert and that the CIA was taking affirmative measures to conceal her intelligence relationship to the government, because he said it was going to be declassified soon. Obviously, information does not need to be declassified if it is not currently classified. That the information is classified means that the government has been taking affirmative measures to conceal it.
This is a fact that I had actually missed in the previous discussion - Rove even indicated to Cooper that Plame's identity was classified! (He gave another hint when he said, as Cooper suggests, "I've already said too much").
Now on to the question of intent:
The word "intentionally" is not defined in the statute, so you have to turn to the second rule of statutory construction, which is to see if it is defined or interpreted in applicable case law. 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 proven. On the other hand, if someone were speaking purposefully, as opposed to, say, drunkenly popping off at a bar, Element 2 would be satisfied.
Nowhere does this statute require proof that the defendant "wished to harm" an undercover agent or jeopardize national security. Why someone disclosed the information -- whether to prevent the publication of a story or to harm the U.S. -- is an issue of motive, not intent.
Merely semantics, you say? In criminal law, it's nonetheless a key distinction. Motive is why someone acts; intent is the person's purposefulness while doing so. If you accidentally take home your neighbor's Gucci bag from the block party, there`s no crime because you didn`t act intentionally. (You do have to give it back, though.) If you grab your neighbor`s bag on purpose, you`ve acted intentionally and you could be guilty of theft. It matters not a whit whether your motive was to get revenge on your neighbor for making too much noise or to get extra cash to hand out to the poor. Evidence of a bad motive is usually admitted as background in the proof of a criminal case, but it is almost never an element of the crime; and evidence of a good motive is usually not a defense once the intent specified in the statute is proven.
Of course Rove and Libby's aim wasn't to burn Plame - their goal was to discredit her husband. But that is perfectly immaterial under the law. What matters is that they acted on purpose when they revealed Plame's identity.
Case closed - Rove is toast. Or as de la Vega puts it:
Whether charges will be brought under the Intelligence Identities Protection Act or, if they were, what a jury would decide, we cannot possibly know. But we do know that it is not a law under which guilt is nearly impossible to prove -- as the pundits, citing each other, have led us to believe. It also bears mentioning that experienced prosecutors never underestimate juries. Most juries are like the special grand jury described by Matt Cooper: thorough, highly-engaged people who are absolutely committed to applying the law only to the evidence they have heard in court as they are instructed to do. They are not easily fooled. They have common sense. And they are firmly rooted in the reality-based community.