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Plame Leak Not a Crime?

By Jeralyn, Section Valerie Plame Leak Case
Posted on Thu Jan 01, 2004 at 07:39:34 PM EST
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Looks like our Valerie Plame theory--that Ashcroft recused himself so that fewer people will scream whitewash when the Justice Department announces it can't prove a crime and no one gets indicted --is getting more play.

The Justice Department investigation into the leak of a CIA agent's identity could conclude that administration officials disclosed the woman's name and occupation to the media but still committed no crime because they did not know she was an undercover operative, legal experts said this week.

"It could be embarrassing but not illegal," said Victoria Toensing, who was chief counsel of the Senate Select Committee on Intelligence when Congress passed the law protecting the identities of undercover agents.

Actually, we don't think the Justice Department will claim that the White House officials didn't know Plame was an undercover agent. We think the excuse will be that the officials inadvertently mentioned her name and undercover capacity during a conversation about something else and therefore it was not an "intentional" disclosure.

Here is the law at issue: The Intelligence Protection Act (50 U.S.C. Sec. 421). Different sections of the act provide for penalties ranging from three years to ten years. There are three ways to violate the law:

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 United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than ten years, or both.

or

Whoever, as a result of having authorized access to classified information, learns the identify of a covert agent and 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 United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than five years, or both.

or

Whoever, in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, discloses any information that identifies an individual as a covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such individual and that the United States is taking affirmative measures to conceal such individual's classified intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than three years, or both.

So we think the exuse for no indictment will be that the Justice Department says it can't prove a crime because it can't prove the "intentional" element. And with Ashcroft out of the way, the Administration thinks it will have an easier time of convincing the public there was no whitewash.

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