If "agent" includes "officers," then Plame was a "covert agent" (update: mabye not...)

(Rewritten and edited)

Kevin Drum at the Washington Monthly offers an excellent summary of some of the legal analysis of the Intelligence Identities Protection Act. But I must say that he and others are reading the statute too narrowly.

First, he is concerned that the statute requires proof that one subjectively know the information leaked could be used to harm the US government or help a foreign nation. But the statute merely says one must have "reason to believe [the information] could be used to damage the United States or aid a foreign nation.” (Italics added) Contrary to what Kevin and others may believe, the phrase "reason to believe" is a legal phrase of art and means that a trier of fact (judge or jury) determines whether a reasonable person, not the particular person, could believe a disclosure "could be used to damage the United States or aid a foreign nation."

Fitzgerald recognized this distinction when he said during the press conference:

"(We) need to know at the time that he transmitted the information, he appreciated that it was classified information, that he knew it or acted, in certain statutes, with recklessness."

(Fitzgerald could, however, be worried about the overbreadth of the statute from a First Amendment perspective...It's awfully broad in merely requiring that the information "could" harm US interests or help a foreign power, isn't it?)

But overall, Kevin and another blogger, at Begging to Differ, are on stronger ground in questioning whether Fitzgerald thought he could prove Valarie Plame was a "covert agent" because the term is so narrowly defined in the particular statute. Further, here is what Fitzpatrick stated on the subject in his press conference:

"Let me say two things. Number one, I am not speaking to whether or not Valerie Wilson was covert. And anything I say is not intended to say anything beyond this: that she was a CIA officer from January 1st, 2002, forward.

"I will confirm that her association with the CIA was classified at that time through July 2003. And all I'll say is that, look, we have not made any allegation that Mr. Libby knowingly, intentionally outed a covert agent."

If Fitzpatrick is concerned he did not have enough to show Ms. Plame was a covert agent as defined under the statute, then he should have explained why. Let's first stipulate Plame's position in 2003, which was "an operations officer in the spy agency's directorate of operations--a clandestine service." (See Daily News, October 2, 2003) See also: This October 8, 2003 article from the Washington Post.

Now, let's review the portion of the statute defining the phrase "covert agent" in the statute as it relates to those agents who are US citizens:

"The term “covert agent” means—

(A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency—

(i) whose identity as such an officer, employee, or member is classified information, and

(ii) who is serving outside the United States or has within the last five years served outside the United States; or

(B) a United States citizen whose intelligence relationship to the United States is classified information, and—

(i) who resides and acts outside the United States as an agent of, or informant or source of operational assistance to, an intelligence agency, or

(ii) who is at the time of the disclosure acting as an agent of, or informant to, the foreign counterintelligence or foreign counterterrorism components of the Federal Bureau of Investigation..."

Kevin rightly notes that Plame has apparently, per press reports, resided in the US since 1997. In 2003, that would be six years and therefore, take Plame out of definition "(A)" of the term "covert agent." Boy, must Libby and Rove et al. be happy to know that techincality of five years was in the definition!

I originally thought this morning that subpart (B) could help, but the more I looked at it, the more I realized that the prhase "the foreign counterintelligence or foreign counterterrorism components of the Federal Bureau of Investigation..." means that both "foreign counterintelligence" and "foreign counterterrorism" refer only to the FBI. As Plame did not work for the FBI as far as we know, Fitzgerald likely realized he was a just short of proving liability under that statute--but probably and only because the phrase "covert agent" is so narrowly defined. She was definitely covert in the sense that the information was "classified" and the sense the term "covert" is used outside the particular statute.

There are other problems with the statute too, as I discussed in my original version of my post this morning. The term "agent" is not even defined in the statute. This might not seem like such a big deal at first because we know, in the corporate world, that the president of the company is an officer, agent, and employee at the same time. Why get any more complicated here?

But note the title of the statute is:

"Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources"

Interesting that the statute separates "officers" from "agents" when "officers" are not identified in section 421, which is the substantive portion of the statute describing what is prohibited (outing a "covert agent").

It gets weirder, though, because, while the single word "agent" is not defined, in the same definitions section (section 426), the terms "officer" and "employee" are defined through a reference to other sections of the statutory chapter in which this statute is placed. In neither definition of the terms "officer" or "employee" is the word "agent" used.

So is "agent" merely a person in the field, even though it is not so defined that way? Are we saying that once one becomes an "officer", someone higher in the hierarchy, that person is no longer protected from disclosure? A fair reading of the statute is that "agent" includes "officers."

CONCLUDING THOUGHTS:

As a civil libertarian, I am wary of such acts as these. Not because they are not needed, but because too often these acts are used against unarmed dissenters of official policy, not to stop true criminal acts against one's nation. There is little doubt that if Jane Fonda was caught the way Libby was caught, we'd see no caution on the part of the official establishment in DC in wanting to see her thrown in jail or even executed for treason. This is what Nathan Newman is talking about here.

I haven't had time this weekend to study other acts such as the Espinoage Act of 1917 to see if Libby, Rove et al violated that statute--or any other statute on substantive matters. If Fitzgerald, however, thought the agent protection statute was unduly vague or unconstitutional, he'd have done a public service in saying so. It would provide momentum for a policy discussion to find more effective ways to protect classified intelligence service employees, while safeguarding civil liberties in being able to expose illegal government conduct or dissent from official government policies.

(Rewritten and edited)