In the last few weeks, the media and others have been questioning whether Karl Rove and others have committed a crime under the Intelligence Identities Protection Act [IIPA], sometimes referred to as the “outing” statute. Many reporters and Republican partisan pundits claim that legal experts seem to agree that the IIPA has not been violated. The IIPA’s detractors claim that a case cannot be made for its violation because the proof required of the individual elements of the IIPA present a very high bar for the prosecution. Even Democratic partisans seem to concede that it is likely the IIPA has not been violated. This writer wonders why so many people seem to have summarily concluded the IIPA does not apply to what is (many would say finally) becoming a national scandal.
Despite the national implications of the IIPA at this moment, there so far has been no diligent or thorough analysis by any legal scholar of the elements of this crime or of the application of the known facts to the elements of this crime. Most analyses to date have been cursory and faulty. When the elements of this federal crime are properly analyzed, the IIPA will likely become a very serious hammer for the prosecution. Rove and others and their lawyers better beware.
The known facts of the case will be applied to each element of the IIPA, and show why Rove and others need to be genuinely concerned about having violated the IIPA.
Factual Background of the National Scandal
This national scandal begins with President Bush's January 2003 State of the Union Address, in which the President stated: “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” The implication of the now infamous “sixteen words” was that Saddam Hussein was attempting to acquire nuclear capability and that he posed an eminent threat to the United States. In March 2003, the United States initiated military action against Iraq. No Weapons of Mass Destruction were ever found. No evidence of any attempt by Saddam Hussein to reconstitute a nuclear program has ever been found.
But shortly after the initiation of the US’s military action, when it began to look like no WMDs would be found, Joseph Wilson, a former US ambassador, authored an op-ed essay in The New York Times in which he accused the Bush administration of "exaggerating the Iraqi threat" in order to justify war. The bulk of Wilson's July 6, 2003 op-ed dealt with a trip he made to Niger in February of 2002. In this op-ed, Wilson stated that he had been sent to Niger on behalf of the CIA to investigate the possibility that Saddam Hussein had attempted to buy enriched uranium. Wilson had concluded at the end of his investigation that rumors and documents suggesting that Hussein was attempting to acquire uranium from Niger were false and that he had reported his findings to the CIA.
It was Wilson’s contention that the sixteen words in the State of the Union address should have never been used in the State of the Union Address. Within days of the op-ed, the administration and the CIA conceded that these sixteen words should not have made it into the State of the Union Address. Also within days of the op-ed, it appears that a memo was circulating among the administration’s staff about Wilson and his family and which contained information that his wife, Valerie Plame was a CIA operative. It now has been revealed that days after the publication of Wilson’s op-ed, Karl Rove, and one or more other administration officials, spoke to as many as six reporters about Wilson and to some of them at least, it was revealed that Wilson’s wife was an agent for the CIA. At the time, Karl Rove was the president’s senior political advisor and chief political strategist.
Soon thereafter, in a syndicated article published on July 14, 2003, Robert Novak discussed Ambassador Wilson's CIA-sponsored trip to Niger. In it, Novak stated: “Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction. Two senior administration officials told me Wilson's wife suggested sending him to Niger.”
Wilson’s wife, Valerie Plame, had been “outed”.
A federal investigation ensued after a complaint by the CIA, a special prosecutor was assigned to the case, testimony has been presented to the grand jury, and after a long protracted legal battle, a reporter, Judith Miller has been jailed for contempt, apparently for refusing to reveal the source or sources of her information.
If there are indictments presented to the grand jury, will the IIPA be one of the laws alleged to have been violated? Should it be? The legal analysis follows.
1. Does Valerie Plame Meet the Requirements of a Covert Agent?
The first question to be answered under the IIPA is simple: Was Valerie Plame a covert agent as the statute defines that term?
Larry Johnson, a CIA agent, and CIA classmate of Plame, from the very beginning of this scandal has been a persistent defender of his colleague Valerie Plame. He has always maintained that she was a covert agent. Johnson has recently once again come to Plame's defense and you may find his most recent defense of Plame here.
For purposes of the IIPA, here are the pertinent parts of Johnson’s article that are of major significance in proving Plame's status as a covert agent:
A few of my classmates, and Valerie was one of these, became a non-official cover [NOC] officer. That meant she agreed to operate overseas without the protection of a diplomatic passport. If caught in that status she would have been executed.... The lies by people like Victoria Toensing, Representative Peter King, and P.J. O'Rourke insist that Valerie was nothing, just a desk jockey.... For the first time a group of partisan political operatives publicly identified a CIA NOC.... She was not a division director, instead she was the equivalent of an Army major.
The pertinent part of the IIPA, defining what constitutes a covert agent states:
The term "covert agent" means --
The IIPA detractors have always claimed that the prosecution would not be able to prove that she was a covert agent. As Johnson suggests, many detractors claim she was just a “desk jockey.” It is clear that she was not, having been the military equivalent of an Army major.
The detractors also claim that the prosecution will have to prove that she had a long-standing assignment outside the US during the five-year period prior to her “outing.” However, there is nothing in the statute to suggest that her service needs to be for an extended period of time as some detractors have suggested. After all, if a soldier were killed five minutes after landing on foreign soil, wouldn’t everyone consider that soldier to have “served” outside the US?
Until Johnson’s article, there was still some reason to believe she might not have been outside the United States at all during the five years prior to her “outing.” It has always seemed logical that the CIA could prove Plame had been outside the US within the past five years but there was nothing firm to indicate that fact. But if Johnson is correct when he says that Plame had the equivalent status of an Army major, it seems almost certain that she would have been sent outside the US on not just one but on many occasions in the 5 years prior to her “outing.” Thus, Plame would meet the "outside the United States" requirement of the statute.
Moreover, the CIA initially filed the complaint to the Justice Department. It is very doubtful that their legal counsel would have missed this requirement before making a complaint.
On this first element, it is highly unlikely that Plame’s status will not meet the IIPA’s covert requirement.
2. Did Rove and/or Others Intentionally Disclose Plame’s Identity?
Within the main body of the IIPA, three different crimes are enumerated, with three different levels of punishment: ten years, five years, and three years.
Generally speaking, the greater the authorization a person has to acquire or to know the identity of a covert agent, the greater the punishment he faces if he illegally discloses the identity of the covert agent.
But under every provision, the first element of the provision is that the “leaker” has to disclose the "identity" of the covert agent.
The detractors of the IIPA claim, and Rove advocates claim, that Rove and/or others never “leaked” her name. They claim that she was referred to as “Wilson’s wife.” The “I didn't identify her by name” defense has been thoroughly discussed on the internet and to some extent in the mainstream media. It should suffice to say: the statute uses the word “identity” and not the word “name”. People are identified in lineups, as the person being seated at counsel's table, as the person living at a certain address, as a relative (as is the case here) or friend of someone, etc. All that is necessary is that the person be identified with particularity. Once Plame was identified as “Wilson’s wife,” she was clearly identified.
The statute also requires that the identity be disclosed “intentionally.” “Intentionally” is synonymous with “willfully.” It is not believed Rove and the others disclosed Plame’s identity in anything other than a willful manner. Rove and the others were not under any legal duress when they disclosed her identity. Political duress is not legal duress.
On element two, the disclosure of the identity requirement has been met.
3. Did Rove and/or Others Identify Plame “Knowing” that She Was Covert and That the US Was Attempting to Keep Her Intelligence Relationship Secret?
The “leaker” must also identify the agent “knowing” that the agent was covert and that the US was trying to keep the agent’s intelligence relationship to the United States secret. To be sure, the element of “knowledge”, is more complex and more difficult to prove, and no doubt, it is this element that provides the detractors of the IIPA with their best arguments. But on analysis, the proof required of this element is not nearly as difficult as it seems. Nowhere in the federal criminal statutes is the term “knowledge”, or its derivatives “knowing” and “knowingly”, defined. We must look to case law for the definition of this legal concept.
Usually, knowledge means actual knowledge, but not always. Sometimes one can be “willfully blind” as to what one is required to “know”. When that happens, the courts hold that being “willfully blind” is the equivalent of actual knowledge. In US v. Ladish Malting Co., the 7th Circuit had this to say about the proof of the knowledge element of a federal crime:
Courts often say that knowledge may be proved by demonstrating that the defendant was conscious of a substantial chance that some fact [occurred] but averted his eyes for fear of learning more. See United States v. Ramsey, 785 F.2d 184 (7th Cir. 1986); United States v. Giovannetti, 919 F.2d 1223 (7th Cir. 1990), rehearing denied, 928 F.2d 225 (1991). “An ostrich instruction informs the jury that actual knowledge and deliberate avoidance of knowledge are the same thing. When someone knows enough to put him on inquiry, he knows much. If a person with a lurking suspicion goes on as before and avoids further knowledge, this may support an inference that he has deduced the truth and is simply trying to avoid giving the appearance (and incurring the consequences) of knowledge.” Ramsey, 785 F.2d at 189. Behaving like an ostrich supports an inference of actual knowledge....
The key language here is that: “actual knowledge and deliberate avoidance of knowledge are the same thing.”
The court gives the jury an “ostrich instruction” in a case where the evidence suggests that the defendant has been sticking his head in the sand and has acted in a manner that suggests he is “willfully blind” to something he has the obligation to know. You can find an excellent article on the “ostrich instruction” here on page 6.
This article is from a newsletter of the National Association of Public Defenders. It is a technical primer to federal criminal defense attorneys on how best to argue to the Court that an ostrich instruction should not be submitted to the jury. It is interesting to note that the writer of the article concludes that overcoming the ostrich instruction is an “uphill battle” and that such instructions are likely not to be reversible. Moreover, it appears that giving a clear instruction to the jury that they are not to decide the case on negligence grounds (lessening the burden of proof) but instead on “willful blindness” makes the likelihood of reversible error even more remote.
Is there enough evidence that Rove and others were “willfully blind”? Was Rove “conscious of a substantial fact” which would indicate to him that he should not disclose Plame’s identity? Was he guilty of deliberately avoiding things he had an obligation to know?
To begin with, we are talking about an agent of the CIA. Just the initials, “CIA”, immediately bring images to mind to most of us of matters of covertness, clandestine activity, secrecy, and confidential and highly classified information. One would have to be pretty blind to one’s duty of confidentiality just to ignore any mention of the CIA.
But there are a couple of other things that indicate Rove was being consciously blind.
Recently Matthew Cooper of Time magazine wrote an article about his very recent testimony before the Grand Jury. One thing he said was of particular interest on the issue of willful blindness: “I have a distinct memory of Rove ending the call by saying, ‘I've already said too much.’”
This statement is highly indicative that Rove knew he was disclosing something he was not supposed to be disclosing and that if he didn’t know the details of Plame’s covert status and the US’s desire to keep her status secret, he clearly had a suspicion of it.
Moreover, recently Representative Waxman has written an article about Rove’s disclosure agreement.
It is clear that the disclosure agreement Rove signed did not allow him to even confirm any confidential information. It further states that he has “been advised that the unauthorized disclosure … of confidential information … could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation.”
Do we have sufficient evidence that Rove was “willfully blind” to his obligation to determine whether Plame was covert before he confirmed anything about her? Yes. Do we have sufficient evidence that Rove was “willfully blind” to his obligation to determine whether the US was seeking to keep her identity secret? Yes.
My conclusion to the third element: Rove and others had the requisite knowledge the statute says they must have to commit a crime.
4. Did Rove and Others Have Authorized Access to the Confidential Identity of Plame?
Under the main body of the statute, the first and second provisions require, as an element of both provisions, that the “leaker” have “authorized access” to the confidential identity of the agent. Under the first provision, the “leaker” must be a person with specific access to the confidential identity of the agent. Under the second provision, the “leaker” must have general access to confidential information and through general access learn of the agent’s identity. The first carries a penalty of ten years; the second five.
Many pundits have assumed that this access means the person must be a governmental employee. No such governmental employee status is required, although, as a practical matter, most people who have access to confidential information are governmental employees. But clearly, a governmental contractor with confidential clearance would have access as well.
Note also that the statute uses the term “access” and not the term “possession”. The “leaker” doesn’t have to have confidential material in his hot little hands; he just has to have “access” to it. With the security clearances of the White House staff, it would seem quite logical that they possess the specific access of the first provision and not some lower level of general access.
Under the third provision of the statute, authorized access is not even required as an element. All that is required is that one be part of a “pattern of activities intended to identify and expose covert agents.” Violation of the third provision carries with it a penalty of three years. Thus, this provision is clearly a problem for non-governmental employees, hence perhaps the reluctance of reporters and the media to be keen on the IIPA.
On element four -- Rove and others had the authorized access the statute requires and being part of a “pattern of activities intended to identify and expose covert agents” could even pose problems for the reporters involved if they knew she was undercover.
In summary, legal scholars, pundits and media alike should rethink their analyses of the IIPA. It certainly seems that the prosecution can legitimately seek indictments under the IIPA that previously have been represented as having been unlikely.
David G. Mills has been a licensed attorney for 27 years. He is licensed in Texas and Tennessee and currently practices in Memphis, Tennessee. This article may be reproduced provided it is not changed. The author encourages its dissemination. He can be reached at: firstname.lastname@example.org.
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