Friday, July 15, 2005


There's a curious aspect of the criminal statute (50 U.S.C. § 421) at issue in the Wilson/Plame/Rove affair that I haven't seen discussed. Operative text (emphasis mine):
(a) Disclosure of information by persons having or having had access to classified information that identifies covert agent

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.
That "any" is significant. The defendant must have had authorized access to classified information identifying a covert agent, and the defendant must have disclosed information identifying the agent, but nowhere does the statute say that the access has to be the source of the disclosed information. At first glance this lack of linkage between the access and the disclosure seems peculiar. Then again, perhaps it isn't so odd. You can think of the statute as creating a heightened standard of care for those with access to classified information. It tells them that such access carries with it an extra responsibility to be circumspect, above and beyond the simple obligation not to reveal (for instance) the contents of a classified memo.

Moreover, that little word "any" seems to be in play in Rove's situation. Although he presumably has some sort of security clearance, it seems unlikely that whatever he told Matt Cooper (or Judith Miller, or anybody else) about Plame actually came from a classified document that he personally read. In fact, it's possible that he learned about Plame from other reporters. No matter--that doesn't get him off the hook.

Of course, as many have noted, this is a pro-defendant statute for other reasons, chiefly the rigorous knowledge and intent requirements. But in this one respect, the statute favors the prosecution.


Seems like you are missing the forest for the trees. Key phrase is "covert agent". Plame was *not* a covert agent. CIA says so. Her husband even said so last week. So the meaning of *any* is irrelevent in this case since the entire statute applies to *covert agents* -- which Valerie Plame was NOT!

By Anonymous Anonymous, at 1:29 PM  

Mmmm, no. I see the forest just fine. I merely thought that this particular tree was both interesting and unnoticed.

By Blogger THE WARRIOR MONK, at 8:14 AM  

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