Wednesday, July 13, 2005

Legal analysis by visiting attorney

This came in to the e-mail account today in response to an earlier post. The person is an attorney (that's been verified). The person asks to remain nameless. Attorney X notes a great interest in "the information" getting out than in credit, even offers that I could pass it off as my own. (Kind offer, but when I say "I don't know" -- as I did re: Vicky ToeJam's claims in a Wash Post op-ed and claims Richard W. Stevensom appears to have repeated in "At White House, a Day of Silence on Rove's Role in C.I.A. Leak" -- I mean "I don't know." No need to pretend otherwise on my part.)

If Attorney X decides to take credit via real name, we'll note the real name here. But the friend I called last night was very clear about not wanting to be named and so I can certainly understand Attorney X's desire to be unnamed. (Again, Attorney X's status as an attorney is verified.)

I have read your analysis of the New York Times article about Karl Rove.

I have read other articles and postings about this matter.

All trouble me, because they do not correctly describe the state of affairs.

Further, I think that the state of affairs can be simply and correctly stated.

Finally, I feel that doing so would contributing greatly to an understanding of what Mr. Fitzgerald is doing, and probably what Mr. Rove has done, and will be doing.

Take your analysis, for instance. It is very exacting and rigorous, it seems to me.

Very good, in other words. The problem from which it suffers is your ignorance. Not stupidity, ignorance. Just as there are many things I do not know about, there are some things you do not know about. Your analysis necessarily comes to a halt when you reach one of your points of ignorance. As you seem to recognize fully.

The good news is, the very few things about which you are ignorant in this case are very simple to understand, and they are things which I do understand.

I propose in this e-mail to set out those things, to source them to you solidly, and to offer my thoughts about what they mean. If you choose, please investigate offerings, consider them, and use them as you see fit.

First, the U. S. Code. You have linked to a University of Missouri Web site, I believe. I don't know about the authority, completeness, currency, and so forth of that Web site for such material. Probably the most authoritative source for such material, online, and maybe anywhere, is the official Government Printing Office Web site -

Google "united states code" and you can confirm that.

Personally, I like the Cornell site -

[. . .]

For your purposes, the GPO site is probably the best - you're right unless the official lawkeeper is wrong.

You're more than able to figure out how to use the site. Go over there, if you choose to pursue this, and look up 50 U. S. C. 421. Note several points.

1. In the first two subsections, at the very least, the law requires an element of intent. And the intentional act required is intentional disclosure. The act does not require knowledge on the part of the disclosing party that the person being identified is a covert agent. Just the intentional disclosure of information. The point of this intent requirement is simple. Suppose you know the identity of a covert agent, as permitted by law, and I, too, am permitted by law, to know it. You tell me, and someone overhears you, unbeknownst to us. Say someone taps our telephone conversation. You have disclosed the information to someone not entitled to have it, but not intentionally. You have not violated the law.

2. The information disclosed must identify a covert agent. Not necessarily by name. Or Social Security number. Or DNA. Any method of identification is sufficient. There is no restriction on the type of identification. Suppose you know the identity of a covert agent, as permitted by law, and I am an assassin sent to murder a foreign agent. But I do not know who it is. My government has paid you to tell me. We meet in a restaurant, where the foreign agent is eating, also. You nod your head toward her, and maybe say, "Her, in the blue dress, over there." You have violated the law.

The notion, as floated by Rove's lawyer, that the identification must be by name, is without support in the law. If the drafters of the law had wanted to limit the law in that way, they would have done so, and would have made it essentially useless in doing so.

3. The statute has a knowing element, in addition to the intent element. The thing which must be known is not the fact that the person identified is a covert agent, but that the information disclosed identifies the person. Again, the type of identification is not restricted.

4. The statute also requires that the discloser know that the United States is trying to keep the intelligence connection between the person and the United States non-public.

5. Those first two subsections have additional elements - for instance, that the discloser have authorized access to classified information.

Now, go to 50 U. S. C. 426. There's your definition of "covert agent," in subsection (4). Not to mention "classified information," in subsection

(1).As you can see, there are three definitions of a "covert agent," (A), (B), and (C).

(C) does not apply. Nor does (B) (ii). So we are left with (A) and (B) (i).

Note, first, the disjunctive, not conjunctive connectors. Satisfying either element makes one a "covert agent;" both elements need not be satisfied.

(B) (1) seems not to apply, because it requires current foreign residence. It is nonetheless instructive, because it establishes the contrast between residence and service, which is the standard in sub-subsection (A).

Now, let's look at subsection (A).The first requirement, in the opening paragraph, seems to be satisfied - Plame was a present officer or employee of an intelligence agency.

The second requirement, that her identity as such be classified information, cannot known to us for a certainty. I would be shocked, though, if some order or regulation or statute did not make her identity such. That is why Wilson threw such a fit when his wife's identity was betrayed - it was supposed to be a secret. You can bet that if he were wrong, and her identity was supposed to be public, Rove's defenders would have made that point long ago. They wouldn't rely on less good defenses when they had a rock solid one. That is why Toensing's questioning of Plame's secret status rings hollow - it isn't a matter of where Plame's desk was, it's a matter of whether there is the requisite order, statute, or regulation in existence. An "expert" on the law would know that. My conclusion has to be that she's blowing smoke for Rove on this.

The third requirement is service - as opposed to residence - outside the country in the last five years. What kind of service? Any kind. There is no restriction. Wilson's trip to Africa was service outside the country, for instance. Conceivably, if the CIA had sent Plame to Toronto on a plane to pick up papers and come back one day, she would have served outside the country. Did this happen? We can't be sure, but is hard to believe that a secret CIA agent working on WMD didn't take at least one trip outside the country for them in the five whole years, especially if just before that period, she had been stationed outside the country, and the way the whole WMD was being cranked up by the Administration in the preceding two or so years.

In the end, though, you make the ultimate point - Fitzgerald and the lawyers working in his office are no one's fools, and if they are pursuing this like they are, they must feel pretty good about the basic things, like foreign service and statutes, orders, and regulations. Those are easily easily established or disproven by documentation. That is true even if they are also pursuing perjury and obstruction of justice charges, which it appears they are.

Also, judging by the slim, and faulty, reeds the "experts" are grasping for, I have to believe that something real hot is under all that smoke.

[. . .]

My main purpose is certainly not identification, though, it is publication of accurate information.

I hope this helps.

It does help. And thank you for walking me through it. Again, if Attorney X should desire credit for this, it will be noted here. I have to wonder who, if anyone, Richard W. Stevenson verified Toejam's claims on the law with.

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