LOS GATOS, CALIF.
Pundits have reached a rare unanimous verdict about one aspect of the grand jury investigation into the Valerie Plame leak: no charges can be brought under the Intelligence Identities Protection Act because it imposes an impossibly high standard. Christopher Hitchens, for instance, described the 1982 act as a "silly law" that requires that "you knowingly wish to expose the cover of a CIA officer who you understand may be harmed as a result."
The pundits are wrong, however, and their casual summaries of the requirements of the 1982 statute betray a fundamental misunderstanding regarding proof of criminal intent. Do you have to intend to harm a CIA agent or jeopardize national security in order to violate the Intelligence Identities Protection Act? The answer is no.
This is what the Intelligence Identities Protection Act says: "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 US is taking affirmative measures to conceal such covert agent's intelligence relationship to the US shall be fined under title 18 or imprisoned not more than ten years, or both."
So what, exactly, must the prosecutor prove about the defendant's state of mind under this law? Simply break down the sentence. The defendant must "intentionally disclose" the information. To determine what "intentionally disclose" means, you must follow some basic rules of statutory construction. First, you look to see if the word is specifically defined within the statute itself. For example, the term "disclose" is defined in the act to mean "communicate, provide, impart, transmit, transfer, convey, publish or otherwise make available."
The word "intentionally" isn't defined in the statute, so you have to turn to the second rule of statutory construction, which is to see if it is defined or interpreted in applicable case law. There's a wealth of case law interpreting the term "intentionally." Its meaning is well established and straightforward: "on purpose, not by mistake or accident."
Nowhere does this statute require proof that the defendant "wished to harm" an undercover agent or jeopardize national security. The reason someone disclosed the information is an issue of motive, not intent. Merely semantics, you say? In criminal law, it's nonetheless a key distinction. Motive is why someone acts; intent is the person's purposefulness while doing so. If you accidentally take home your neighbor's Gucci bag from the block party, there's no crime because you didn't act intentionally. (You do have to give it back, though.) If you grab your neighbor's bag on purpose, you've acted intentionally and you could be guilty of theft. It matters not a whit whether your motive was to get revenge on your neighbor for making too much noise or to get extra cash to hand out to the poor.
There are two other elements in the statute that relate to state of mind: The prosecutor must prove that the defendant knew the information he or she was disclosing "identifies" the covert agent and that the US was taking affirmative measures to conceal that agent's intelligence relationship to the US.
What does "identify" mean in this statute? Well, there is no specific definition and no case law to look to. So you turn to the third rule of statutory construction, which simply says that you apply the everyday meaning of the word. Perhaps, in a through-the-looking-glass world, someone could decree that to identify means to "name" and nothing else, but the statute doesn't say that; nor is that how ordinary people would use the word. There are obviously myriad ways to identify a person besides naming him or her, but unless a man were a polygamist, a reference to his wife would certainly suffice.
None of us can presume to know the universe of facts that have been uncovered in the Plame case.On the contrary, we can be quite sure there's much that we don't know, and that some of what we think we know is wrong. It would be presumptuous to declare that the Intelligence Identities Protection Act is definitely still under consideration in the grand jury proceeding. But it's equally presumptuous - and illogical - to declare that it's not under consideration, especially when the opinion is based solely on mistaken assumptions about the requirements of the law.
• Elizabeth de la Vega recently retired after more than 20 years as a federal prosecutor. A longer version of this piece first appeared at www.tomdispatch.com © 2005 Los Angeles Times.