The Plame Game: Why is it being played?
As a former “spook,” your humble observer takes a keen interest in laws designed to protect the identity of our intelligence agents under either “official cover,” or “non-official cover.” The former are agents and military attaches working abroad in our embassies, consulates and missions whose primary responsibility is the collection and reporting of information their host countries would prefer to keep secret. Agents under official cover are protected by diplomatic immunity. If caught, the host nation declares them persona non grata and they are sent home.
But agents under non-official cover have no diplomatic immunity. If exposed, they could even face execution. And, if they make it home without exposure, they should not be exposed for a considerable period of time. Why? Because they were probably working abroad in a “civilian” occupation surrounded by unwitting co-workers and neighbors who thought they were who they appeared to be: butcher, banker, candlestick maker, etc. Premature exposure puts unwitting co-workers, friends and neighbors at risk of imprisonment, torture and death – merely for association with the exposed agent – no matter how innocent.
Unfortunately, Title 5, Chapter 15, Subchapter IV, Section 421 of the U.S. Code which was enacted to prevent the premature disclosure of our agents under non-official cover, is very weak. For example, let’s say you are a reporter using your White House contacts to gather background information for a story. But before your source or sources can be guilty of “outing” an intelligence agent, your source or sources must: (1) Have access to classified information that identifies a specific person as a covert agent. (2) The sources must intentionally [italics mine] disclose the name of the person as being a covert agent. (3) The agent’s identity must be disclosed to someone known not to be authorized access to the agent’s identity. (4) The person making the disclosure must know [italics mine] that the U.S. Government is taking affirmative measures to conceal the identity of the covert agent. (5) The person whose identity is exposed must have been working outside the United States as a covert agent within the last five years and must occupy a classified position.
Therefore, a reasonable person would conclude it might be virtually impossible to obtain a conviction under the elements of proof set out in Section 421. While it would be easy to prove that some White House aides have access to classified information, the element of intent is extremely difficult to prove. And while a reasonable person would know that reporters are not authorized access to classified information, it would not be reasonable to assume that White House aides would know the names of all persons whose identities the U.S. Government is taking affirmative action to conceal.
Thus, trying to prove that whatever Karl Rove or “Scooter” Libby or other White House aides told a reporter or reporters about Ms. Valerie Plame on or before July, 2003, meets the elements of proof of Section 421 would be daunting, if not impossible.
But the biggest problem for those trying to prove White House aides “outed” Ms. Plame is Ms. Plame herself. While Valerie Plame may have served abroad under CIA cover, she returned from overseas in 1994. Section 421 says covert agent protection applies only to those who have served …”outside the United States within the last five years.” So, after 1999, her former covert identity was no longer protected by Section 421. Moreover, Ms. Plame’s state-side re-assignment as an analyst at CIA headquarters requires her to wear a CIA-issued ID badge at work. That’s not something done by covert agents.
If Ms. Plame hasn’t qualified for the protections of Section 421 since her return from overseas and her subsequent posting to an unclassified position at CIA headquarters, where’s the crime? About all a prosecutor could hope for is that witnesses might be caught trying to fudge their testimony and get caught in the perjury trap.
William Hamilton, a syndicated columnist, a featured commentator for USA Today and self-described “recovering lawyer and philosopher,” is the co-author of The Grand Conspiracy and The Panama Conspiracy – two thrillers about terrorism directed against the United States.
©2005. William Hamilton.