Plame Affair - Legal Issues Relating To The CIA Leak Scandal

Legal Issues Relating To The CIA Leak Scandal

There are some major legal issues surrounding the allegations of illegality by administration officials in the CIA leak scandal, including Executive Order 12958, the Intelligence Identities Protection Act, the Espionage Act, Title 18 Section 641, conspiracy to impede or injure officers, the Classified Information Nondisclosure Agreement, other laws and precedents, perjury, conspiracy, obstruction of justice, and compelling the media to testify.

A topic of much public debate centered on whether Plame's CIA status fit the definition of "covert" outlined under Intelligence Identities Protection Act.

The government and Libby's defense filed sentencing memoranda after Libby's conviction. According to Fitzgerald:

First, it was clear from very early in the investigation that Ms. Wilson qualified under the relevant statute (Title 50, United States Code, Section 421) as a covert agent whose identity had been disclosed by public officials, including Mr. Libby, to the press.

While not commenting on the reasons for the charging decisions as to any other persons, we can say that the reasons why Mr. Libby was not charged with an offense directly relating to his unauthorized disclosures of classified information regarding Ms. Wilson included, but were not limited to, the fact that Mr. Libby’s false testimony obscured a confident determination of what in fact occurred, particularly where the accounts of the reporters with whom Mr. Libby spoke (and their notes) did not include any explicit evidence specifically proving that Mr. Libby knew that Ms. Wilson was a covert agent. On the other hand, there was clear proof of perjury and obstruction of justice which could be prosecuted in a relatively straightforward trial.

Libby's defense team countered:

Both of the sentencing memoranda the government filed on May 25, 2007 include unfounded assertions that Mr. Libby’s conduct interfered with its ability to determine whether anyone had violated the IIPA or the Espionage Act...We are necessarily hampered in our ability to counter the government’s assertions regarding Ms. Wilson’s status under the IIPA because the Court ruled – at the government’s behest – that the defense was not entitled to discovery of the information necessary to challenge them. But even a review limited only to the publicly available information suggests that the conclusion the government touts as “fact” is subject to significant doubt.

The summary described above was provided to the defense along with a companion summary that defined a “covert” CIA employee as a “CIA employee whose employment is not publicly acknowledged by the CIA or the employee.” It is important to bear in mind that the IIPA defines “covert agent” differently. It states: “The term ‘covert agent’ means— (A) a present or retired officer or employee of an intelligence agency . . . (i) whose identity as such an officer, employee, or member is classified information, and (ii) who is serving outside the United States or has within the last five years served outside the United States.” The CIA summary of Ms. Wilson’s employment history claims that she “engaged in temporary duty (TDY) travel overseas on official business,” though it does not say whether such travel in fact occurred within the last five years. Further, it is not clear that engaging in temporary duty travel overseas would make a CIA employee who is based in Washington eligible for protection under the IIPA. In fact, it seems more likely that the CIA employee would have to have been stationed outside the United States to trigger the protection of the statute. To our knowledge, the meaning of the phrase “served outside the United States” in the IIPA has never been litigated. Thus, whether Ms. Wilson was covered by the IIPA remains very much in doubt, especially given the sparse nature of the record.