Nulla poena sine lege
What seems odd to me is why Special Prosecutor Patrick Fitzgerald was not able to determine, very early in the investigation and to his complete satisfaction, whether the facts supported the possibility that the Intelligence Identities Protection Act of 1982 (the "Act") could have been violated by anyone with respect to Valerie Plame. (For that matter, why couldn't the Department of Justice have determined the relevant underlying fact--how long she'd been stationed inside the United States--without a credible suggestion of bias? It must be a demonstrable fact, it seems to me.) What if Fitzgerald had been appointed to look into a murder, and he spent two years digging around, spending taxpayer dollars, consuming grand jurors' time, jailing reporters, etc., and then when public attention began to focus on possible murderers, it turned out that the "victim" was alive and well? We might ask why Fitzgerald had not simply determined at the outset that the "murder" victim was not in fact dead, and closed up shop.
[Warning: You may later wish you had stopped reading here.]
Anyway, that's the interesting part of the post. But as I was reading the definitions in the Act again, it did seem that the definition of "covert agent" is badly drafted. It's at times like this that I wish my professor for first-year "Legal Method" class had chosen more engaging statutes for our study of statutory construction and/or had been more engaging himself. At all other times, I try not think about that class at all.
Here is the statutory definition of "covert agent":
"(4) The term “covert agent” means—
(A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with 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; or
(B) a United States citizen whose intelligence relationship to the United States is classified information, and—
(i) who resides and acts outside the United States as an agent of, or informant or source of operational assistance to, an intelligence agency, or
(ii) who is at the time of the disclosure acting as an agent of, or informant to, the foreign counterintelligence or foreign counterterrorism components of the Federal Bureau of Investigation; or
(C) an individual, other than a United States citizen, whose past or present intelligence relationship to the United States is classified information and who is a present or former agent of, or a present or former informant or source of operational assistance to, an intelligence agency."
Where it's not totally clear, it seems to me, is whether clauses (A) and (B) are meant to be exclusive of one another, or to overlap.
Obviously, the point of clause (B) is to apply the statute to people who are not present or retired employees or officers of an intelligence agency. But, even so, should clause (B) be read to include people in the employee/officer category, or to exclude them? If they are included, then Valerie Plame--if a U.S. citizen whose intelligence relationship with the United States is classified information--need only "act" outside the United States as an "agent" of an intelligence agency in order to fit the definition of "covert agent." "Employee" could be read to mean a specific subset of "agent," in which case Plame would be both an employee for purposes of clause (A) and an agent for purposes of clause (B).
So it's a bit unclear. But if clause (B) were intended to overlap with clause (A), there would be no point to the "serving outside the United States" and "within the last five years" bits of clause (A)--anyone meeting those requirements would already be picked up by the broader language of clause (B). Hmm. As in certain nightmares, I am suddenly transported back to Legal Method class. There is a rule of construction that says courts should construe statutes in a way that gives each word and clause effect, and should avoid interpretations that render portions of the statute meaningless. Following this rule, (A) is the clause that applies regarding people who are present and former agents or officers of an intelligence agency, and (B) is the clause that applies to other U.S. citizens with an "intelligence relationship with the United States." The interpretation fits well with clause (C), which relates to non-citizens: three distinct categories of persons, three distinct, mutually-exclusive clauses.
It is here that some would turn to the legislative history of the statute: the debates, the different drafts, the conference committee report. Yeah, that could be real exciting. By the way, if I were to post my notes from Legal Method class, the margins might look something like this . . .
. . . so I think the legislative history research and analysis are best left to others.Yes, no one seems to have noticed that Plame could arguably be covered by clause (B), and, yes, it's possible to exclude that interpretation. But that doesn't mean the definition is not badly drafted. Clause (B) should have begun "A United States citizen, other than a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency . . . ." And isn't that fascinating? If you read this far, I commend you. You probably thought I was exaggerating about that Legal Method class. But at least this involves sexy stuff like spies and Karl Rove. Imagine if it all had to do with workers' compensation.
posted at 9:10 PM
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