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Tuesday, July 12, 2005

Obligatory Karl Rove post

My guess is that it will all blow over. The White House will await the conclusion of special prosecutor Patrick Fitzgerald's "ongoing criminal investigation." Fitzgerald's report will not contain a conclusion that Rove violated the Intelligence Identities Protection Act, most likely because not all of the requisite elements for a violation were present. Among other things, as has been widely reported, Rove must have "intentionally" disclosed information identifying a covert agent "knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States." Also, to be a "covert agent," a CIA employee must be serving outside the United States or must have served outside the United States within the last five years, and it is unclear whether Plame meets the five-year requirement.

What has been less well reported is that the whole provision about this kind of identity disclosure begins: "Whoever, having or having had authorized access to classified information that identifies a covert agent . . . ." As I read that, a person without authorized access to that kind of classified information about Plame's identity is not covered by this provision of the Act. And it seems unlikely that Rove, a Deputy Chief of Staff and (obviously) a political appointee, would have had authorized access classified information about CIA identities. Seems like that sort of thing is usually on a need-to-know basis, and I don't think it follows from the fact that Rove knew Plame was a CIA employee that he ever had "authorized access to classified information" identifying her as a covert agent. Not just access, "authorized access."

Here are the definitions of "classified information" and "authorized" for these purposes:

"The term 'classified information' means information or material designated and clearly marked or clearly represented, pursuant to the provisions of a statute or Executive order (or a regulation or order issued pursuant to a statute or Executive order), as requiring a specific degree of protection against unauthorized disclosure for reasons of national security."
"The term 'authorized', when used with respect to access to classified information, means having authority, right, or permission pursuant to the provisions of a statute, Executive order, directive of the head of any department or agency engaged in foreign intelligence or counterintelligence activities, order of any United States court, or provisions of any Rule of the House of Representatives or resolution of the Senate which assigns responsibility within the respective House of Congress for the oversight of intelligence activities."

Reading through that definition of "authorized," I have a hard time thinking someone in Rove's position would have had that level of authorization.

The President's promise to fire anyone involved in "leaking" Plame's name can be handled by distinguishing between "leaking" as it is commonly understood--involving some level of initiative--and fielding a call from a reporter, which seems to be what Rove did. As they spin it, he was just trying to correct the impression created by Wilson's op-ed piece that Wilson's visit was at the behest of the Vice President's office. Plus, no one says he literally revealed Plame's name. There is plenty of room to maneuver out of the pledge to fire anyone involved.


posted at 4:06 PM

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