Rare Statute Figures in Rove Case

In the early 1980s, Sharon Scranage, a clerk for the CIA in Ghana, committed what in retrospect was a historic act of betrayal.

The seven-year agency employee, with a top-secret security clearance, was charged with leaking secrets to her boyfriend, a suspected operative of the Ghanaian national intelligence service. Described by friends as a highly religious person who had never been in trouble, she pleaded guilty in 1985 to disclosing the identity of covert agents.

It was the only time anyone had been prosecuted under a 1982 federal law called the Intelligence Identities Protection Act.

The law is at the center of the debate over the unmasking of CIA operative Valerie Plame, and the possible involvement of Karl Rove, who is a White House deputy chief of staff, and other Bush administration figures.

Rove’s lawyer said he was confident that the long-dormant law could not be applied to his client. History may be on his side.

But some legal experts said that too little was known about what Rove had known about Plame and when he had known it, and that it was therefore too soon to judge whether President Bush’s close aide was in the clear. In any event, they said, special prosecutor Patrick J. Fitzgerald may pursue other charges, such as perjury or obstruction of justice, or he may decide against seeking any indictments.

Thursday marked the second anniversary of the publication of Plame’s name in a syndicated column by Robert Novak. For more than 18 months, a Justice Department investigation led by Fitzgerald has been seeking to identify the administration sources used by Novak and other journalists covering the story. That led to the jailing last week of New York Times reporter Judith Miller for refusing to cooperate with the prosecutor.

Rove has been connected to the case through a conversation he had with Time magazine reporter Matthew Cooper days before the Novak column appeared, and through Cooper’s subsequent e-mail to his editors indicating Rove had identified Plame to him in a brief phone conversation, though apparently not naming Plame. Cooper testified Wednesday about his conversation with Rove for 2 1/2 hours before a federal grand jury.

Among the legal tools available to Fitzgerald is the 1982 law, a reaction to efforts in the 1970s to publicly identify clandestine operatives around the world. One disaffected CIA agent, Philip Agee, published two books that named more than 1,000 alleged operatives. Hundreds of others were unmasked in the Covert Action Information Bulletin, a publication whose purpose was to undermine U.S. intelligence agencies’ ability to operate secretly.

The law was meant to crack down on what the act’s congressional authors called “conscious and pernicious” disclosures of agents’ identities, rather than disclosures arising from casual conversation or other circumstances.

The law only criminalizes disclosures by a person who knows the operative is a “covert agent” and who “intentionally” reveals the information to someone unauthorized to receive it. It also requires that intelligence agencies be actively trying to hide the identity of the agent and that the person revealing the agent’s identity be aware of those efforts.

Prosecutors have all but ignored the law. A national security law expert at Syracuse University law school, William Banks, said he could find no published legal decision interpreting the law.

Some think the law’s dormancy reflects government employees’ care to protect agents’ identities in recent years. Others say the dearth of prosecutions shows that Congress intended to outlaw only very specific misconduct.

Congress “did not intend for government employees to be vulnerable to prosecution for an unintentional or careless spilling of the beans about an undercover identity,” wrote two Washington lawyers who helped draft the law, Victoria Toensing and Bruce Sanford, in an analysis of the Plame case this year. “A dauntingly high standard was therefore required for the prosecutor to charge the leaker.”

Toensing, a deputy assistant attorney general under President Reagan, sees hurdles for Fitzgerald and strongly believes no crime was committed. In an interview, she said she doubted Plame qualified as a “covert” operative, and she said the CIA was “cavalier” about protecting her status. Plame’s CIA position was “cocktail circuit talk” around Washington, Toensing said.

Rove’s lawyer, Robert Luskin, has said his client is innocent for other reasons. For instance, he said Rove’s intent in mentioning her status to Cooper was to discourage the journalist from writing a story, not to reveal it publicly. Rove never mentioned Plame by name to anyone, he said, citing that as further evidence of his lack of culpability.

“The disclosure has got to be made with the intent that somebody’s status as a covert agent be publicly disclosed.... A fair reading of the e-mail is that [Rove] was doing the opposite,” Luskin said. Luskin also has said that Rove has been told he is not a target of Fitzgerald’s investigation.

But some legal experts said the issues were not so clear-cut. Luskin has declined to say whether Rove knew that Plame was a covert official; evidence that Rove did have that information might undercut his contentions that he did not intend to unmask Plame. Such issues are normally questions for juries to discern, said Banks, the Syracuse professor.

Jeffrey Smith, a Washington lawyer and former general counsel of the CIA, questioned whether the Justice Department would launch an investigation unless it believed Plame qualified for protection under the statute.

He also said the 1982 law does not appear to require that someone name an agent to be subject to prosecution, noting that the law proscribed disclosing “any information” that identified the agent.

Cooper spoke with Rove days after a New York Times opinion column written by Plame’s husband, former diplomat Joseph C. Wilson IV, raised questions about the intelligence information the Bush administration had cited to justify war in Iraq.

Wilson has since said that the administration unmasked his wife in retribution. Congressional Democrats brought Wilson to Capitol Hill on Thursday to join the call for pulling the security clearance of Rove, Bush’s chief political strategist. Wilson served as an advisor to the campaign of Sen. John F. Kerry (D-Mass.) in last year’s presidential election.

The partisan tensions of the Plame case spilled onto the Senate floor, where Democrats introduced an amendment aimed at Rove to a domestic security spending bill. It would have stripped security credentials from any federal employee who leaked classified information. The measure was defeated.

An infuriated Senate Majority Leader Bill Frist (R-Tenn.) called the amendment a Democratic effort to “score cheap political points.”

Sen. Barbara Boxer (D-Calif.) responded that it was politics that led to the leak of Plame’s CIA association. “Either you stand on the side of these brave undercover operatives who risk their lives ... or you stand on the side of those who would play politics and have played politics with their identity,” she said.

House Democrats introduced a long-shot resolution to compel the White House to produce all records related to the unmasking of Plame. Republicans said Democrats should wait for the outcome of the federal investigation of the leak.

Wilson, joining Sen. Charles E. Schumer (D-N.Y.) at a news conference to call for a suspension of Rove’s security credentials, said: “Irrespective of whether a law has been violated, it’s very clear to me that the ethical standard to which we should hold our senior public servants has been violated.” Republicans sought to attribute Wilson’s Capitol Hill appearance to partisan politics.

Times staff writer Richard Simon contributed to this report.