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Lawyer: Identity act may not apply in CIA leak case

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Attorney Bruce Sanford

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Central Intelligence Agency (CIA)
Karl Rove
Matthew Cooper
Robert Novak

(CNN) -- The 1982 Intelligence Identities Protection Act is the federal statute that apparently is at the heart of the investigation by a special prosecutor into who in the government leaked the identity of a covert CIA operative to a newspaper columnist two years ago.

The law makes it a crime to knowingly disclose the identity of an agent and specifies penalties of a fine amounting to as much as $25,000 or up to five years in prison, or both.

CNN anchor Kyra Phillips talked Thursday with Bruce Sanford, a Washington-based First Amendment attorney who helped draft the law.

PHILLIPS: Bruce, tell me your intent when you helped to draft this.

SANFORD: Well, we were representing a big cross-section of press groups trying to narrow the act, because whenever Congress gets in the business of making it a crime to make a disclosure, essentially making it a crime to convey speech, you're really talking about a law that infringes on the First Amendment field of free expression.

So we were trying to do everything we could to narrow the law. And, indeed, it is so narrow it's only been used once in its 23-year history, and that was with one of our embassy officials in Ghana in a prosecution where she pleaded guilty to telling her boyfriend who the local CIA agent was.

The truth of the matter is that this was a law passed in 1982 to stop Philip Agee from outing our covert agents during the Cold War abroad. And it really is not intended, never was intended [to be applied to matters] of public policy or national policy or whether we should be going to war with Iraq.

PHILLIPS: Well, aside from maybe partisan politics, looking strictly at the law that you drafted, do you see any evidence, according to this law, any evidence of any criminal wrongdoing?

SANFORD: No, I think it's pretty clear that what Karl Rove said to Time magazine's Matthew Cooper doesn't even come close to the kind of knowing violation that is required by the act. Really, the act really requires an intent to harm national security, and that certainly can't be said in these circumstances, I think.

PHILLIPS: All right. Now, we've heard a lot about the act, but let's look at it, actually read this portion of Section 421 of the act:

"... 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 ..."

So in other words, what you're saying, the reason there is no evidence of criminal wrongdoing is because Karl Rove didn't do anything wrong because he didn't know that Plame was covert.

SANFORD: That's pretty clear from the notes, the e-mails that Time magazine released to the grand jury that [White House political adviser] Karl Rove said that [former Ambassador Joseph] Wilson's wife -- he didn't even use her name -- but Wilson's wife "apparently works" at the CIA.

It seems to me there's a substantial question whether she qualifies as the kind of covert agent that was envisioned by the act. There are very tight requirements for that.

And there is a substantial doubt whether the agency was taking the kind of affirmative measures to conceal her identity that the act talks about.

PHILLIPS: So, Bruce, how would you define a covert agent?

SANFORD: I think a covert agent under the act has to be someone who has deep cover, who is working abroad. Not just traveling abroad, but is stationed and working abroad sometime within the last five years.

And USA Today reported that Joe Wilson's book has even made -- if you do the timeline, the Wilsons were married in 1998. There's some question whether she was even abroad during the last five years.

She really had a desk job at [CIA headquarters in] Langley [Virginia] and was driving in and out of the CIA every day. That's not exactly deep cover.

PHILLIPS: Well, do you think that is the area that needs to be flushed out in a little more detail? Because obviously there is a criminal investigation going on. Somebody thinks that somebody did something wrong. Is it going to come down to defining her job, detail by detail?

SANFORD: Well, I think we'll have to -- Pat Fitzgerald, the prosecutor, will obviously have to see whether this act applies.

But if it isn't this act that serves as the basis for an investigation, he could always rely on perjury or obstruction of justice, the sort of lying to investigators that prosecutors have used time and time again in recent years.

PHILLIPS: Well, breaking the law or partisan politics, do you think Valerie Plame [Wilson's wife] is now damaged goods?

SANFORD: Well, ... it is worth remembering that when Robert Novak, the columnist, disclosed her identity in his column, he had called the CIA to tell them he was going to do that, and they didn't stop him.

They did not do what the CIA normally does in that situation if they want to protect or continue to protect somebody's identity. ...

They didn't call his syndicate. They didn't scream at him, say you're going to endanger her life or [en]danger her career, that sort of thing. They just sort of shrugged and said, "Well, I guess she won't be getting any more overseas assignments."

I don't think that's the kind of affirmative measures that the agency needs to be taking in order to invoke the statute.

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