FIRST THE VERDICT, THEN THE ACCUSED:

Reporters Put Under Scrutiny in C.I.A. Leak (ADAM LIPTAK, September 28, 2004, 9/28/04, NY Times)

Leak investigations are often halfhearted and one-sided enterprises. Suspected leakers are questioned, not always vigorously or under oath, and the source of the disclosure is seldom found. The journalists who could say for sure are almost never subpoenaed.

The Plame case is different. This is largely because, unlike most leaks, the disclosure of an undercover intelligence agent's identity is a felony. The disclosure of Ms. Plame's identity, moreover, may have been motivated by politics. And the investigation inside the government, in which the president, the vice president and many other officials have been questioned, seems to have been both exhaustive and inconclusive.

Mr. Liptak seems ton accept as a given that which, so far as we've seen, no one has established, that the disclosure in this case would be a felony, The Bush Administration Adopts a Worse-than-Nixonian Tactic: The Deadly Serious Crime Of Naming CIA Operatives (JOHN W. DEAN, Aug. 15, 2003, Find Law)

The Act primarily reaches insiders with classified intelligence, those privy to the identity of covert agents. It addresses two kinds of insiders.

First, there are those with direct access to the classified information about the "covert agents." who leak it. These insiders - including persons in the CIA - may serve up to ten years in jail for leaking this information.

Second, there are those who are authorized to have classified information and learn it, and then leak it. These insiders - including persons in, say, the White House or Defense Department - can be sentenced to up to five years in jail for such leaks.

The statute also has additional requirements before the leak of the identity of a "covert agent" is deemed criminal. But it appears they are all satisfied here.

First, the leak must be to a person "not authorized to receive classified information." Any journalist - including Novak and Time - plainly fits.

Second, the insider must know that the information being disclosed identifies a "covert agent." In this case, that's obvious, since Novak was told this fact.

Third, the insider must know that the U.S. government is "taking affirmative measures to conceal such covert agent's intelligence relationship to the United States." For persons with Top Secret security clearances, that's a no-brainer: They have been briefed, and have signed pledges of secrecy, and it is widely known by senior officials that the CIA goes to great effort to keep the names of its agents secret.

A final requirement relates to the "covert agent" herself. She must either be serving outside the United States, or have served outside the United States in the last five years. It seems very likely that Mrs. Wilson fulfills the latter condition - but the specific facts on this point have not yet been reported.

It's not clear from the reporting that's been done so far that any one of these conditions was met.

Posted by Orrin Judd at September 28, 2004 8:47 AM