How many times have you heard this woman — Victoria Toensing — and innumerable other TV cable news pundits claim that ” no charges can be brought under the Intelligence Identities Protection Act of 1982, because it imposes an impossibly high standard for proof of intent”?


To quote that (two-faced) Michael Jackson juror about the alleged victim’s mother, “Don’t you wave your finger at ME, lady!”


Toensing — married to former federal prosecutor Joe DiGenova and a former chief counsel to the Senate intel committee (1981-1984) and Reagan’s deputy asst. AG — wrote in a Jan. 12, 2005 WaPo op-ed (with its punny title, “The Plame Game: Was This a Crime?”) that “[a] dauntingly high standard [is] required for the prosecutor to charge the leaker.”


“Au contrare!,” says Elizabeth de la Vega, former federal prosecutor and Chief of the San Jose Branch of the U.S. Attorney’s Office for the No. District of California:

[in Slate] Christopher Hitchens described the 1982 Act as a “silly law” that requires that “you knowingly wish to expose the cover of a CIA officer who you understand may be harmed as a result.” Similarly, [WaPo columnist Richard Cohen] said he thought Rove was a “political opportunist, not a traitor” and that he didn’t think Rove “specifically intended to blow the cover of a CIA agent.” Such examples could be multiplied many times over.


[T]he pundits are wrong; and their casual summaries of the requirements of the 1982 statute betray a fundamental misunderstanding regarding proof of criminal intent.


Do you have to intend to harm a CIA agent or jeopardize national security in order to violate the Intelligence Identities Protection Act? The answer is no. …


As Media Matters points out, USA Today is among the innumerable media sheep who have relied on an “unsupported reading” of the Intelligence Identities Protection Act.

I’ve heard that “talking point” so many times I believed it just had to be true. Toensing’s little campaign has worked quite well, hasn’t it.

Thank god for de la Vega. Writes Tom Engelhardt:

Alone among a sea of pundits, she suggests that the 1982 law is a perfectly usable one under which, based on what we know at present, a case could indeed be brought against a “senior administration official” and perhaps prosecuted successfully indeed. This is news. MORE BELOW:

From TomDispatch

Tomgram: De la Vega on How to Prosecute the Plame Case

Thursday, August 11, 2:01 PM


Rumors and leaks continue to swirl around the case of outed CIA agent Valerie Plame and the various journalists and Bush “senior administration officials” believed to be involved in some fashion in her outing. Whole forests have undoubtedly been pulped for the endless flood of summer stories about the Plame case and yet something has been missing. The Intelligence Identities Protection Act of 1982, the law against outing a CIA operative under which Special Counsel Patrick Fitzgerald was, in essence, called into existence, is rarely discussed in any serious way — and then at best only in a passing paragraph or two deep in any story. And yet a media/punditry consensus has formed that it is a law so specifically, even quirkily, written as to be almost impossible to use in a prosecution (hopeless, in fact, against a figure like Karl Rove or Vice President Cheney’s right-hand man I. Lewis “Scooter” Libby); and that Special Counsel Fitzgerald has already turned away from the law, moving on to more conceivable avenues of prosecution — like obstruction of justice.


Elizabeth de la Vega, former federal prosecutor and Chief of the San Jose Branch of the U.S. Attorney’s Office for the Northern District of California, has no more inside information than the rest of us on an investigation that has seemed remarkably leak-less; but calling on her prosecutorial experience, she begs to differ on the question of whether the 1982 law is difficult to use in a prosecution. Alone among a sea of pundits, she suggests that the 1982 law is a perfectly usable one under which, based on what we know at present, a case could indeed be brought against a “senior administration official” and perhaps prosecuted successfully indeed. This is news. Tom.

Plame in the Courtroom


Is the Intelligence Identities Protection Act really impossible to prove?


By Elizabeth de la Vega


Pundits right, left, and center have reached a rare unanimous verdict about one aspect of the grand jury investigation into the Valerie Plame leak: They’ve decided that no charges can be brought under the Intelligence Identities Protection Act of 1982, because it imposes an impossibly high standard for proof of intent. Typically, writing for Slate on July 19th, Christopher Hitchens described the 1982 Act as a “silly law” that requires that “you knowingly wish to expose the cover of a CIA officer who you understand may be harmed as a result.” Similarly, columnist Richard Cohen, in the July 14 Washington Post, said he thought Rove was a “political opportunist, not a traitor” and that he didn’t think Rove “specifically intended to blow the cover of a CIA agent.” Such examples could be multiplied many times over.


Shocking as it may seem, however, the pundits are wrong; and their casual summaries of the requirements of the 1982 statute betray a fundamental misunderstanding regarding proof of criminal intent.


Do you have to intend to harm a CIA agent or jeopardize national security in order to violate the Intelligence Identities Protection Act? The answer is no.


Before presenting any case, a prosecutor like Special Counsel Patrick Fitzgerald in the Plame case has to figure out “the elements of the crime”; in other words, the factors he has to prove under whatever statute he is considering. If a grand jury finds probable cause to believe that each element has been proved, it may then return an indictment. At trial, the judge instructs the jury about these same elements. Parties can argue about whether the elements have been proved beyond a reasonable doubt, but neither side can add, delete, or modify the elements even slightly to suit their arguments.


Keep reading at TomDispatch .