This is a partial transcript of "Special Report With Brit Hume," July 14, 2005, that has been edited for clarity.
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BRIT HUME, HOST: The law making it a crime to out an American spy is called the Intelligence Identities Protection Act (search) passed in 1982, after a rogue ex-U.S. spy named Philip Agee has systematically fingered a number of covert American agents overseas. If anyone broke the law by outing Valerie Plame (search ), this is the law, but do the facts of this case fit it?
For answers, we turn to David Rivkin, a lawyer who specializes in national security matters and has worked representing media clients, I believe, on this case.
DAVID RIVKIN, BAKER AND HOSTETLER LLP: Thank you.
HUME: First of all, let’s talk about the main body of this measure passed in 1982. Who does it apply to, and what kind of knowledge does the person have to have?
RIVKIN: It applies to people who intentionally disclose classified information that identifies a covert agent in a situation where the government is taking affirmative steps to protect identity of that person.
HUME: Now, does the person in question have to have obtained the information from classified sources and to be with someone with access to classified sources?
RIVKIN: That is correct. That is correct.
HUME: So you more or less have to be in government, or at least have to have a security clearance, and you have to have obtained the information from classified sources?
RIVKIN: That is correct. Although, in the case of somebody like Agee, you can be a person without a clearance, but you obtain this information from somebody...
HUME: While you were in the government?
RIVKIN: That is correct.
HUME: And the government has to be affirmatively trying to keep this information from becoming public. What does that mean?
RIVKIN: The kind of steps involving a typical intelligence tradecraft, making sure that the person is not identified as a CIA (search) operative. The person should not work at the headquarters. The person should be under the so-called unofficial cover. A person would be working in some warehouse or some building somewhere else.
Very important. Legislative history makes very clear that the fact that the government is not publicly identifying you as an agent is not sufficient. Affirmative steps -- has to be a real effort in accordance with the principles of tradecraft.
HUME: All right. And when the person discloses this information, are there other facts that have to be attended to that disclosure that are...
RIVKIN: Yes, there, including the fact that the person’s identity is being disclosed, must have been overseas, either at the time of disclosure over the last five years window. Remember, it’s a very narrowly crafted statute. The purpose is to protect American agents overseas from being killed.
HUME: But let me just -- I want to get to that in a moment. But what about this question of the intent of the person disclosing the information? Are there requirements about that?
RIVKIN: Yes. Legislative history makes clear that the real intent should be to undermine intelligence capabilities of the United States. This is what I call a very specific intent statute, crafted very narrowly. So there has to be a particular type of intent on the part of the person.
HUME: All right. Now, the person being identified has to be what’s called a covert agent.
HUME: And the definition of a covert agent, obviously, is somebody, who, as you described it, the government is -- whose mission the government is trying actively...
RIVKIN: Operating on unofficial cover.
HUME: But you mentioned overseas. Tell me about that.
RIVKIN: Right. Again, the statute makes it very clear that you have to be overseas either at the time the disclosure took place or at least within the last five years. Because, again, the purpose is not to protect a person from some mild criticism on a college campus, it’s to make sure you don’t get killed and lost, by definition can only occur in areas where the United States does not exercise real control.
And what’s interesting here is Mr. Wilson himself in his book makes clear that Valerie Plame was not posted overseas within five years of that disclosure. So that fact alone, Brit, would be sufficient to definitively establish that the statute was not broken.
HUME: So if Wilson is correct in what he says in his book about he and his wife having returned, both of them from overseas, in 1997, we’re talking about some disclosure that occurred in 2003, that would place her outside the realm of the definition of a covert agent with purposes of the statute.
RIVKIN: Within this very narrow statute. Plus, the fact that she was an analyst evidently at the time traveling around Washington, going to interagency meetings, briefing people, none of which are wrong things, but utterly incompatible with your status as a covert agent, because you just sort of don’t go back.
She clearly was a member of a clandestine service at one point in time, and sort of gravitated towards being an analyst. Nothing wrong with that, but you sort of don’t go back from that. Any intelligence expert will tell you that.
HUME: This sounds like a burden of proof and a standard that it would be almost impossible for this prosecutor to meet in this case, so why is this taking so long? Last question.
RIVKIN: Unclear. But let me point out, it’s not just the burden of proof. One of the reasons the statute has been passed on this way is because of First Amendment considerations, which the media and your colleagues should certainly strongly keep in mind.
HUME: Gotcha. Thank you very much. Good to have you.
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