Plame and the Espionage Act
By Dan McLaughlin Posted in User Blogs — Comments (51) / Email this page » / Leave a comment »
Promoted from Diaries by Leon H...
Tom Maguire, after eviscerating some spin from Josh Marshall on the Plame story, asks for legal help:
[Mark]. Kleiman has argued that, rather than pursuing a prosecution under the Intelligence Identities Protection Act, Mr. Fitzgerald might try for a conviction under the Espionage Act. We have met skeptics. But let's save Mr. Kleiman from tearing his hair out in frustration - some enterprising reporter might want to check with a few lawyers and see whether that statute might apply. (Of course, if there were any lawyers in the blogosphere, they might want to join in, too. . . )
Well, let's see what I can do.I've expressed my skepticism on this before (see the post Maguire links to), but of course that was without reading the caselaw. Being a lawyer myself with some experience reading criminal statutes, I did a bit of digging to see what else I could find. Now, with limited time on my hands and no paying client to do the kind of thorough online research I would otherwise do, my thoughts here are preliminary, not comprehensive (all I did was read a few cases listed in the US Code Annotated). (Standard disclaimer: this post is not legal advice). So, someone willing to spend some time and money on more thorough research may come to different conclusions. But, for what I can offer based on that limited review, I came up with a few preliminary thoughts on the Espionage Act. First, the as I noted in the post linked above, the key issues in an Espionage Act prosecution are:
a. Whether the information disclosed by Rove or others about Valerie Plame was "information relating to the national defense." (The National Defense requirement).
Factually, of course, this depends on what was disclosed - Rove apparently told Cooper that Joe Wilson's wife worked for the CIA. Is that enough? Does she need to be named (the name could be found online once you knew she was Wilson's wife)? Do you need to disclose that she had been covert?
b. Whether the person making the disclosure "ha[d] reason to believe" that the disclosed information "could be used to the injury of the United States or to the advantage of any foreign nation". (The Scienter requirement).
1. As to the National Defense requirement, there is caselaw holding that information relating to US intelligence-gathering can be covered by the statute. In Gorin v. United States, 312 US 19, 29 (1941), the Supreme Court held that a jury could find that this requirement was satisfied by the the defendant's disclosure to the USSR of US Naval Intelligence reports on Japanese activities in the US:
As they gave a detailed picture of the counter-espionage work of the Naval Intelligence, drawn from its own files, they must be considered as dealing with activities of the military forces. A foreign government in possession of this information would be in a position to use it either for itself, in following the movements of the agents reported upon, or as a check upon this country's efficiency in ferreting out foreign espionage. It could use the reports to advise the state of the persons involved of the surveillance exercised by the United States over the movements of these foreign citizens. The reports, in short, are a part of this nation's plan for armed defense. The part relating to espionage and counter-espionage cannot be viewed as separated from the whole.
The Fourth Circuit reached a similar conclusion in United States v. Truong Dinh Hung, 629 F.2d 908, 918 (4th Cir. 1980), permitting the conviction of individuals who disclosed, to the Vietnamese government, information including the "names of United States sources for intelligence about the Vietnamese government."
While both the Gorin Court and Judge Learned Hand of the Second Circuit in United States v. Heine, 151 F.2d 813, 815 (2d Cir. 1945), expressed alarm at the First Amendment implications of an overly broad definition of the National Defense requirement, it seems clear that - unless there has been subsequent caselaw calling Gorin and Truong Dinh Hung into doubt - information bearing upon US intelligence-gathering methods can, at least in some cases, be covered by the statute.
(Were I representing a defendant charged under these circumstances, I might also try to argue that the Espionage Act is either superseded by, or that the National Defense requirement is subject to the definitions in, the Intelligence Identities Protection Act, given that the latter statute is both subsequently enacted and more specifically targeted to the protection of identies of intelligence agents.)
2. Gorin expressly held, at 312 U.S. at 31-32, that the ultimate question of whether the prosecution had satisfied the National Defense requirement was for the jury to decide. Thus, in a prosecution of Rove or other Bush Administration officials, unless the Court concluded as a matter of law that the information disclosed was too removed from the national defense to sustain an indictment, the defense would be permitted to argue to the jury that, given Valerie Plame's employment as a desk-bound Langley-based analyst, and the amount of time since she had worked in the field, there was simply no substantial "relati[on]" between her status as a CIA employee and the national defense. As I noted in my prior post, a creative defense attorney might even find a way to argue to the jury that the relation to national defense was further undermined by her involvement in Joe Wilson's campaign to spread public falsehoods about his own reports to the CIA during a time of war.
Of course, you should immediately see one of the practical problems that would face Patrick Fitzgerald in using the Espionage Act: while the Intelligence Identities Protection Act has a strict definition of "covert agent," the more broad-ranging definition of the National Defense requirement in the Espionage Act would require the prosecution to put on evidence, in open court, of the relation between Plame's identity and activities important to intelligence-gathering, evidence that might itself compound the harm involved. While a politically-prominent defendant would want to tread softly on forcing such proof into the open, and while there are sometimes procedures used to protect against public disclosure, the mere risk that a prosecution could compromise intelligence-gathering efforts would be a disincentive to bring charges under the more open-ended statute.
3. The Scienter requirement is the most troubling one for the prosecution. <u>Gorin</u> held that the Scienter requirement saved the statute from the challenge that it was unconstitutionally vague:
[W]e find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring 'intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.' This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established.
Gorin, 312 U.S. at 27-28 (footnote omitted). The statute was subsequently amended to require only reason to believe that the information "could be used," not "is to be used," to the harm of the US or the benefit of a foriegn power. At first glance, that sounds pretty broad, but as I noted before, this yet again brings into the debate the issue of whether the person making the disclosure had reason to believe that there could be actual harm flowing from the disclosure of Plame's identity, a matter that appears to be hotly disputed. Certainly, a criminal conviction would not be sustained on the basis of mere slippery-slope conjecture, but would require evidence that the defendant actually had reason to believe that such harm could potentially ensue in the specific case of Valerie Plame.
Moreover, the Fourth Circuit in Truong Dinh Hung, 629 F.2d at 919, and United States v. Morison, 844 F.2d 1057, 1070 (4th Cir. 1988), stressed a different point: that the statute requires that the disclosure be made "willfully." As the Morrison court noted, that required proof of the "specific intent to do something that the law forbids. That is to say, with a bad purpose either to disobey or to disregard the law." (The Truong Dinh Hung court approved a similar instruction, which also defined bad faith as a "design to mislead or deceive another. That is, not prompted by an honest mistake as to one's duties, but prompted by some personal or underhanded motive."). And the Supreme Court has only gotten stricter in the years since 1988 on the definition of "willful" conduct in the criminal context, sometimes even requiring proof that the defendant knew of the law in question. A prosecution based on carelessness - by someone who knew that Plame worked for the CIA and never bothered to check whether she had ever been covert - would, I suspect, go nowhere fast, given the willfulness requirement.
- A number of courts - most notably the Heine court, and more recently Morison - have limited the statute's reach to information that "ha[s] not been made public and [is] not available to the general public." This seems like it is not a requirement of strict secrecy. In any event, it would seem that this requirement, as with some of the others, would open the door to litigation over the degree of secrecy of Plame's identity and the extent of efforts undertaken to preserve that secrecy. See United States v. Enger, 472 F. Supp. 490, 508 (D.N.J. 1978) ("In the course of the proofs, evidence bearing upon the issue of secrecy will be relevant, for, as the Court said in Gorin, '[w]here there is no occasion for secrecy, . . . there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government.'"). See also United States v. Dedayen, 584 F.2d 36, 39-40 (4th Cir. 1978).
- The Fourth Circuit held, in Morison, 844 F.2d at 1070, that the Espionage Act covers information leaked to the media, so that would not be an obstacle (although in an interesting side note, the First Amendment challenges raised there by the Washington Post and other newspapers led Judge Harvie Wilkinson to file a concurring opinion worrying over those concerns).
Legally, the Scienter requirement would require proof as to what harms the leaker(s) would have had reason to believe could come about at the time. While evidence of what actually came to pass might be admissible, it wouldn't be probative, especially where there was an unanticipated intervening event (i.e., Plame using the front company's name to make political contributions).
Again, we would go back - as always - to the question of what the leaker(s) knew of her covert status. If they had no idea she'd been in a position to be affiliated with a front company, this sort of thing would not be legally foreseeable.
Can Chris Matthews find worse Republicans to have on his show? No offense if there are any Ed Rogers fans around here but that guy is horrible on Hardball everytime he is on.
Last night Matthews asked him why the GOP keeps attacking Wilson's credibility if this is about Rove. Clearly the answer here is that it is relevant because the point of Rove even responding to Cooper's questions about the matter were to inform Cooper that Wilson was lying about being sent over by the Veep.
Did Rogers point that out? No, he mumbled something about Wilson probably voting for Kerry in '04. Bob Shrum jumped all over that by saying "actually Wilson voted for Bush in '00." Rogers looked like a deer in headlights.
For good measure Rogers later responded to a question about the polling data which suggested americans felt negative about the economy by saying the economy is shaky because of gas prices. Nice spin for the GOP side, Ed. I think either we do a much worse job at sending out talking points to our spinners than the dems, or Matthews purposely finds the bottom of the barrel GOPers to make us look bad.
floating around here somewhere that says Wilson voted for Gore in 2000 (he did vote for Bush 41 in 1992 though).
re: Bob Shrum jumped all over that by saying "actually Wilson voted for Bush in '00." Rogers looked like a deer in headlights.
But Rogers sat there looking surprised when Shrum made the claim. Any GOP spinner that goes onto these shows not prepared to react when dems lie is not prepared to go on the shows. Bob Shrum never met a half-truth that he couldn't cut in half... But that's why they survived the Lewinsky scandal - unbelievable message discipline by their surrogates.
Ann Coulter always complains about how bad our surrogates are... Half the time David Gergen is the "GOP representative" and the other half our guys want to make friends with the MSM... Ugh... In any event, our people need to get in gear on this sucker - the MSM smells blood and don't care that they have no facts to support their BS.
I think the GOP has horrible message discipline, and horrible party discipline in general. That is one reason why the dems can be in the minority all over the place and still run rings around the GOP in the media.
Drudge is giving it the siren...go to the Times site, or I discuss it on my blog...my take: Rove is fine, but someone else (Ari Fleischer?) may be in big trouble...
Mr Rove blew a hole in the hull and that is what is controlling here. All the legal lacework around the edges may affect his sentence but not the outcome. The agency has weighed in, and Mr. Rove's experience is a liability if he seeks to explain himself by saying he didn't know the safety was off before he pulled the trigger.
Strategically, we are behind the curve on this because the issue now is not whether RRove can be redeemed but rather how does this impact our party. Which is to say, has he or will he shortly become a sea anchor which cannot be reeled in, and which, if left dragging will imperil the entire ship. More to the point, how will this case limp along and at what stage will it be 12 months hence? Any savvy captain knows what needs to be done.
has been that Novak was the main WH source for the Wilson/Plame stuff, and that Novak's main source was out of the CIA not the WH, although some other WH person may be involved.
Why are you thinking Ari?
July 15, 2003. The same month Wilson wrote his op-ed and one day after Novak's story ran. Interesting.
Now I've really got to stop paying attention to this story.
he resigned on May 16 but his last day was July 14.
...the timing...what we know now is this: Rove didn't initiate the call, and his total words to Novak were 'yeah, I heard that, too' - bye-bye, vindictive slur campaign theory! Now, who is Judy Miller covering for?...
McClellen, he really got baptized in a trial by fire, the day her showed up for work, I am amazed he is still there.
I am still thinking that this was going around in the journalist circles, who were all probably investigating the same story-I just can't help but think the source for the plame stuff was CIA.
It appears Rove and Libby are telling the truth at this point, when they say they learned of the Plame stuff from journalists.
companies the CIA uses now for air transport, exposing dozens of employees to retribution, etc. this was different exactly how?
Fleischer was an amazing press secretary by any account (turned the WH press corps into obedient lap dogs), and I was always baffled by why he stepped down. It can't be a coincidence that someone so effective would resign the day this thing broke-- It seems credible that the WH knew of his involvement and were afraid the story would break before the election.
I disagree that it's evidence of Rove's innocence, but it's certainly an interesting twist.
We are reading leaks about aleak, and I would submit that we are not actually very likely to be seeing the full story on this at all.
Rove has not yet been named a target of this investigation. It is not at all clear he ahs done anything other than to become the focal point of a lot of people who would like to see him gone anyway.
I think unless he is up for obstruciton or perjury or ther eis a lot more to this, in 12 months he will still be designing a goo whooping for the dims, and the dims will be really p'd off.
About like they were a year ago.
who do you think he called, and why would the only guy willing to write the story call Rove, you would think if Rove was shopping the story, Novak would have been the first he shopped it to considering their past (wasn't it Novak Rove leaked to during the BUsh 41 campaign?).
I honestly am not even seeing much WH involvement in the leak at this point-mostly on my gut, for one reason the WH just doesn't seem to up in arms over this, a lot like they were during the TANG stuff-more like letting the other guys find enough rope to hang themselves with sort of behavior, and the other is that I really think Novak's source was a CIA leak, not a WH leak. I can't prove either, it is more in tinfoil hat realm, but the tinfoil hats on this side of the ditch seem to be holding up pretty well so far.
this is the response of the WH.
THey really haven't said much or done much, it reminds me a lot of the TANG stuff with Rather and CBS. They sort of kept quiet and let CBS hang themselves with their own rope.
I think Rove and his attorney and the WH know Rove is probably out of the fire on this one, and that other than charges of "ethics" which will be hypocritical given the fact that the dems leak like sieves the WH and Rove escape anything bad with this one.
Now I could be wrong, and the WH response may just be the WH playing ostrich, but my gut tells me they know something, and that something is that Rove and other WH people are in the clear criminally.
one more.
May 6, 2003, Nicholas Kristof:
I'm told by a person involved in the Niger caper that more than a year ago the vice president's office asked for an investigation of the uranium deal, so a former U.S. ambassador to Africa was dispatched to Niger.
So May 6 Wilson leaks to Kristof. May 16 Fleischer tenders his resignation. Is it possible that Fleischer shopped around Wilson/Plame in the interim and was shown the door? It would make some sense of the subsequent stepping down the day Novak's article hit the streets.
Now someone please ban me so I won't comment on this silly topic again! (just kidding...put those itchy trigger fingers away please)
How long will it take him to accuse Rove of setting this whole thing up as a media rope-a-dope?
How long will it take the Democratic Underground to accuse the media of "burying" his accusations?
Go read Nick's REDHOT post about today's NYT article and then read the article, and then see if it may even clear McClellan. Maybe Rove wasn't even involved in the leak at all. He was just taking phone calls.
This is fast approaching TANG standards, and the WH silence/minimalism is oddly reassuring.
This weekend should be a "what's up with Miller" angle, and that will be the next shoe to drop.
This is getting hilarious.
maybe, although I don't know that he would have been shopping it then, or the story against Wilson would have been ready to go within a couple of days, and Novak didn't print for over a week.
But maybe he was digging up dirt, and talking to journalists, and with his digging and talking he was the catalyst that got Novak on the trail.
Shoot this new revelation has mostly just changed the speculation-now instead of Rove it is "who if not Rove."
You are hilarious! You are certainly smoking the Rove crack. :>
Seriously, I don't think Ari Fleischer is in the hot seat. I could be waaaay wrong, but I don't think so.
Ari Fleischer had just gotten married and at this time, Bush was basically telling people to jump ship, or they needed to stay through the campaign and election. He jumped ship and Scotty came on board.
On a side note, I liked Ari much better than Scott. Ari handled the press jerks better.
He probably called Novak-- who said that the information was pushed on him. He also happened to identify an undercover agent in the CIA. He didn't use her name, but I think it;s pretty clear that that's not the only way to identify someone. Even if we believe his story that it was only to prevent an inaccuracy in Wilson's story, it's still a crime. You can stick to your belief that Rove found out about Plame from a then classified document and didn't think to check if she was undercover before outing her-- but I just don't think it adds up. The fact that he called Chris Matthews a few days later to say that Plame was "fair game" implies to me that he knew she shouldn't have been before Novak's story.
Anyway, it's unclear whether or not Rove is guilty of a crime. It is clear though, that he was at least partially responsible for outing an undercover agent at the CIA-- which should be grounds for dismissal under any administration. It's not as though this is out of character for Rove-- as effective as he is, his success often comes with some questionable ethical baggage.
Wilson is turning out to be a deliberate and well trained liar. The NYT, who called for the SP, knew from day one Rove was not really behind the story nor leaked at all. The dems who egged this on were just hoping to peel Rove away from Bush.
Schumer, Wilson, the NYT, and WH press corps will all fal hard if this story unravels the way it looks like it might.
Um the source indicates that Novak called Rove and that it was from Novak that he learned Plame's name.
Rove is not the primary source for this story, and at the very least the portrayal of him as "shopping the story around" is false as well.
Now there may have been another administration source shopping it around, but apparantly Rove was just taking phone calls.
You got it!
Here is the quote you are looking for.
Wolf Blitzer: Who did you vote for in 2000?
Joe Wilson: In 2000? I voted for Al Gore. In 1992 I voted for George Bush.
people on the left self destruct pretty soon.
They are great at playing mum while the other guy hangs himself with his own rope. This is in the end I think going to be another one of those times.
It also explains why Bush isn't caving to pressure to fire Rove.
of nuking the US over Taiwan.
Did I miss the prosecution of the rat bastids who leaked our strategic nuke secrets during the Clinton Administration?
If I did not, I don't want to hear another word about how damaging the mentioning of the wife of a lying retired diplomat who has been activley working to hurt our war effort is a threat to national security.
This attack on Rove is, except to the infintiely naive, nothing more or less than an attack on the Prez to strip him of a good and effective advisor.
reading to much into Ari's leaving. He had recently got married and was burnt out. Would you be?
have a point.
Are you giving out odds yet that Ari shopped this around knowing he was going to throw in the towel soon?
It could be possible, but then are we back to the question of "WAS VALERIE PLAME REALLY A COVERT AGENT?" all over again?
I am trying to NOT pay attention to all this, but since Renny isn't retiring, it's all I'm left with. Sigh.
And this could silent the really shrill liars like Schumer. And to let Wilson be given such softball phony interviews knowing that he is just a sleazy has been must be galling.
Now if Rove was just clever enough to not have obstructed or perjured.
The implications this fiasco is having on Rove and the Bush administration is something we shouldn't take lightly.
and as liberal as the media is, I would have been burnt out the first month.
I am amazed he lasted that long, and I am even more amazed that McClellen is still around.
the fiasco is more on the dems side.
With the exception of poor Scott McClellan, the WH is moving on with the business of the day. As well they should.
if the reporters would just let him.
He would probably much rather talk about the Chinese threatening to nuke us than anything pertaining to Rove, Wilson, Plame or leaks.
Like the last guy in the office to sign into a betting square. Dumb luck. I just thought it was funny. I'm trying to remain completely ignorant about all things Plame. And failing miserably of late.
No idea on the NOC. Given she was using a private company as a front I'd guess "yes, at some time"....But if Novak did indeed tell Rove then he's atleast in the clear with respect to the IIPA or whatever.
that's a mighty lucky guess. :>
I refuse to do any googling on Ari Fleischer though.
Repeat after me-
"I am not going to give this whole mess anymore of my time and energy..."
Keep repeating over and over..... :>
but the Dems probably think they have more moves to make, politcially speaking. So we should not let up on bit.
Nor will any trees by cut down publishing the stories about how the NYT is going to have to cooperate in its blowing of an ongoing CIA operation which directly puts in danger men and women fighting the war on terror, when they ran the breahtless article disclosing the formerly secret CIA air transport system.
This whole scandal had me giong for awhile, but as I sadi over at taictus, the lefties are right about whose blood is in the water. But they are going to be really really surprised about just whose blood it is. And I mean surprised in a disappointing sort of way.
...must...find...a...way...out...of...this...metaphor...maze....
Once Wilson was found out to be a liar by the Senate Select Committee on Intelligence, the Kerry Campaign gave him the Heave-ho. The Donks may be giving it the Old College Try one more time to try and get the Sith Lord, but simple Jedi Mind Tricks don't work on Darth Rove. A young Padwan like Joe Wilson who never even got his parlor tricks license will now be sent out to pasture, forever to post to DemocraticUnderground.com and to be given university lecture fees.
It will pay well, but Wilson will be the fall guy at the end of the day. You will know this when the liberals, in their anger, turn on Puddinhead Joe and Valerie. This will happen. They are too far down on the food chain, and have no principals to protect them.
There probably was a significant crime committed with significant effect that Mr Fitzgerald will even imprison a reporter for not cooperating.
And the above 2 articles probably provides the rationale for the investigation.
If this is just a petty crime like perjury or obstructing justice, I dont think Miller will be imprisoned.
But first you must steer the ship of state clear of the barnacled shoals, and weigh anchor with the wind at your sails. Or perhaps you just need to be three sheets to the wind.
in bush's assessment that something illegal happened, and his promise in 2003 seems to imply that he also condemns whoever committed this 'crime.'
however, he might have offered this 'fire em' declaration in response to some of the already slanted coverage (see mr. wilson's op-ed); further research may have led to a WH determination that there was no crime, and that could explain the apparent lack of progress in prosecuting the 'leak.'
http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&contentId=A40
012-2003Oct3¬Found=true
Leak of Agent's Name Causes Exposure of CIA Front Firm
By Walter Pincus and Mike Allen
Washington Post Staff Writers
AND
Knight Ridder:
CIA Identity Leak Far Worse Than Reported
by Warren P. Strobel
Knight Ridder Newspapers
October 11, 2003
WASHINGTON -- It's just a 12-letter name - Valerie Plame - but the leak by Bush administration officials of that CIA officer's identity may have damaged U.S. national security to a much greater extent than generally realized, current and former agency officials say.
http://dailykos.com/story/2005/7/14/125141/367