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Will the Precedent Set by the Indictment in a Pentagon Leak Case Spell Trouble for Those Who Leaked Valerie Plame's Identity to the Press?


Monday, Aug. 15, 2005

Tomorrow, August 16, a former Pentagon official and two former employees of a pro-Israel lobby organization, the American Israel Public Affairs Committee (AIPAC), are scheduled to be arraigned in a federal district courthouse in Alexandria, Virginia. All three are being charged by U.S. Attorney Paul McNulty with violating a little known provision of the Espionage Act.This provision makes it a crime to conspire to communicate classified information without proper authorization.

Meanwhile, across the Potomac River in Washington, D.C., Special Prosecutor Patrick Fitzgerald will be continuing his grand jury investigation. Fitzgerald has been making headlines with his probe into whether senior Bush administration officials who leaked classified information regarding the identity of covert CIA operative Valerie Plame (a.k.a. Valerie Wilson) to columnist Robert Novak and others in the press committed a crime.

So far, defenders of the White House have been quick to point out that Karl Rove and others who appear, from information so far made public, to have played a role in disclosing Plame's identity have not violated the stringent thresholds of the Intelligence Identities Protection Act. That Act makes it a crime to publicly disclose the identity of a secret agent in certain circumstances.

But those circumstances may not apply in the Plame case - as FindLaw columnist John Dean has explained. The IIPA sets a high threshold for prosecution, including proving beyond a reasonable doubt that the accused knew the person being outed had "covert" status. This, in turn, requires a variety of conditions relating to "covertness" to first be established. (For example, the prosecution must prove that the agent had served outside the U.S. within the past five years).

In contrast, the Espionage Act requires no such proof of "covert" status. For this and other reasons, it can be construed more broadly than the IIPA.

I will argue below that, if McNulty's interpretation of the Espionage Act serves as a guide, then the Plame leak, too, could easily be construed as a violation of the Act.

And that, of course, could spell legal trouble for those in the Bush administration who outed Plame, for even if Intelligence Identities Protection Act charges based on the Plame leak won't stick, other charges well may.

The Allegations of the Indictment in United States v. Franklin

Here are the alleged facts of the Virginia Espionage Act case, as set forth in McNulty's indictment:

On the morning of February 12, 2003, Lawrence Franklin, the Iranian desk officer working in the Office of the Secretary of Defense, met with Steven Rosen and Keith Weissman. Both Rosen and Weissman worked at AIPAC - Rosen as the director of foreign policy issues and Weissman as a senior Middle East analyst.

Over breakfast, Franklin allegedly provided to Rosen and Weissman classified details from a draft Pentagon policy document that he was helping prepare. According to the indictment, the disclosure was to be one in a series of leaks of national security-related information pertaining to topics such as attacks on U.S. forces in Iraq and plotting by Iranian operatives against Israeli agents.

Allegedly, what Franklin leaked to Rosen and Weissman was promptly relayed to Israeli Embassy officials, Washington think tank analysts, and journalists. In one conversation, Rosen even allegedly boasted to a journalist, "I'm not supposed to know this."

The indictment is able to provide details like this because, unbeknownst to the troika, the U.S. Attorney's office had surveillance in place throughout the course of the alleged conspiracy. Accordingly, it appears to have amassed mounds of evidence against the defendants.

The Charges in United States v. Franklin: Conspiracy to Violate the Espionage Act

The indictment charges against all three men with conspiracy to communicate national defense information to persons not entitled to receive it in violation of 18 U.S.C. § 793(g) - a provision of the Espionage Act that requires that at least one of the co-conspirators acts in a manner to "effect the object of the conspiracy." (The "overt act" requirement is a common feature of conspiracy law, designed to prevent mere conversations from becoming the basis for criminal charges.)

To this end, the grand jury has also indicted Franklin on three counts of violating 18 U.S.C. § 793(d), which makes it a crime for a person, "lawfully having possession of, access to, control over, or being entrusted with . . . information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation," to communicate it "to any person not entitled to receive it." The indictment asserts that Franklin's disclosures to Rosen, an American lobbyist, violated the Espionage Act. (Each violation carries a prison term of up to ten years.)

In addition, Rosen has also been indicted on one count of violating 18 U.S.C. § 793(e), which makes it illegal for someone who is not authorized to have access to classified national defense information to "willfully retain," let alone "willfully communicate," such information.

The implication of the charge against Rosen is, strikingly, that any private citizen who receives classified information, and then turns around and discloses it to any other private citizen, is violating the Espionage Act.

United States v. Morison: A Federal Appeals Court Construes the Espionage Act Broadly

The Espionage Act was primarily enacted to punish those who passed classified information to agents of foreign governments. The most famous prosecution under the Act was the trial of Ethel and Julius Rosenberg, who were executed based on claims they acted treasonously.

In the mid-1980s, however, the Espionage Act was applied to a case in which the relevant link was not to a spy, but to a journalist. More specifically, the Act served as the basis for the prosecution of a former U.S. Navy analyst, Samuel Morison, who mailed secret satellite photos to Jane's Defence Weekly, a popular British military affairs magazine. Morison was convicted of violating 18 U.S.C. § 793(d) and (e). (Morison was also convicted of violating 18 U.S.C. § 641, which makes it a crime to purloin and sell any U.S. government record or document without authorization).

On appeal, Morison asserted that his conviction could not stand because the Espionage was intended to be applied only to cases of "classic spying and espionage activity," in which the accused transmitted "national security secrets to agents of foreign governments with intent to injure the United States." In the words of the U.S. Court of Appeals for the Fourth Circuit, Morison's defense was that he was not guilty because "he leaked to the press; he did not transmit to a foreign government." The Fourth Circuit roundly rejected his argument, pointing out that both statutes under which Morison was convicted, by their plain language, apply to "whoever" has access to national defense information: "The language of the two statutes includes no limitation to spies or to 'an agentof a foreign government. . . .' It covers 'anyone.' It is difficult to conceive of any language more definite and clear."

The Court similarly rejected Morison's attempt at a First Amendment defense. It rejected any contention that the Amendment "offers asylum under those circumstances, if proven, merely because the transmittal was to a representative of the press. The First Amendment, in the interest of securing news or otherwise, does not "confer a license on either the reporter or his news source to violate valid criminal laws. . . ."

The court refused to allow the defendant to "invoke the First Amendment as a shield to immunize his act of thievery."

Morison also contested his conviction on grounds that two terms contained in the Espionage Act - "related to national defense" and "willfully" - are unconstitutionally vague.

During the trial, the district court judge had instructed the jury that in order to prove that the purloined material "related to national defense," all that what necessary was to prove that material "would be potentially damaging to the United States or might be useful to an enemy of the United States" and the material was "not available to the general public." In the appellate court's view, this was specific enough to avoid a vagueness challenge.

To support it decision, the Fourth Circuit panel drew on the D.C. Circuit's ruling in its 1983 opinion in Ellsberg v. Mitchell. There, the D.C. Circuit opined, similarly, that national defense information could be broadly defined to encompass any information whereby "there is a 'reasonable danger' that revelation of the information in question would either enable a sophisticated analyst to gain insights into the nation's intelligence-gathering methods and capabilities or would disrupt diplomatic relations with foreign governments."

By this standard, the Fourth Circuit concluded, the reconnaissance photos Morison purloined and transmitted to the press were undeniably materials "related to the national defense."

The Fourth Circuit also rejected the vagueness challenge to the word "willfully" - a fairly common term used to describe the requisite criminal intent in federal and state criminal laws. According to the Fourth Circuit, it was sufficient, as the trial court instructed, to define an act as done "willfully" if it is "done voluntarily and intentionally and with thespecific intent to do something that the law forbids."

The court added that government employees - especially those with security clearances - would know they were attempting to do something illegal; after all, they were required to first familiarize themselves with the laws pertaining to the disclosure of classified information before receiving security clearances. For them, then, only proof of volition and intentional conduct with respect to the leak would be needed.

Though Morison's conviction was upheld by the Fourth Circuit, President Clinton later pardoned Morison.

Could This Precedent Lead to United States v. Rove?

Could the leak of Valerie Plame's identity as a CIA agent lead to similar Espionage Act charges?

First, what about charges under 18 U.S.C. § 793(d)?

Robert Novak identified his sources as "two senior Administration officials." Depending on their positions, they - or their own sources - might have authorized access to Valerie Plame's identity, as the law requires.

In addition, Plame's identity as a CIA agent would match another of the law's requirements - that the leak disclose "information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation." In the Morison case, such information was defined as that which raised "a 'reasonable danger' that revelation of the information in question would either enable a sophisticated analyst to gain insights into the nation's intelligence-gathering methods and capabilities or would disrupt diplomatic relations with foreign governments."

Certainly, the identity of a CIA agent - particularly one who had worked abroad, as Plame had - would fit the bill. And crucially, it would seem to fit the bill whether or not that agent could fill the technical requirements by which the IIPA narrowly defines "covert" status. As noted above, proof of "covert" status simply is not required in an Espionage Act prosecution; the Act's requirements are different.

There's little question Plame's identity was, at a minimum, sensitive, national-security related information. No wonder, then, that a classified State Department memo discussing Plame, which was in the possession of White House staff during the week of the leak, stamped "Secret" around the paragraph identifying Plame.

Finally if the leaker (or leakers) were calling up (or answering the calls of) journalists to proffer this information, it should be easy to prove, as the statute requires, that they "willfully communicate[d] . . . the same [information] to any person not entitled to receive it."

Indeed, the rule from the Morison case, as readers will recall, is that it will be especially easy to prove "willfulness" on the part of someone who, by virtue of receiving a security clearance, had been educated in the law. And as readers will also recall from the Morison case, journalists like Novak and Matthew Cooper of Time, who lack security clearances and learned the leaked information, were obviously "persons not entitled to receive" that information.

But wait. There's more. According to Novak and Cooper, there was more than one source in the Plame leak. That could translate into separate conspiracy charges under 18 U.S.C. § 793(g), which could add to an already considerable prison term.

For all these reasons, it would be wise for onlookers to remember, with respect to the Valerie Plame investigation, that just as many roads may lead to Rome, more than one may lead to jail for one who leaks national security-related information, as the Plame leaker, or leakers, did.

Louis Klarevas is Assistant Professor of Political Science at City University of New York-College of Staten Island. He also teaches in the graduate Global Studies program at New York University.

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