Charmingly Naive

Via Jane Galt, we find a WSJ piece puzzling over the question of whether the Plame leakers could ever be prosecuted under the Intelligence Identities Protection Act.  The Journal seems to think that no crime has been committed (or at least, no crime that could be tried), so we should all knock off for the holidays.

Well.  Although I could argue the merits of the hypothetical case against the Plame leakers endlessly, this WSJ piece is daft.

First, as Mark Kleiman notes, there are other laws against leaking classified information beyond the Intelligence Identities Protection Act cited here (although I suspect there are more, and milder, laws than those noted by Mr. Kleiman).

Secondly, forget about Valerie Plame and think about Martha Stewart.  An aggressive prosecutor might bust some White House folks for obstruction of justice or perjury even if the underlying incident was not indictable.

The idea that Fitzgerald should close up shop before he has mustered all the available evidence and had a chat with any leakers he can identify seems absurd.

MORE:  I have lots of useful links at this timeline.  And didn't Jonah Goldberg embrace this WSJ piece a few days ago in the Corner?

SINCE YOU ASK:  Long time readers will remember that I have been defending the Administration on this scandal since before it was a scandal.  Let's see: I offered non-criminal explanations for motive and circumstances in October 2003; I whooped when the Senate Intel Report hammered Joe Wilson; I marveled when Kevin Drum suggested a sinister alternative explanation for the behavior of the Ambassador and his wife; and I mocked the Times' bleatings just last September.

My current view is that Fitzgerald will not indict anyone, but the WSJ does not persuade me that he should quit now.

Comments

[Norman Rogers]

What's daft is your one word description of the WSJ piece. They're spot on.

Just which "White House folks" do you think need "busting"? Tell us what "crimes" they committed. Cite the statutes.

Or shut up.

[Cecil Turner]

Norman,

That's not entirely fair. We've gone over the issue several times here, including the statutes (though I agree with you on the particular point)--in fact, here's one of my old comments that basically makes the WSJ case:

The relevant statute requires the leaker: 1) have/had access; 2) intentionally disclose it; 3) to an individual not authorized to receive it; 4) knowing the information identifies the agent; and 5) knowing the US is taking "affirmative measures" to conceal the relationship. The chances of proving all those elements against anyone but a CIA agent publishing a book of agent identities--which of course was what the law was written to prevent--looks to me to be about nil.

And Mark Kleiman's attempt to apply the statutes for leaking defense information has some obvious problems (the biggest being that it applies rather better to Wilson's original NYTimes article).

Finally, the most likely source for a leak still appears to be the State Department's intelligence memo cited here. If so, it's hard to see how any laws were broken.

[TM]

Uhh, Norman, "shut up"? I have been defending the White House on this issue since before most folks knew it *was* an issue. The subtle reminder was in the second paragraph - I coud debate the merits of this all day, and I have yet to be convinced that the only plausibe (or likely) explanation is criminal.

But all that said, the fact remains that leaks of classified info are against "the law", and, although I can not cite a specific statute, I am pretty sure it is not just the Intelligence Identities Protection Act (or how would we investigate something like this?)

And in any case, my recent post noted obstruction of justice and perjury, either of which can happen after the investigation begins.

[Thomas J. Jackson]

Now where would we be if the government actually took action against people who leaked secrets or stole them? What would happen to the Los Alamos staff or former White House staff with a habbit of stuffing classified documents into their underwear?

I think you've been hitting the Christmas parties early. Perhaps you ought to reexamine your priorities regarding security violations.

[Cecil Turner]

TM,
The categories for prosecuting disclosure of classified information basically fall into three areas: defense information, crypto, and diplomatic codes. (And the IIPC add-on, which is quite narrow). There are also civil penalties for violating the Classified Nondisclosure Agreement, and an agreement is required before access can be granted (good overview here). But none of the above appear to apply to the Plame case.

The Senate example you gave fits rather squarely into the crypto section. Section 798: "Disclosure of classified information":

(a) Whoever knowingly and willfully communicates . . .any classified information--

(4) obtained by the process of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes--

That sort of information has been recognized as some of the most sensitive national secrets at least since the "Magic" intercepts of the WWII era. If the IIPC statute doesn't apply (and I can't see how it could), this is clearly in an entirely different, and less serious, category. I agree the best bet for prosecution might be obstruction of justice, but by all accounts the White House and staffers have been fairly cooperative--and in the absence of an underlying crime, even that becomes problematic.

[Jor]

Lalala, conservatives don't think WMD proliferation is important. What will we tell the children?

[TM]

I will be darned. As I read through that paper on non-disclosure, there does seem to be a catch-all prohibition on disclosing "classified information". And it seems odd to me that the *only* protection of our agent's identities would be the very specific "Agee Act", so I would think that, if Ms. Plame's association with the CIA were classified, a White House official might have slippled up.

However, this excerpt is very interesting:

Question 13: What is the threshold of liability for violating the nondisclosure provisions of the SF 312?

Answer: A party to the SF 312, SF 189 or SF 189-A may be liable for disclosing "classified information" only if he or she knows or reasonably should know that: (a) the marked or unmarked information is classified, or meets the standards for classification and is in the process of a classification determination; and (b) his or her action will result, or reasonably could result in the unauthorized disclosure of that information. In no instance may a party to the SF 312, SF 189 or SF 189-A be liable for violating its nondisclosure provisions by disclosing information when, at the time of the disclosure, there is no basis to suggest, other than pure speculation, that the information is classified or in the process of a classification determination.

Emphasis added. Since there are plenty of scenarios in which they did not know her past life was classified, the leakers might still be OK.

Well, I still think that Fitzgerald will pursue this either until he has the facts or exhausted all avenues for getting them. To stop now because there is *probably* no indictable offense is going to be a very unsatisfactory outcome - he widl do better if he can say, "I have established the facts, and there is nothing to indict." Which is my guess as to where we are headed, but it may take longer than the WSJ would like.

[Cecil Turner]

"As I read through that paper on non-disclosure, there does seem to be a catch-all prohibition on disclosing 'classified information.'"

That's correct, but the catch-all is for violating the non-disclosure agreement, and unlike the specific statutes, the liability is civil, not criminal (i.e., lose your clearance and your job). Reference the second question on the purpose of a 312:

Secondly, by establishing the nature of that trust, those responsibilities, and those consequences in the context of a contractual agreement, if that trust is violated, the United States will be in a better position to prevent an unauthorized disclosure or to discipline an employee responsible for such a disclosure by initiating a civil or administrative action. [emphasis added]

"Well, I still think that Fitzgerald will pursue this either until he has the facts or exhausted all avenues for getting them."

Here, I think you're spot-on. And in fact, I'd wager the Administration is pressing for a complete investigation and report, in the expectation of receiving a clean bill of health.