Plame Case - Not A Crime?

Jack Shafer gets results!  Per the WaPo:

A federal court should first determine whether a crime has been committed in the disclosure of an undercover CIA operative's name before prosecutors are allowed to continue seeking testimony from journalists about their confidential sources, the nation's largest news organizations and journalism groups asserted in a court filing yesterday.   

The 40-page brief, filed in the U.S. Court of Appeals for the District of Columbia Circuit, argues that there is "ample evidence . . . to doubt that a crime has been committed" in the case, which centers on the question of whether Bush administration officials knowingly revealed the identity of undercover CIA operative Valerie Plame in the summer of 2003. Plame's name was published first by syndicated columnist Robert D. Novak and later by other publications.

Glenn Reynolds asks, presumably rhetorically, why the major media are coming to this realization only after the election - folks like Jack Shafer were making this argument in September 2003.  Glenn does not link to this - heh.

The "no crime" theme was also kicked around by James Taranto when the light shone on the NY Times a month ago.

However, the real "Shafer gets results" is this - back in mid February, he advised the NY Times legal strategists to get a new attorney, in a piece headlined "Fire Floyd Abrams. Hire Bruce Sanford".

Well, hello, Bruce - what does the WaPo tell us:

Bruce W. Sanford, a lawyer who handled the case for the group of news organizations, said yesterday that "it's a very poor result if somehow reporters got entangled in a net of prison sentences in an investigation which ends up with no indictment because no crime has been committed."

OK, we argued last month that this strategy was the best available, but unlikely to succeed, and we will stand pat.  Beldar reached a similar conclusion, and has a much snappier title here (with a broken link!).

Finally, here is one of the Sanford articles that set this ball in motion.

Comments

[gt]

Reynolds is a lawyer, right?

Doesn't he know that the CIA thought a crime may have been comitted and referred it to the DoJ?

That Ashcroft agreed and that an investigation by a special prosecutor is now under way.

Doesn't Reynolds know what Fitzgerald does for a living?

Does Reynolds think that Ashcroft is part of a conspiracy?

[John Thacker]

The major media have simply realized that while they do want to embarass the Administration, they also don't want to actually prevent leaks.

[Corky Boyd]

The New York Times sure thought it was a crime, and called for a special prosecutor. They got it and the baggage that goes with it. They became a target. Now they want to make things unhappen, by declaring "no crime".

The Times can't have it both ways.

Corky Boyd
Sanibel FL

[AT]

Ashcroft agreed to an investigation because of the caterwauling from the Left about how the White House was full of traitors.

They got what they wanted, and now they learn that actions have consequences.

[TM]

Doesn't he know that the CIA thought a crime may have been comitted and referred it to the DoJ?

Most of the elements of the criminal statute in question are beyond the scope of the CIA to determine.

The CIA can send a referral saying that (a) there was a leak, and (b) it identified a previously undercover agent.

That is not enough to show that a crime ocurred. And, as Jack Shafer argued in Sept 2003 (two months prior to the "bogus" announcement), making the rest of the elements stick always looked unlikely.

A conclusion now adopted by the media.

Well, that does not mean they are right now, and were wrong then. But it does mean they are saying now what I was saying then. And Glenn (although I lacked his optimism).

[jd watson]

Didn't Martha Stewart go to jail for impeding an investigation (by lying to the investigators) even though it was eventually determined that no crime had been committed?

[Neo]

They wanted an investigation. They got an investigation. Is it really necessary to presume that there is or was a crime to have and investigation.

It seems unlikely that section 421 was violated, but we must have an investigation.

Round up the usual suspects.

[Roger]

Lawyers tend to know more law than non-laywers but at least some members of each profession tend to know about the laws that apply to that profession. It is impossible for me to believe that not one of the people who knew Plame had not been undercover in 5 years didn't also know that being undercover in the past five was an element of the "crimes" to be investigated. Maybe I'm wrong. Maybe she was undercover while she was pregnant. It could happen.

[Brennan Stout]

Perhaps the CIA got their legal analysis wrong just like they've repeatedly done with their intelligence analysis.

If you're keeping score; Iraq was a slam dunk; Plamegate is a blown layup.

[Jim Glass]

"Glenn Reynolds asks, presumably rhetorically, why the major media are coming to this realization only after the election"

I'll be interested to see when Brad "Treason" DeLong gets around to noting it on his blog as even a mere possibility.

[Orion]

Most people who throw out the Section 431 provision conveniently forget there's also a http://caselaw.lp.findlaw.com/casecode/uscodes/50/chapters/15/subchapters/iv/sections/section_426.html>Section 426 that defines a "covert agent". This definition seems to exclude Ms. Plame: She was not working outside the US in a covert capacity nor had been doing so for at least the 5 years before Novak used her name in his article.

[gt]

Tom,

The CIA only made the referral. The DoJ agreed there was something there. Ashcroft agreed. And Fitzgerald still thinks so today or he would have finished his investigation.

What I don't understand is why you and others keep saying there is no crime when you have little access to the facts. Those that do have access disagree with you, at least as of today.

Why do you keep making this about the media? If you disgaree with the investigation your problem is with Ashcroft, the DoJ, and Fitzgerald. They are the real players in this and the only ones in poitiopn to say if there is evidecen of a crime or not. No one else.

[Mark]

gt

Yes the CIA made the referral. But The CIA also talk to Novak before he publish his article. They also let an analyst publish a book attacking the Bush policies. Among other things. So thus you have an organization hell bent on embarrassing the Bush White House. So how far would the CIA go to ruin Bush chances with reelection ? There might be a crime here . What the crime is not clear at this time.

Tom

What was Fitzgerld investigating before being given the Plame case ? Wasn't it about a leak on a raid in New York ?

[Brainster]

It's a shame, because this was the very first "treason" case the Left has been able to enjoy. No wonder they hate to see it go up in smoke.

[Duane]

JD Watson, no, there was no determination that Martha Stewart committed no crime- in fact, her friend pled on a related charge and was also imprisoned. She was tried on the best charge that was available with a better case. Prosecutors can elect to pursue many different charges., In Martha's case, obstruction was a better bet. I can't remember off-hand whether there was any conspiracy count, but those kinds of inchoate offense have some evidentiary advantages as well for the prosecution in federal cases.

That was one more case of "star hubris", a la Bill Clinton, thinking that you could pull anything off and pay no price, just because you are so cute.

[David Walser]

gt - You keep asserting that the CIA, DOJ, Ashcroft, and Fitzgerald "still" think there may have been a crime. That's not necessarily true. Unfortunately, governmental investigative powers are not always used in a dispassionate search for the truth. In this case, the self-interest of all involved called for a very public investigation -- even if none of the parties felt it likely a crime was committed. (That's different than KNOWING no crime was committed.)

* The CIA wants to discourage the outing of its agents. By making a stink in this case they may make potential future leakers think twice before calling the media.

* The Administration was being beat up in the press for leaking Plame's name. Editorials were calling for an independent investigation. My naming Fitzgerald to head up the investigation, the Administration moved the question to the back burner and all but eliminated the question of the White House trying to cover up a crime.

* Fitzgerald was told to do a very detailed investigation. He was likely told not to come back until he could prove the question one way or another. Given the difficulty in meeting the standard of proof required to establish a crime, an investigation into a less publicized incident may have been dropped long ago. But Fitzgerald still has a job to do -- prove that no crime was committed. (That, and annoy the people who created the fuss to begin with.)

[godfodder]

qt:
The reason this case went forward was largely political. To refresh your memory-- do you recall the claims that Bush was trying to get Joe Wilson's wife whacked as "payback" for Mr. Wilson's unfavorable report and NY Times editorial? Had it not been investigated, can you imagine the shrieking that would have emanated from the Left? The NY Times would still be covering it on their front page.

The case hasn't concluded because (at least in part) some of the journalists involved have decided to thwart the investigation. Not being a lawyer, I don't know how likely it is that any of them might go to jail for this. But if they do, it will be one more example of the cover up being worse than the (nonexistent) crime.

[Lynxx Pherrett]

Re: the 5 year window.

The Vanity Fair article has Plame stationed in Brussels in 1997 and returning (being reassigned) to the US sometime that year. Novak's article was in July 2002. Depending on when she returned, Novak's article could have been inside the five year window.

Re: a crime?

Assuming the leak occurred inside the five year window, determining whether it was a criminal violation or not hinges on identifing the leaker(s). If they just knew she was a CIA employee, but not that she was/had been covert, no crime occurred; if they knew she was/had been covert, then the leak was criminal.

This is analogous to a fire investigation. The investigators know a fire occurred, but they cannot determine whether a crime has been committed until they identify the source of the fire. The source of the fire is the key to whether or not it is a case of arson.

[narciso]

The article, was in July 2003, after the war, so she would fall outside the time window. This does not
explain however, how come there is no outcry against
Dana Priest's revelation of CIA men and material; re
the renditions jet, Jason Vest's unmasking the chief
ops man in the Nation and the American Prospect, or
Bob Woodward, revealing the identity of the Iraq
Task Force leader, or that of the chief officer in
Kurdish Iraq, before the war

[TM]

GT - did we *know* that Bill and Hillary had committed a crime during the Whitewater investigation?

Did we "know" that crimes had ocurred until the final report explained the absence of indictments, after which we switched to "knowing" that no crimes had ocurred?

(Caveat - obviously, there were plenty of indictments over the years of other participants in Whitewater)?

Or did we know that an investigation was underway, and that crimes had been alleged?

As to Fitzgerald, I "know" (based on the fact that he is still working on this) that he has not gathered enough evidence to feel comfortable either indicting, or ending the investigation.

I do not "know" that he will eventually indict anyone. In fact, I strongly suspect the oposite.

[TM]

I am moving this out of the UPDATE for now:

The DoJ agreed there was something there. Ashcroft agreed. And Fitzgerald still thinks so today or he would have finished his investigation. What I don't understand is why you and others keep saying there is no crime when you have little access to the facts.

Until we see an indictment, we don't *know* that Fitzgerald thinks there is a prosecutable crime.  Based on earlier filings, they clearly believe that the leak may have been significant.

But fun's fun - I am not sure what "bogus" means myself. If it means that eventually, there will be no successful prosecution, I agree (and said so in Sept 2003)

However, if it means that Fitzgerald should quit now, I disagree (and said that in Sept/Oct 2003, again last month, and many times in between). The ghastly process has to play out. 

Suppose Fitzgerald released a report saying that he had not talked to all the reporters or gathered all the evidence, but, despite not having all the evidence, he had concluded that the prosecution would fail. Would libs be happy?  No.  (If they were smart, they would be - they could nurse their grievance, and pretend that it was a Rove cover-up).

SO, Fitzgerald will stay on the dance floor until the last quarter drops in the jukebox.  And eventually find nothing. Or maybe he busts someone for lying to investigators, even if the underlying case does not exist.

However, to say "he thinks there is a crime" assumes too much - all we really know is, he thinks his investigation into the possibility of a crime is not complete.  And I agree.

As to "why make this about the media", why not?  The information backing their argument has been available since the Senate Intel report last July (earlier arguments were, we might say, informed speculation). Why did they not report this at the time?  Why no Times story last summer based on an interview with Sanford?  Was Plame not in the news?

[TM]

Background on Fitzgerald; his other case with Miller is described :

Even more troubling to many press analysts is Fitzgerald's effort to review the telephone records of Miller and fellow Times reporter Philip Shenon in another case. The prosecutor wants to know how the Times learned of the impending search of two Islamic charities then under investigation by Fitzgerald's office. The Times called the charities for comment, allegedly alerting them to the raid, Fitzgerald says.

Fitzgerald does have an extraordinary resume.

[gt]

I think that we know he (Fitzgerald) cannot say today
that no crime was comitted as so many on the Right claim.

Whether he can say that a crime was committed I have no idea. Maybe not.

[Kim]

It seems apparent to me that Wilson had knowledge of classified information for which he did not have clearance. What about that?
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[Captain Salty]

I know this is a tad old, but...

With reporters possibly headed to jail for refusing to reveal who leaked Plame's name, it's in the newspaper industry's best interests to make this seem like not a crime.

It's simple. If there's no crime, there's no reason to compel Judith Miller or any of the other reporters to reveal who leaked the name. If there's no reason to reveal who leaked, there's no reason to send Judith Miller et. al. to jail.

So, it's just as likely that this is a legal gambit, and Reynolds as a law professor ought to at least be smart enough to recognize it.

[TM]

it's just as likely that this is a legal gambit..

No doubt. But thre NY Times ran an editorial making this argument - pretty deceitful, unless the editors believe it, and not necessary - judges rely on court filings, not editorials.

And for the news section of the WaPo, if this filing is "just a gambit" not taken seriously be the media, the coverage is a disgrace - they should be running quotes from experts pooh-poohing the whole filing.

My official view - since the "no crime" position had convinced me in 2003, I don't have a problem with the media being convinced now; I just wish that had not taken so long.

[kim]

I'm amused by the irony of professional journalists battling to avoid telling us what is 'so'.
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[Jonah D. Wail]

A'hoy Folks:

I have such fun when sailing the waters of the cyber seas and run across a discussion forum that has run it's course and peters out into the doldrums such as this one . . . I usually simply read the yammering and set sail for more troubled waters. But I couldn' pass this one by with out dropping a little chum to see if there's any active bottom feeders left that'll take the bait.

Now that a little time has passed and there is further knowledge of who said what to whom as far as Rove/Cooper and the addition of Cheney's Scooter having a little hand in this -- and add how the Federal District Court and the appeals all the way up to the Supreme Court came back down to upholding Fitzgerald's request to have Miller spill her info -- or as she has currently elected on her own volition to keep her pie-hole shut and spend a little vacation time in the Federal Bed & Breakfast Club in Alexandria . . . Oh and not to overlook the State Department memo that was being passed around on AF-1 on the trip to Africa with Valerie's info marked "Secret" . . . here we are jolly well aren't we.

No crime originally committed?

Not according to some legal minds still tied into this Affaire De Plame Miller Novak Rove dealio ...

Anyone have an attention span long enough to read through the two (2) following pieces of EDUCATED information?

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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.

Why can't you change the elements? Because they come from the exact wording of the statute. This then is what the Intelligence Identities Protection Act of 1982 says:

"Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to received classified information, knowing that the information disclosed so identifies such covert agent and that the U.S. is taking affirmative measures to conceal such covert agent‘s intelligence relationship to the U.S. [shall be guilty of a crime]."

To figure out the elements that must be proved, you simply break this run-on sentence into subparts in the following manner:

A defendant must:

(1) have authorized access to classified information that identifies a covert agent;

(2) "intentionally disclose" the information;

(3) disclose it to one not authorized to receive classified information;

(4) know the information he is disclosing identifies the covert agent; and

(5) know that the U.S. is taking affirmative measures to conceal the covert agent's intelligence relationship to the United States.

Proof of these five elements -- and no others -- is what's required under the 1982 legislation.

So what, exactly, does the prosecutor have to prove about the defendant's state of mind under this law? Element 2 says the defendant must "intentionally disclose" the information. To determine what "intentionally disclose" means, you must follow some basic rules of statutory construction. First, you look to see if the word is specifically defined within the statute itself. For example, the term "disclosed" is defined in the Act to mean "communicate, provide, impart, transmit, transfer, convey, publish or otherwise make available."

The word "intentionally" is not defined in the statute, so you have to turn to the second rule of statutory construction, which is to see if it is defined or interpreted in applicable case law. There is little case law on the statute itself. But there's a wealth of case law interpreting the term "intentionally," because it is a term of art found in nearly every criminal statute. Its meaning is well-established and straightforward. It simply means "on purpose, not by mistake or accident." So If someone runs off the bus and accidentally leaves behind papers that expose an undercover CIA agent's identity, no crime has been committed because Element 2 can't be proven. On the other hand, if someone were speaking purposefully, as opposed to, say, drunkenly popping off at a bar, Element 2 would be satisfied.

Nowhere does this statute require proof that the defendant "wished to harm" an undercover agent or jeopardize national security. Why someone disclosed the information -- whether to prevent the publication of a story or to harm the U.S. -- is an issue of motive, not intent.

Merely semantics, you say? In criminal law, it's nonetheless a key distinction. Motive is why someone acts; intent is the person's purposefulness while doing so. If you accidentally take home your neighbor's Gucci bag from the block party, there‘s no crime because you didn‘t act intentionally. (You do have to give it back, though.) If you grab your neighbor‘s bag on purpose, you‘ve acted intentionally and you could be guilty of theft. It matters not a whit whether your motive was to get revenge on your neighbor for making too much noise or to get extra cash to hand out to the poor. Evidence of a bad motive is usually admitted as background in the proof of a criminal case, but it is almost never an element of the crime; and evidence of a good motive is usually not a defense once the intent specified in the statute is proven.

The other elements that relate to state of mind are Elements 4 and 5. To prove a violation of the Intelligence Identities Protection Act, the prosecutor has to prove that the defendant knew the information he or she was disclosing "identifies" the covert agent and that the government was taking affirmative measures to conceal that agent's intelligence relationship to the U.S. Both of these elements relate only to what the leaker knows; they don't require that he convey all of this knowledge to the unauthorized leakee.

What then does "identify" mean in this statute? Well, there is no specific definition and no case law to look to. So you turn to the third rule of statutory construction, which simply says that you apply the everyday meaning of the word. Perhaps in a through-the-looking-glass world someone could decree that to identify means to "name" and nothing else, but the statute doesn't say that; nor is that how ordinary people would use the word. There are obviously myriad ways to identify a person besides naming them, but unless a man were a polygamist, a reference to his wife -- as in Karl Rove's identification of "Wilson's wife" in his conversation with Time reporter Matt Cooper -- would certainly suffice to direct the listener to a single, specific person.

How does all of this play out in the context of the ongoing grand jury investigation into the Valerie Plame leak?

None of us can presume to know the universe of facts so far uncovered in the investigation. On the contrary, at the risk of sounding like Donald Rumsfeld, we can be quite sure that there is much that we do not know, and that some of what we think we know is surely wrong; nor can we presume to know the workings of Special Prosecutor Patrick Fitzgerald's mind. It would then be presumptuous to declare that the Intelligence Identities Protection Act is definitely still under consideration in the grand jury proceeding. But it would be no less presumptuous -- and illogical -- to declare that it is not under consideration, especially since that judgment is based on mistaken assumptions about the requirements of the law. (Interestingly, with each new commentary in the press or on TV, the statute only seems to get harder to prove.)

It is also worth remembering that prosecutors analyze evidence with a view towards presenting it in a trial, and even in the post 9-11 world, trials are not like talk shows. The parties at a trial do not hurl scattershot attacks as if they were partisan guests in the drive-by shoutings that have become the stuff of so many news programs. In a trial, both sides present evidence according to established rules that are meant to weed out rumor and opinion. Almost inevitably, over the weeks if not months of a trial, evidence that may appear persuasive on a TV show, but is actually false or misleading, loses sway when viewed in the context of the larger picture.

In painting that picture, the prosecution is not required to present its evidence so narrowly as to lose the context of the alleged crime. Right now, it's as if, when it comes to the Plame case, most of us are in the front rows of a movie theater and have no way of fully seeing what's on screen. Away from the daily drumbeat of news, rumor, and self-interested leaks, however, the picture may make a lot more (and different) sense. Within limits, the law allows the prosecution to prove its case with the wide screen that's necessary for a clearer view.

If the prosecution were attempting to prove that Karl Rove's July 11, 2003 conversation with Time's Matt Cooper violated the Intelligence Identities Protection Act, for example, it would obviously present Cooper's testimony about the conversation, and possibly the notes and e-mails that documented it. Since criminal law allows a jury to use common sense to draw reasonable inferences from the facts presented, a prosecutor could then argue that Cooper's testimony goes a long way towards proving all of the elements of the crime. (A prerequisite for any violation would, of course, be proof that Joseph Wilson's wife Valerie Plame was indeed a covert agent, but as former State Department counterterrorism expert Larry Johnson's July 22 congressional testimony makes clear, there is abundant proof of that fact.)

When it comes to the Cooper-Rove conversation, a prosecutor would assumedly argue, first, that there's no doubt Karl Rove provided information to Cooper intentionally; that is, not by mistake or accident. It strains credulity to suggest that a seasoned political operator like Rove ever says anything to a reporter that is not calculated, and Rove's purposefulness can also be seen in the details of the call. Rove knew he was talking to a reporter, not a person authorized to receive classified information. Since Cooper called Rove and was put through only after the call was screened by a secretary, we can infer that Rove made a conscious choice to speak with him. Cooper also began the call by identifying himself. Finally, Rove provided information on "deep background," a term of art which, to a reporter, means that the information can be used but the source cannot be identified. This fact alone precludes a finding that Rove was speaking accidentally or by mistake.

In addition, the prosecution would likely argue that there's no real issue on the question of whether Rove "disclosed" information. Cooper says that Rove told him Wilson's wife was a CIA agent who worked on weapons of mass destruction and that it was she, not George Tenet or Dick Cheney who was responsible for sending Wilson on his mission to Niger. He also says that Rove told him the information about Wilson's wife was "going to be declassified soon." Affirmatively providing information obviously constitutes "disclosing" it, as the term is defined in the statute. So if the jury accepts Cooper's testimony, the issue of whether Rove "intentionally disclosed" information is settled. But it could also be settled even if the version provided by the "sources close to Rove" -- that he simply confirmed information Cooper provided -- was accepted as accurate. As Rove would certainly know, a confirmation by a senior administration official conveys information to a reporter and makes it available to him for use, even if under slightly limited circumstances. Both "conveying" and "making available" are terms used to define "disclose" in the Intelligence Identities Protection Act.

Common sense precludes any serious argument that a reference to "Joseph Wilson's wife" does not constitute an identification, so the jury could reasonably infer Rove's knowledge from the nature of the information he disclosed. In other words, a jury could infer that Rove knew Wilson's wife's status was covert and that the CIA was taking affirmative measures to conceal her intelligence relationship to the government, because he said it was going to be declassified soon. Obviously, information does not need to be declassified if it is not currently classified. That the information is classified means that the government has been taking affirmative measures to conceal it.

Rove's revelations about Valerie Plame's specific work on weapons of mass destruction, as well as the claim that she was responsible for sending her husband to Niger, also give rise to the reasonable and necessary inference that he had access to detailed classified information about her work at the CIA. The only commonsense interpretation of the comment Cooper imputes to Rove -- "I've already said too much" -- is, finally, that he knew he was imparting classified information he was not supposed to impart.

Why believe Cooper? As a start, because most of what he says about the conversation is not in dispute. He is also clearly a man of principle who was willing to go to jail to protect his source. He has no motive to falsely incriminate anyone, least of all Karl Rove or Vice President Cheney's aide Lewis "Scooter" Libby. He has clearly been careful to include all the details he can recall regardless of their implications for either side -- and his account is corroborated by writings he made at the time. Perhaps most important, Cooper's version of the July 11, 2003 conversation with Rove makes sense when viewed against what we already know of the background of the entire case. That context not only supports Cooper's testimony, but also strengthens the case that Karl Rove had access to and knew that Valerie Wilson was a covert agent whose status was classified.

That is why the jury would likely hear, among other things, that Wilson's July 6, 2003 op-ed piece in the New York Times, which contradicted the administration's story about Saddam Hussein's search for yellowcake uranium ore in Niger, catapulted the administration into a frenzy of activity which appeared to have two overlapping goals. The first was the preparation of a CIA response to Wilson's revelations; the second, the undermining of Wilson's credibility. As New York Times columnist Frank Rich has so aptly described it, the eight days between the July 6 op-ed and Robert Novak's July 14 column outing Valerie Plame were characterized by "mounting desperation" on the part of the administration.

It is likely that only a fraction of what happened during that time has been made public, but the credible evidence that has been reported indicates that senior administration officials Rove and Libby were in close contact with each other, as well as with the State Department and the CIA, in order to carry out their two-pronged attack. The jury would likely hear evidence about their e-mail communications. The jury would also probably hear that, within 24 hours of publication of the Wilson piece, Secretary of State Colin Powell and White House Press Spokesman Ari Fleischer were seen holding a State Department memo requested by Deputy Secretary of State Richard Armitage on the day the Wilson op-ed appeared; that, when seen with the memo, Powell and Fleischer were on Air Force One with President Bush and National Security Adviser Condoleezza Rice on the way to Africa; that the State Department memo contained a paragraph about Valerie Wilson's work at the CIA marked "secret"; that on July 8th, Karl Rove talked about Valerie Wilson's work at the CIA with Robert Novak; that, at about the same time, another senior administration official told Robert Novak about Valerie Wilson's work at the CIA; that, on July 12, the day after Rove talked with Cooper, Lewis Libby, speaking "on background," told Cooper he "had heard" the information about Valerie Wilson's CIA status and possible involvement in sending Wilson to Niger; that, on the same day, a "senior administration official who was not Libby" told Washington Post reporter Walter Pincus that "Wilson's trip to Niger was set up as a boondoggle by his CIA-employed wife"; and that, just the day before on July 11, CIA Director George Tenet had taken the fall for the inclusion of the infamous 16 words that, inserted in the State of the Union Address, had started the whole ball rolling. So once Robert Novak published his story outing Valerie Plame and undermining Joseph Wilson on July 14, 2003, it would appear that the administration had achieved both of its goals. Hardly the work of "senior administration officials" who know not what they do.

If charges were brought, it would certainly be in light of this background evidence, and more (as they say on the infomercials) that a jury would be asked to decide whether a violation of the Intelligence Identities Protection Act had been proved. That jury would, of course, be free to draw whatever reasonable inferences it found appropriate based on this chain of circumstances.

Circumstantial evidence? Yes, contrary to popular belief, direct and circumstantial evidence have equal weight under federal criminal law. So one very strong permissible inference from the evidence of the administration's post-July 6, 2003 conduct could be that, given the damaging nature of the Joseph Wilson story and the urgency with which the State Department memo had been requested, it is impossible to believe that Powell simply tucked it into his briefcase and began watching an in-flight movie. Precisely who saw it or heard about its contents is not publicly known, but it is known that Lewis Libby and Karl Rove had been tasked to work with CIA Director George Tenet to craft the mea culpa Tenet would deliver on July 11 taking responsibility for those sixteen words in the State of the Union. As has been widely reported, their involvement can be proven by evidence of an intense exchange of e-mails between the two. It would be difficult to work on Tenet's statement without knowing about the information in the July 7 memo, as well as much other classified information about the Wilson trip, so it would not be unreasonable to infer that they too had been recipients of the information in that memo.

Whether charges will be brought under the Intelligence Identities Protection Act or, if they were, what a jury would decide, we cannot possibly know. But we do know that it is not a law under which guilt is nearly impossible to prove -- as the pundits, citing each other, have led us to believe. It also bears mentioning that experienced prosecutors never underestimate juries. Most juries are like the special grand jury described by Matt Cooper: thorough, highly-engaged people who are absolutely committed to applying the law only to the evidence they have heard in court as they are instructed to do. They are not easily fooled. They have common sense. And they are firmly rooted in the reality-based community.

Elizabeth de la Vega has recently retired after serving more than 20 years as a federal prosecutor in Minneapolis and San Jose. During her tenure, she was a member of the Organized Crime Strike Force and Chief of the San Jose Branch of the U.S. Attorney's Office for the Northern District of California.

Copyright 2005 Elizabeth de la Vega [ 08-12-2005]
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Oh and here's another very enlightening look at the affair also . . .

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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?

By LOUIS KLAREVAS
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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.

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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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Real interesting . . . Eh?

Do you have the gestalt sense of the whole picture?

Really?

Well . . . You all come by and visit if you get some time away from yammering about the latest hot-stove item that the Admistration is having to deal with . . .

Ciao . . .

Jonah D. Wail

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[kim]

Did the whale just spit up a jukebox, ol' chum?
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[Jonah D. Wail]

Hook up!