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May 01, 2009

Comments

lurking

Now, what about Rosen's suit against AIPAC?

Sue

And one of the defendants is writing a book on government leaks. Maybe he can fill in the blanks on the Plame case for us. Like who the man on the street that accosted Novak was. Not that I think he knows, just wishing we did.

lurking

So, did the Harmon gambit, if is was one, backfire? Any chance of understanding why? As they say, wheels within wheels. Could the Justice Department be newly gunshy of the intelligence branch of the government?

lurking

I liked the way he tried to blame it on the judge. Does that border on contempt or am I just naive?

lurking

Sue, I suspect Rosen 'knows nossing' about Plame. Besides, that wasn't a leak, it was a plain lie.

Sue

lurking,

I know. I just want to mention that every now and again so that person, when he googles it, sees someone hasn't forgotten him.

verner

Lurking, I would imagine Harman's seriousness on matters of Intel is shared by what's left of moderate democrats. And I also would imagine that Harman has the goods on Mme. Botox.

Maybe Holder realized he would be opening up a two front war.

narciso

Well it's a good thing, the case should never have been brought in the first place; it was criminalization of political speech, by a disfavored group, vis a vis. a more powerful lobby; the Wahhabi Arabist ones.

MayBee

Where's clarice? This is her baby.

Rick Ballard

MayBee,

She went down to FL to celebrate her mother's 90th. I'm sure we'll hear from her a little later.

Happy Birthday to Clarice's Mom!

anduril

No surprise, eh? What an excellent decision, and a perfect example of ends justifying the means thinking: the end (ensuring that the AIPAC defendants never see the inside of a courtroom) justifies the means--gutting the Espionage Act. Super! Now every low life bureaucrat who gifts national security information to a foreign power can skate if he says he didn't intend to harm the US! Jonathan Pollard, where are you?

Prediction: next time some guy tries that defense--that he gave national security information to China to help China against, say, Japan, but he never intended to harm the US--he'll be laughed into the dock and then into jail.

In the meantime, lets all high five for the (temporary) gutting of the Espionage Act. It applies to everyone but Israel. Great principled result.

narciso

Actually, Anduril, the Government was spared the loss of this authority by not taking it to court, and not being able to convict, God, you really are dense, and not just on 'torture' and/or the centuries old Russian/Georgian conflct.

Ranger

Anduril,

First, this case was brought using a very little used part of the law, as the linked story states:

Weissman and Rosen were charged under a rarely used section of the 1917 Espionage Act that makes it a crime for civilians to receive and distribute closely held defense information.

Given the amount of classified information that was leaked to the press over the last 8 years, chosing to charge these two would seem a little dispropotionate. If we were using this section of the law to agressively stop leaks by going after civilians that recieve classified information, I'd see your point. But the DoJ has chosen not to do that over the years.

Second, the Espionage act was a wartime law, clearly intended to keep information from falling into the hands of US adversaries. Using it to go after people passing information on to active US allies seems a misuse of the law, and that seems to be the judge's take as well.

Rick Ballard

Andy McCarthy provides a very nice example of what "strong letter follows" means as a backup to what I'm sure was a two word reply to the government attorneys running Obama's show trial apparat.

anduril

As always I'm open to correction by informed comment, which excludes... well, anyway, here's my take of what happened here. The Espionage Act clearly criminalizes defined activity that harms the US or advantages another country. In a pretrial ruling the trial judge 1) first misstated the rule by omitting "or advantages another country" then later in its opinion 2) stated the rule correctly, leaving the government in a quandary. The government's request for clarification was rejected on appeal as interlocutory: they were told, in effect, you'll have to take your chances at trial then appeal if you don't like the result if it's based on wrong rule. The quandary for the government, of course, was that even if the trial judge applied the wrong rule and the government nevertheless somehow won, they would be acquiescing to some extent in the wrong rule. Subjecting the Espionage Act to constitutional challenge based on this case is something they decided against for tactical reasons. The justice system works? NOT!

As I said, this interpretation of the Espionage Act will be very limited. Chinese Americans or any other hyphenated Americans would be ill advised to attempt it.

Rick Ballard

I guess the government attorney was just dissembling when she said:

"Given the diminished likelihood the government will prevail at trial under the additional intent requirements imposed by the court and the inevitable disclosure of classified information that would occur at any trial in this matter, we have asked the court to dismiss the indictment," Dana Boente said.
anduril

Given the amount of classified information that was leaked to the press over the last 8 years, chosing [sic] to charge these two would seem a little dispropotionate [sic]...

An excellent result--why NOT gut the Espionage Act? Who needs it? Spoken like a true patriot, Ranger.

Rick, you obviously haven't read the Act nor the opinions in the pretrial motions. That's not informed comment.

anduril

Going to the dentist.

God, what a great idea--wait to start safeguarding our closely held information until we're in a war! Why didn't I think of that?

narciso

Really has their been a prosecution of NY Times for revealing the SWIFT program, or the TSP program, ABC or the Washington Post, for the 'secret prisons', No, there was only the Libby case, where there was no espionage involved and frankly the person responsible was never investigated, and this attack on AIPAC; did you forget we're in a war now, one that was declared on us, in 1996; but we were'nt duly aware till 2001; although some still haven't gotten the message, at this late date

 Ann

Wow, Rick! Thanks for that link. Everyone should read McCarthy's letter to Holder.

GIVE 'EM HELL, ANDY!!!!

lurking

Yes, perhaps Boente meant 'subtractional intent' instead of 'additional intent' requirements. But don't you think the decision had more to do with the disclosure of classified material than with the facts of the case?

And bringing race into this is probably gratuitous, anduril, and should be beneath you. Do you think that impacted the government's decision? And if so, where's your proof?

lurking

Whoops, typepad timewarp! What happened to the Krugman crap and raid post?

narciso

The computer decided that was one Krugman column too far. Really 2% of GDP, not hardly worth the bother is it. That hasn't been the impact in Spain, consequently it's going to be that way in a country fifteen times as big

Rick Ballard

"What happened to the Krugman crap and raid post?"

Dunno. I thought the simple agreement that crap on trade was going to be "beneficial" was rather remarkable, given that it's a very expensive solution to a nonexistent problem. Unless, of course, the "real" problem is lack of additional crap to be peddled by Wall Street hustlers who have lost their livelihood due to the disappearance of the ABS shell game.

Topsecretk9

LUN

Author on original story on Harman and answers what TM kept saying about Goss - he didn't authorize the wiretap

Over at The Cable, Laura Rozen endowed the CIA director with even further power and motivation to "go after" Harman, writing, "Goss's decision to authorize a FISA warrant that would tap a former fellow lawmaker and rival seems potentially troubling."

It would indeed be troubling if that were in fact what Goss did. But the problem with Rozen's assertion is that Goss had no power to "authorize a FISA warrant." As Rozen must know, that power belongs to the Foreign Intelligence Surveillance Act court, upon petition by the Justice Department.

Rozen further muddies the issue by referring to "DOJ's burgeoning investigation into Harman."

Not only was a Justice Department "investigation" of Harman not "burgeoning," it had not even begun, as I and others have reported, based on first-hand sources.

The Justice Department was investigating secret Israeli operations in the United States, not Harman. (And now even that investigation has evidently come up empty).

basically author says a bunch of lefty bloggers are up to their usual tricks Leopold'ing the story

lurking

The only academic study of green jobs is from Spain, and it shows that 2.2 real jobs are lost for every green job created, that 90% of the green jobs were temporary, and that they were predominately minimum wage jobs. What say, Big Fat Liar Paul?

Ranger

The only academic study of green jobs is from Spain, and it shows that 2.2 real jobs are lost for every green job created, that 90% of the green jobs were temporary, and that they were predominately minimum wage jobs. What say, Big Fat Liar Paul?

Posted by: lurking | May 01, 2009 at 01:21 PM

Hmmm... the numbers are actually getting better. My understanding is that 20 years ago or so studies showed that every job created in recycling eliminated 13 jobs in raw material production, processing, and transporting.

bad

lurking, we need millions of college graduates to staff those green, minimum wage jobs which are temporary and cause the loss of other jobs.

Obama's gonna give free college educations to make it so.

JM Hanes

anduril:

"Now every low life bureaucrat who gifts national security information to a foreign power can skate if he says he didn't intend to harm the US!"

The guy who actually leaked the info was convicted ages ago. So much for informed comment, which excludes....

Ranger

An excellent result--why NOT gut the Espionage Act? Who needs it? Spoken like a true patriot, Ranger.

Posted by: anduril | May 01, 2009 at 12:31 PM

On a practical level, you can't "gut" a law that isn't being used.

How the DoJ every thought they would get a convition on this, when all the defense has to do it point out how many secrets have been leaked and printed in newspapers during the same time these two guys were under investigation.

Why was this particular violation so bad, when hundreds of other violations never even rated an investigation?

There is only one thing worse than a law that is not enforced, and that is a law that is selectivly enforced. We're not talking about basic prosecutorial discretion here, we are talking about giving a speeding ticket to just one driver at the Indi 500.

glenda

Well, Happy Birthday Clarice's Mom!
Clarice, you must tell us how she feels about Obama, now. And, my 87 year old Dad would love to meet her.
Rick--who do you think O will pick for SCOTUS?? Tribe, Holder?
Narciso-hey--family is fine--the laboratory scientist just called saying the area is freaking about the Pig flu--says her lab is overwhelmed with panic-ridden, by the media, people with sniffles coming in to be tested for the bug. County health dept. sends to the emergency room and overwhelms their lab. Obama really fracked up on that, also. I imagine it is being repeated in emergency rooms & hospitals all over the country.
And on the other thread about outing faces of suspected CIA contractors--that is so evidently a chargeable offense. Let's see how the hypocrits at justice handle that one! Did Ms.Pelosi come out yet demanding such. If this, along with Harman rumblings, and the release of the Top Secret memos, doesn't lead to a prosecution--Scooter Libby should have his conviction totally vacated for numerous reasons.
What a world, what a world! Free the teleprompters! Republicans....Cry Havoc and let loose the dogs of war!!

anduril

Ranger, the Espionage Act isn't being used? Whaaat? Maybe not in the cases you wanted, but it is being used. All laws are selectively enforced--prosecutors only bring their strongest cases. What a stupid comment.

The guy who actually leaked the info was convicted ages ago.

He wasn't convicted, he pleaded guilty rather than go to trial, so his case never got to the stage where a judge could sow confusion about the standard of proof before trial. If that standard of proof were applied widely it would make prosecutions much harder. You're such an idiot.

JM Hanes

anduril: "You're such an idiot."

ROTFLMAO!

JorgXMcKie

"All laws are selectively enforced--prosecutors only bring their strongest cases. "

Okay. I gotta throw the bullshit flag on that one. You might say "prosectors only bring cases they think they can win" and be closer, or you could get really close to the truth and say "prosecutors only bring strong cases or cases they think they can win or to hassle those who displease them while ignoring the powerful and those who please them".

"What a stupid comment." Well, at least you seem to have some inkling of your problem.

MayBee

I am thrilled and honored to have JMH join me over here in the idiot corner.

anduril

Inquiring minds want to know...

Since the Judge in this case, T. S. Ellis III is the same judge who whacked Larry Franklin:

On January 20, 2006, Ellis sentenced former Defense Department employee Lawrence Franklin to 12 years and 7 months in prison and a $10,000 fine for passing classified information to an Israeli diplomat and AIPAC, a pro-Israel lobby group.

it would be interesting to discover whether, in accepting Franklin's guilty plea Ellis made sure that Franklin was pleading guilty to engaging in actions that Franklin intended to be harmful to the United States. After all, that's the standard of proof he wanted in the AIPAC trial, which would have relied on essentially the same set of facts.

JM Hanes

MayBee:

I thought we were joined at the hip!

narciso

Yes, but Franklin never intended to harm the United States, in fact he wanted to warn them, of Iranian influence inKurdistan.
so what is the point there. Of course, the point as with Libby and Conrad Black was to incapacitate allies and associates of the President, to this end, they spread this rumor that Franklin or some one like him,
leaked some information to Chalabi, who then leaked it to the Iranians. David Hagberg, aka Sean Flannery, even wrote a novel about such a scenario, disguised as
a murder mystery; man in the middle.

anduril

narciso, my man! You've stumbled into the truth!

Yes, but Franklin never intended to harm the United States...

And that's the same point that Justin Raimondo over at Antiwar.com makes:

Franklin, in his guilty plea, admitted to the crime, but maintained his ideological innocence to the end, claiming that he had only wanted to help Israel...

All the more reason to ask, why did Ellis accept a guilty plea from a man who was denying that he had had the intent (as Ellis defined it for the AIPAC trial that will not be) to commit the crime?

Ranger

Ranger, the Espionage Act isn't being used? Whaaat? Maybe not in the cases you wanted, but it is being used. All laws are selectively enforced--prosecutors only bring their strongest cases. What a stupid comment.

Posted by: anduril | May 01, 2009 at 02:22 PM

Since you obviously missed it the last time I posted it, I will repost and even bold the key point.

Weissman and Rosen were charged under a rarely used section of the 1917 Espionage Act that makes it a crime for civilians to receive and distribute closely held defense information.

The judge's rulling on intent only applies to this specific portion of the law.

The dropping of the charges against the "civilians" who recieved the information has no impact on the status of the law regarding people inside the government who break the law by passing information to people outside government.

BTW, when was the last time anyone was charged with reciving classified information who wasn't a paid agent of a foreign government?

DC is awash in classified information that is being illegally transmitted to journalists and interest groups. DoJ hasn't deemed any of that a risk until this case.

narciso

Because the judges haven't read the law, we know they didn't in a number of cases. So what is the point of prosecuting someone
for something that is not intended to harm the United States. These last three cases they could have gone after people who leaked in order to intentionally harm the United States, probably not but I can dream can't I.

Ranger

All the more reason to ask, why did Ellis accept a guilty plea from a man who was denying that he had had the intent (as Ellis defined it for the AIPAC trial that will not be) to commit the crime?

Posted by: anduril | May 01, 2009 at 03:30 PM

Simple, the Espionage Act treats diferent actors in different ways. Intent is not relivent if the person is a US government employee. The act of passing the information to someone not entitled to have it is the crime.

The law is less strict on "civilians" for a wide range of reasons.

And if the person recieving the information is a knowing part of a foreign intel operation, they don't count as a "civilian" they are treated as an agent of a foreign power.

anduril

Clarification: I may be mistaken in suggesting that there was any confusion in the trial courts ruling on the burden of proof--the trial court may have been more explicit than I thought in setting a higher burden of proof than required by the statute. Here's what the appeal court said, although declining to rule on the matter since it would be interlocutory:

We are nevertheless concerned by the potential that the § 793 Order imposes an additional burden on the prosecution not mandated by the governing statute. Section 793 must be applied according to its provisions, as any other course could result in erroneous evidentiary rulings or jury instructions.

So the appeal court was disturbed by this ruling, but its hands were tied until after a trial had taken place, leaving the government in a quandary as to how to proceed.

Joe Y

I've never been a "it's no coincidence that..." kind of guy, and am not going to turn into one now, BUT it is impossible not to notice that this decision came the day after ABC published the pictures of the 2 alleged CIA interrogation specialists. It would be impossible even for the most fevered in-the-tank mass media outlets to overlook a guilty verdict in the AIPAC case vis-a-vis the lack of even an investigation into ABC. I'm edging close to "it's no coincidence" land.

anduril

OK, OK, by popular demand, here's the full footnote:

Although we do not possess jurisdiction to review the § 793 Order at this juncture, it is apparent that the district court worked tirelessly to balance the competing forces inherent in a prosecution involving classified information, and that its efforts to protect the fair trial rights of the defendants were not inappropriate. We are nevertheless concerned by the potential that the § 793 Order imposes an additional burden on the prosecution not mandated by the governing statute. Section 793 must be applied according to its provisions, as any other course could result in erroneous evidentiary rulings or jury instructions.

So, even though the Court of Appeals had no jurisdiction, they were still concerned enough about the trial courts ruling that they went ahead and gave their opinion: it's not for a trial court to devise and additional standard not mandated by the statute.

anduril

Joe, go check your temp.

anduril

Simple, the Espionage Act treats diferent actors in different ways. Intent is not relivent if the person is a US government employee. The act of passing the information to someone not entitled to have it is the crime.

Franklin pleaded guilty to two counts of this:

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or 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, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it;
JM Hanes

"All the more reason to ask, why did Ellis accept a guilty plea from a man who was denying that he had had the intent.... to commit the crime?"

Probably because the Prosecution recommended it and because when such bargains are struck, the defendant generally pleads to a lesser charge.

I'm so sorry that Clarice isn't here to enjoy the fun!

Joe Y

Incidentally, Anduril, in the articles I've read, the AIPAC defendants were passed information about an Iranian attack on American troops and Israeli agents that the American government was ignoring. They passed on the info to a Washington Post reporter and an attache at the Israeli embassy, which is what any decent American would do, and to hell with the consequences.

anduril

Probably because the Prosecution recommended it and because when such bargains are struck, the defendant generally pleads to a lesser charge.

You moron, I just posted what he pleaded guilty to--they're the same freaking charges that were in the indictment! Do you have any clue what a judge's responsibilities are in a guilty plea? Answer: obviously not.

I'm outta here.

bad

I'm outta here.

I realized today why I didn't miss you when you disappeared for a while.

Don't let the door hit you in the ass on the way out.

Ranger

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or 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, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it;

Posted by: anduril | May 01, 2009 at 04:15 PM

You obviously missed the part I bolded. That is not the same charge that the two "civilians" in this case faced. They were never legally entitled to the information. Their crime was recieving it, which, by the way, the reporters at the WaPo also violated when they recieved the informaiton from them, but were not charged for.

Hense, why Franklin plead guilty. Intent had no role is his case.

Ignatz

-In the meantime, lets all high five for the (temporary) gutting of the Espionage Act. It applies to everyone but Israel.-

I don't really need any other comment to understand anduril's intense interest in this case.

bad

Ranger, you are awesome!! I always learn so much from you.

pagar

Bad, My first thought was that old country song, "Thank God and Greyhound, she's gone"!

bad

LOL pagar

JM Hanes

"Do you have any clue what a judge's responsibilities are in a guilty plea?"

I'm trying to remember the last time I heard about a judge forcing Prosecutors to go to trial when they didn't want to. The prosecution obviously thought this was the best they were going to get without proceeding further -- where they risked an exoneration which would be excrutiatingly embarrassing in such highly charged political circumstances.

When your position is weak and you can't get a plea, you simply drop the charges and save face as best you can, which they have now done in the follow-on prosecution. Saving face seems to be current Justice Department strategy, as this is not the only case in which they've abandoned ship complaining that a ruling suddenly changed the whole ball game. It's just soooo unfair!

Apparently, they weren't nearly as sure as you seem to be about just how far the Appeals Court's concern might extend. Your footnote suggests that while signaling that there might be a basis for an appeal, depending on how the case plays out in the lower court, they were simultaneously indicating that the grounds for reversing the lower court judge may not be all that solid.

In this case there are a lot of pesky "ors" which look destined for the Supreme Court, and this case is clearly not one the Prosecution would want to get there on.

Running out the door, flinging insults as you go is so unserious.

verner

Running out the door, flinging insults as you go is so unserious.

EMO KID

JM Hanes

Ignatz:

Strange, isn't it? I'd have said it doesn't look like it applies to much of anybody but Israel these days. Sure doesn't apply to folks like Dana Priest at the Washington Post or James Risen at the New York Times and all the other folks who have actually published the info they received and actually done demonstrable damage to our national security interests.

lurking

I still like anduril for the fact that he is thought-provoking. He's also amusing, as in calling JMH a moron. I don't think he's used to ever being wrong, and I'm sure he's not used to ever being challenged. Actually, I think that's why he came back, for the thrills, and expect he'll be back again.

I also didn't like the way he insinuated that the pair got off because they are Jooooos. Can't he see that they only got prosecuted for that reason?

Elliott

lurking, I have to break JOMerta: ========?

anduril

I lied. Ranger, you are so freakin' stupid!

1. Franklin pleaded guilty to a statute that requires that the defendant have reason to believe [that the information he possesses] could be used to the injury of the United States or to the advantage of any foreign nation

2. No person, civilian or otherwise, can be found guilty, and no judge will accept a guilty plea from any defendant who denies that he had reason to believe that he had violated an element of the offense. If Franklin lacked reason to believe one or the other of those conditions, he was entitled to walk out of court a free man.

3. Franklin was represented by one of, maybe the most, experienced espionage defense attornies ever: Plato Cacheris, who defended Ames and Hanssen, among others. You can be sure that all this was explained to Franklin and that Cacheris would never have allowed Franklin to plead guilty if Franklin maintained that he did not have the requisite "reason to believe."

4. All of which means that Cacheris and the judge were satisfied that, since Franklin denied intent to harm the U.S., at a minimum Franklin acknowledged--and the judge accepted this as satisfying the statute--that he had reason to believe that his actions had advantaged a foreign power.

5. You don't know what the hell you're talking about. Everything is governed by the statute: if it specifies a level of knowledge and intent, then it applies across the board.

6. Generally speaking, just about the only type of criminal offense you can be guilty of with intent would be parking tickets. Please consult Wikipedia regarding Criminal intent:

In the criminal law, intention is one of the three general classes of mens rea necessary to constitute a conventional as opposed to strict liability crime.

and Strict Criminal Liability:

As a jurisdiction with due process, the United States makes only the most minor crimes or infractions subject to strict liability. One example would be parking violations, where the state only needs to show that the defendant's vehicle was parked inappropriately at a certain curb. But serious crimes like rape and murder require some showing of culpability or mens rea.

I have news for you: Espionage is a serious offense. Franklin got 17 year for it. He got hammered.

7. bad: learn from this, you idiot.

JM Hanes

JOMerta? I had to look that one up.

bad

anduril, take your meds.

DrJ

Yeah, bad, he is turning into TCO light.

pagar

Whoever, lawfully having possession of, access to, control

I do not understand how Sen Rockefeller was not charged for carrying the information he had as head of the Senate intelligence Committee to Syria in Jan 2002.

Rockefeller’s Confession

SEN. ROCKEFELLER: No. The — I mean, this question is asked a thousand times and I'll be happy to answer it a thousand times. I took a trip by myself in January of 2002 to Saudi Arabia, Jordan and Syria, and I told each of the heads of state that it was my view that George Bush had already made up his mind to go to war against Iraq
 Ann

I hear this is the moron idiot thread. Should I only posts my comments and pictures here?

 Ann

Because I can think of no finer company. :)

lurking

Settle down, anduril. We love you because when you are an adversary you are usually a worthy one.

Elliott, hmmm. kim is lurking and sulking about the birth certificates. kim is also amusing kimself getting thrown off alarmist boards and trying to get Leif Svalgaard to speculate beyond the facts.

bad

I ♥ kim and miss kim.

Please come home.

Sue

I lied.

No shit Sherlock. You've ran out of here so many times only to immediately return that it is quite humorous now. The countdown starts as soon as you say it...

...did the dentist forget to deaden before drilling? You seem kind of cranky tonight.

davod

"All the more reason to ask, why did Ellis accept a guilty plea from a man who was denying that he had had the intent (as Ellis defined it for the AIPAC trial that will not be) to commit the crime?"

He pled guilty. His statement to the court, if indeed he was required to make one, must have been acceptabl.

Ranger

Anduirl,

You make a decent case up until point 5, then you run off the rails.

5. You don't know what the hell you're talking about. Everything is governed by the statute: if it specifies a level of knowledge and intent, then it applies across the board.

Absolutely false. Compare this section of the statute, with the one you quoted:

(c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or

You will notice that this particular section of the statute does not include the key phrase: has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation

This is cleary the section of the statute that DoJ wanted to charge the two AIPAC individuals under and why the judge had to rule on the issue of intent to harm the US or advantage another nation because it is absent from this section of the law.

This is an inference, but, if the DoJ had wanted to charge them under section (e), they could have avoided the issue of needing to prove an intent to harm the US, as section (e) is essentially identicle to section (d) you posted, but with the following difference:

Whoever having unauthorized possession

So, why would DoJ pass up this easy way (using section (e) to avoid the defense the AIPAC individuals mounted?

Simple, that is a transmission crime, and as such, they would have also had to charge those at the WaPo who recieved the information. If you are going to charge these two guys with passing this information on to someone, you better be ready to charge the person who recieved it from them under section (g), which is conspiracy to violate the espionage act. You can't charge someone with tranmitting without also being willing to charge the recipients with recieving. (Well, you can, but it would be hard for the prosecutor to explain to the jury why only half the conspiracy is being prosecuted.)

As far as I can tell, the judge's finding about needing to prove intent to harm in this case only applies to someone being charged under section (c), where the specific langague of has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation is absent. It has no effect on sections (d) or (e), and (d) is what Franklin was charged with.

I have news for you: Espionage is a serious offense. Franklin got 17 year for it. He got hammered.

Yes, I am completely aware of that, and this decision has no effect (as far as I can tell) on the section of the statute under which he was charged.

It only affects section (c), which is the "rarely used section" of the law the DoJ tried to use this time.

The judge had lattitude to make this call because the statue is not expicite as to intent, so he interpreted the standard.

Bottom line, this dose not gut the espionage act, it simply establishes a standard of intent for section (c), which is rarely used anyway, that is stricter than the rest of the statute.

JM Hanes

"He got hammered."

With the apparent collusion of both Judge and Prosecution on his guilty plea, eh? The fact that Espionage is a serious crime is hardly likely to be news to anyone.

In your #6: I assume you meant "without intent." If you wanted to be strictly accurate however, you would say that intent is irrelevant one way or the other.

Intent and mens rea are not always precisely the same thing, of course. One's mental state is certainly relevant where involuntary manslaughter is concerned, even though death might have been unintentional. Nor does intent have to be a knowing violation. Negligence, for example, can be sufficient in "serious offenses" as well. There are other forms and degrees of legal intent as well.

In #2, you must presume that the plea which results from a deal struck with the Prosecution is indistinguishable from any other plea, in order to assert that if the judge did not read intent into the statute in Franklin's case, he cannot do so in the AIPAC case. I believe your initial premise is mistaken, and that when you assert that Franklin has not admitted to intent, you are using the popular meaning of the word, without reference to the sliding legal scale which attaches to it.

You must further assume that the standard of proof remains the same whether a defendant pleads innocent or guilty. This is clearly not the case, and it is also entirely reasonable that the burden of proof is more substantial when a defendant pleads innocent, as with AIPAC, than when he pleads guilty. In the latter, a defendant's admission is deemed sufficient, in the the first, the prosecution must prove the elements of the crime beyond a reasonable doubt. Where the prosecution is not required to prove any element of the crime, the threshold of sufficiency can be lower.

This would be especially relevant when the plea derives from a bargain in which the difference between knowing intent and negligent intent might well make the difference between a 17 year sentence for a lesser offense versus imprisonment for life. That is also why the Prosecution's recommendation would come into play, as it does not in the judge's decision about the defendant's initial plea.

I welcome correction from any of our practicing lawyers, and I would certainly be interested to know if they find any of your arguments more persuasive than I do.

Sue

Is anyone else watching O'Reilly? I am sitting here with my jaw dropping. Thank God I'm not a feminist.

MayBee

Sue- what's he doing?

Captain Hate

As a non-cable guy, what's going on Sue?

Sue

O'Reilly isn't there. Laura Ingraham is. She has Gloria Steinem as a guest, asking her why feminists aren't outraged about how Miss USA is being treated by the media. Ms. Steinem just said she is fair game and made a catty remark about she needed a heart transplant instead of breast implants.

Actually, I'm not at all sure it was Gloria Steinem. Her name was Gloria but I never saw or heard her last name. At looking at pictures of her around the internet, she has dunked her head in a bottle of black dye if it is her. See, I can be catty too.

Captain Hate

I'd imagine that Laura was giving it back to Glorioski since she's been outspokenly behind Miss California and her spat with Paranormal Hilton (btw, way to go, whoever organized this stupidity, having a vagina unenthusiast involved in any aspect of your stupid pagaent).

Sue

Well, 2 points. 1) I'm proud that I don't know for sure if it was Gloria Steinem or some other tool and 2) how the hell do you find out who was on the show tonight? Grrr....

Rocco

Gloria Allred is on FOX quite a bit.

Sue

Hi Rocco. No, I know her, sadly. It wasn't her.

Rocco

Hi Sue...just a thought.

Sue

I can't make the...the...woman...said with a sneer...look like the pictures of Gloria Steinem. If it was her, she has certainly had some work done.

Sue

How cool is this? I've looked everywhere, and I mean everywhere, for a clip or mention of the show and gave up. Went over to Hot Air to see what the headlines were and found the damn clip. ::grin:: Just my luck.

http://hotair.com/archives/2009/05/01/video-miss-california-is-a-piece-of-garbage-with-breast-implants-or-something/>Hot Air. Her name is Gloria Felt.

Sue

Feldt.

I have been the butt of that same kind of attack from the right so many times that I used to be 5 inches taller and I've developed very thick skin, even from the likes of you.

At which point, Laura Ingraham went balistic.

narciso

It's Gloria Feldt, the former nurse, whose the chairman of the National Abortion Rights
Federation or something along those lines, Like I said before, anduril is really beginning to try my patience he's not at TCO level yet, but he's getting there.

Sue

narciso,

One of these days, someone is going to have to clue me in on how you know everything about everything. You are simply amazing.

narciso

I know it's frightening isn't it, years of reading the hated MSM periodicals, books, et al, and I guess the last nine or ten years on the internet. I think I get it from my grandfather who was mostly self educated. And I dump every thing I have here.

JM Hanes

Sue:

I think you actually have to be narciso to understand how it all works! It's not just how much he knows, it's that he can see how it all fits together too that knocks me out.

Sue

Well, I can't say I'm sorry I missed her in my early perusings. She is one hateful bitch.

JM Hanes

Sorry, narciso, for talking about you in the third person!

narciso

It's alright, JM, it's only when I start talking in the third person that the problem begins. it was Planned Parenthood
by the way, but six of one, half a dozen of the other.

JM Hanes

narciso:

My grandmother said she always kept a cat, because if you talked to yourself, people thought you were losing your marbles. If you talked to a cat, they thought you were perfectly sensible.

Rick Ballard

Here's the WSJ wrap on the AIPAC case. Those dummies are as stupid as you people here with your "intent" nonsense. You really need to pay closer attention to Father Coughlin. He knows the truth.

narciso

"Father Couglin" LOL, Rick, than again it might be Pat Buchanan, seems to have the same preocupations, except for the torture
happiness thing.

anduril

Compare this section of the statute, with the one you quoted:

(c)

Ranger, you are un fricking believable. Franklin was not charged with violations of (c)--as I clearly stated, Franklin was charged with and pleaded guilty to violations of section (d). Section (c) is irrelevant, as is everything else that you say.

why would DoJ pass up this easy way (using section (e) to avoid the defense the AIPAC individuals mounted?

News flash: DoJ did NOT pass on section (e): the indictment is based on both (d) and (e), because a conspiracy is also alleged. You didn't read the indictment, did you? Section (c) has nothing to do with this case. You're simply dishonestly spreading misinformation.

Again, you don't know what the hell you're talking about. What's your problem with finding out the facts before mouthing off? It really helps in identifying the issues. So try it--rather that remain in a world constructed upon invincible ignorance, break out--get the facts that are freely available to you on the internet. The truth will make you free.

You might also consider, as the Court of Appeals did, the implications of a trial court essentially rewriting a statute to suit itself.

sbw

Anduril does challenge prevailing opinion, but he does get riled when others challenge his. That leads to unnecessary and intemperate remarks that, compared to SNL's takeoff on "Point Counterpoint, are more abrasive than "Jane, you ignorant slut."

He forgets that people don't have to concede to his "superior" logic. Victory isn't the answer; it's laying out compelling evidence and the logical path to a sound conclusion. Clearly, some here aren't convinced and provide further evidence and logic.

That is why I love it here. The real joy in a discussion is honing my presentation to make it more compelling and better address others' concerns.

Lighten up, anduril. These very interesting and erudite people are not trolls.

Captain Hate

Laura Ingraham went balistic.

What I like about Laura is she doesn't take any garbage off of witless harpies like that clueless harridan. If only she hadn't switched to some low-wattage shitbox of a station that I can barely pick up...

narciso

Yes they had her on this SRN network, that was taken over by a non denominational Christian station, then the sports station, which then switched back, whereas the Air America station, until recently

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Wilson/Plame