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The Espionage Act of 1917? Not so fast, Lefty-Boy
Posted by: Dale Franks on Wednesday, July 13, 2005

So, now the Left, having realized that the Intelligence Identities Protection Act of 1982 might not work to put Karl Rove in prison, are scrambling to find something that will. They've lit upon the Espionage Act of 1917 as their new touchstone.

Heh. Not so fast.

The portion of the act, 18 USC 793 that would apply to Mr. Rove is as follows:
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...Shall be fined under this title or imprisoned not more than ten years, or both.
Once again, we have to look at the elements of the crime that has to be proven. As regards Mr. Rove:

1. Mr. Rove must have had access to classified information indicating Ms. Plame was a covert operative.

2. Ms. Plame's covert status with the CIA must have been classified information, and Mr. Rove must have known it to be classified.

3. Mr. Rove must have believed that it could harm the defense of the United States or advantaged another nation to release the information.

4. Mr. Rove must have intentionally released the information to a person not authorized to receive it.

Again, questions follow. Was Ms. Plame's status with the agency classified at the time the information was released? If so, did Mr. Rove know it to be classified?

Again, this gets us into a very murky area. If Ms. Plame was, in fact, going to work every day at CIA Headquarters in Langley, then her employment with the CIA can hardly have been classified, since she could be observed working there daily. Did Mr. Rove's knowledge of Ms. Plame's status at the CIA come from his access to classified knowledge, or did it come from some other parties who already knew of Ms. Plame's place of employment. The public record indicates that her employment at the CIA was known by some members of the press prior to Mr. Rove's conversation with Time's Matthew Cooper.

So again, the issue is clearly not as obvious as the Randi Rhodes devotees would like us to believe.

The truly amusing thing about jumping for the Espionage Act of 1917 is that, ironically, allowing the use of the Espionage Act to punish leaks is literally the last thing the press wants. Indeed, it should be the last thing that the Left wants, too, since its use would be a tool for repression of government whistleblowers every bit as powerful as the Official Secrets Act is in Britain. It would literally mean the end of any notion of open government. Because the act also says this:
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... Shall be fined under this title or imprisoned not more than ten years, or both.
In other words, merely by receiving classified information, a reporter gets to spend the next ten years in Club Fed right along with the leaker or whistleblower. That means that Judith Miller and Matt Cooper get to go to jail, right along with Karl Rove. And, while we're at it, we can lock up Bob Novak, too.

As it happens, in 1984, the Reagan administration, in the only pure EA case I know about that concerns a leak, used the Espionage Act to jail Samuel Morison, a Navy Department official who was also an editor of Jane's, and who provided Jane's with a couple of classified photos of a Russian nuclear submarine that was under construction. (US v. Morison, 844 F.2d 1057) The Bush administration also used the computer information portion of the EA as part of leak case, but the main elements of that case were mail/wire fraud and theft counts. In any event, Mr. Morison was convicted, although he was pardoned in President Clinton's spurt of midnight pardons right before the Bush inauguration in 2001.

This is, I think, a perversion of the law's intent. The EA was clearly meant to serve the purpose as a law against espionage for a foreign power. Moreover, in 1917, Congress considered an anti-leaking statute to accompany the EA, and specifically rejected it because of First Amendment concerns. Unfortunately, as the 4th Circuit noted—and this is one of those things that make being an originalist such a pain sometimes—whatever Congress may have wanted or intended, that wasn't what they wrote. The 4th Circuit held that the text of the law adequately covered the Morison case, and he got a couple of years in the cooler.

So, the short answer, based on Morison is that, yeah, if the Special Prosecutor really wants a conviction for somebody, he can probably get it under the EA, if the Morison precedent holds. I'm not 100% sure of that based on the facts of the case, but if the EA can stretch far enough to encompass Morison, then there's a better than even chance that it can cover Mr. Rove, although the real stretch would be to prove element 3.

That would, in my view, be an extraordinarily bad idea. The thing is, that using the Espionage Act in this way means that the Administration can simply classify anything they don't want the public to know about, and if it gets out, then all the parties involved get to spend a decade behind bars.

So much for the First Amendment and a free press.

At the moment, the relevant law that the special prosecutor, Mr. Fitzgerald, is investigating is the IIPA. And if you think the press is keen to pooh-pooh the idea of an IIPA investigation, then you ain't seen nothin' yet. If the media gets even a hint that Fitzgerald is looking at a EA prosecution, they'll have a freakin' cow. In fact, if that happens, I'll predict a miracle: The press will become George W. Bush's best friend. They will fawn on him and rail against Mr. Fitzgerald as if he were the Spawn of Satan.

No doubt amendments to the EA will also quickly follow, too, once a few congressmen get a dime in stir for opening their pieholes to the Washington Post.

Now, I'm generally the last person to credit the DU crowd with having a lick of sense, but it takes a special kind of slack-jawed stupidity to actually want a leak investigation to push for an Espionage Act conviction. What do you think you'll accomplish? That jailing Mr. Rove will really hurt the president's re-election chances in 2008? But, beyond that, is putting a free press in jeopardy for the sole purpose of jailing Mr. Rove really a bright idea? Aren't you Lefties always the ones going on and on about your rights, and free speech, and freedom of the press, and whatnot? Are you sure you don't wanna stop for just a second and think about the implications of what you're asking?

*sigh*

No, of course, you don't. Asking morons to think through the implications of their argument is like asking...uh...something else that's practically impossible.

Sorry, the simile well has run dry.
 
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Interesting insights on the the EA. It certainly looks like it has some applicability to a recent news article. How else might one reasonably categorize this leak of classified info for the purpose of harming the United States? (Link is to PDF)

http://www.air-america.org/newspaper_articles/CIA%20Proprietary%20in%20War%20on%20Terror.pdf

Shouldn’t Fitzgerald’s authority be expanded now?
 
Written By: CalDevil
URL: http://
"The thing is, that using the Espionage Act in this way means that the Administration can simply classify anything they don’t want the public to know about," - Dale Franks

Not so fast, righty-boy

"The Bush administration is classifying documents to be kept from public scrutiny at the rate of 125 a minute. The move toward greater secrecy has nearly doubled the number of documents annually hidden from public view - to well more than 15 million last year, nearly twice the number classified in 2001 - as bureaucrats have invented more amorphous categories like "sensitive security information." At the same time, the declassification of documents required under the Freedom of Information Act has been choked down to a fraction of what it was a decade ago, leaving the government working behind an ever darker, ever denser screen." - New York Times

They do it anyway, "moron".
 
Written By: Turd Blossom
URL: http://
*cough*Sandy Berger*cough*
 
Written By: Achillea
URL: http://
They do it anyway, "moron".
Thanks for the NYT editorial item in the guise of a "news" item, Turd. And since you like the "they do it anyway" excuse, I guess you didn’t complain about the Bush administration trying to defend "torture" techniques since "they do it anyway"?

The reason the "moron" comment was used is because advocating the use of the Espionage Act in this case opens a Pandora’s box of addition legal problems in other areas. But, hey, if we can get Rove, then it’s worth it, right?

 
Written By: JWG
URL: http://www.qando.net
They do it anyway, "moron".
Yeah, but based on my comments in the post, do you believe I think that’s a good thing? And, if you think they are already doing that, do you think that increasing their power to do so by ramping up the penalty for leaking to serious jail time will will lead to more or less security abuse?

See what I mean about thinking through the implications of your argument?

But, hey, thanks for proving my point for me. Appreciate your input.
 
Written By: Dale Franks
URL: http://www.qando.net
If this act actually has legs, why wasn’t it useful in the Agee case?
They evidently felt it necessary to enact another law to catch Agee, who was obviously doing what certains groups (kinda) hope Rove did.
 
Written By: anomdebus
URL: http://
If this act actually has legs, why wasn’t it useful in the Agee case?
Because Mr. Agee was sitting in Havana, which made it rather difficult for Federal Prosecutors to get to him.

Also, the law, as it exists now, is different than it was in the 1970s, due to a number of amendments.
 
Written By: Dale Franks
URL: http://www.qando.net
Amazing, there is a higher rate of classification document production now that before. Is it because there might be a war on at the moment and an actual need to protect operations?

Oh wait, you lefties call it the "so called war on terror".
 
Written By: capt joe
URL: http://
Check 18 USC, 792-798.....

They should ALL be going to jail for espionage.
 
Written By: interested party
URL: http://
Not so fast Neo-Boys. Sounds to me like you traitorous cowards can dish it out but you can’t take it. It’s an old story. Some big bully boy goes around picking on all the little kids, but when one of them punches him in his big fat nose he goes running home to mommy. Looks to me like Karl Rove has committed treason—which, if I recall correctly, is a capital crime—but because he’s one of US we’ll just ignore it. God, you bastards disgust me. If this were Bill Clinton you’d be looking around for a rope and an oak tree near the capitol. Do you really think you can lie your way out of this one? Do you really think you can impeach Bill Clinton for some innocuous horseplay in the White House and then get away with TREASON? That’s TREASON knuckleheads. You do know what TREASON is, don’t you? Or were you "angry and adrift" that day in class?
 
Written By: Steve Franklin
URL: http://
Looks to me like Karl Rove has committed treason

You should get new glasses then.

Do you really think you can impeach Bill Clinton for some innocuous horseplay in the White House

No, I wanted to impeach the chief enforcer of US law (the head of the executive banch, i.e. the President) for committing perjury.

You do know what TREASON is, don’t you?

As a matter of fact, I do. You, on the other hand, apparently don’t.

Scratches head. Hmm. Wasn’t there an article in one of the newspapers listing every single one of the CIA’s covert airlines? I’m sure that you’ll post right back here stating that you want everyone associated with the leaking of that information hung too.

 
Written By: Mark Flacy
URL: http://
Looks to me like Karl Rove has committed treason—which, if I recall correctly, is a capital crime—but because he’s one of US we’ll just ignore it. God, you bastards disgust me. If this were Bill Clinton you’d be looking around for a rope and an oak tree near the capitol. Do you really think you can lie your way out of this one? Do you really think you can impeach Bill Clinton for some innocuous horseplay in the White House and then get away with TREASON? That’s TREASON knuckleheads. You do know what TREASON is, don’t you?


Yes, I know what treason is. You, apparently, do not. You might want to actually read the Constitution of the United states, which says in Art III, §3:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

So, that’s your first display of gross ignorance.

Second, it might surprise you to know that I actually voted for Bill Clinton, so I was never too much in the "Bill Clinton is evil camp." Indeed, I’ve said on this blog any number of time that the right’s hysteria over Bill Clinton was stupid and counter productive. That, then is your second display of gross ignorance.

Next, I haven’t actually defended Karl Rove. I’ve provided analysis, part of which has been critical of Mr. Rove, and all of which has been, I think presented objectively. I have explicitly left judgements about the ethics of Mr. Rove’s actions up to the readers. You seem to think that a failure to call for Mr. Rove’s dismissal is, somehow a declaration of full support for Mr Rove. Those are not, however, the only two options, and your failure to understand that counts as your third display of slack-jawed intellectual incompetence.

Not only have you proven that, as far as this subject goes, you know literally nothing, but even worse, your abysmal ignorance is so profound that I fear it has literally sucked knowledge out of my head. I am stupider for merely having read your comment.

Once again, though, thanks for proving the point I was making at the end of the post. Bravo.
 
Written By: Dale Franks
URL: http://www.qando.net
Well, see if you aren’t attacking him and calling for his head on a pike, or being tarred and feathered and driven out of DC on a railroad tie, then you must be defending him.

There’s no middle ground after all, like arguing the merits of the case, and the law. Or waiting to judge and convict a person until an investigation into allegeded crimes has been completed. Nor being innocent until proven guilty.
 
Written By: Keith, Indy
URL: http://
Dale "moron"* Franks,

How is convicting someone under the current Espionage Act, in your words, "increasing their power to do so by ramping up the penalty for leaking"?

In order to ramp up the penalty, the Espionage Act would need to be strengthened - not merely enforced. So if you are saying that it needs to be weakened from its present state (due in part to the unprecedented secrecy of the current administration) in order to lessen the penalties for disclosing "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", what exactly would you like to see changed?

If it cannot be proven that Karl Rove was aware that Plame working undercover for the CIA was classified information that could be harmful to our country if revealed, then he will not be punished. However, if the person who supplied Karl Rove with that information knew of its classified nature, then that person WILL be punished.

It seems to me that you are ignoring the "for the purpose aforesaid" (shown in my previous quote) from the part of the Espionage Act that concerns you.

*"moron" - as in someone who doesn’t think through their arguments. No offense intended.
 
Written By: Turd Blossom
URL: http://
How is convicting someone under the current Espionage Act, in your words, "increasing their power to do so by ramping up the penalty for leaking"?
Because a EA prosecution for such leaking has only occured once in the entire history of the republic, which means that leaking is relatively risk-free in terms of criminal prosecutions. If, on the other hand, such prosecutions become normative, then the penalty for leaking with no longer be risk free, but will be a decade in prison. Morover, merely receiving leaked information will have a 10-year penalty as well.

That would be "ramping up" the penalty for leaking quite signifigantly.
So if you are saying that it needs to be weakened from its present state (due in part to the unprecedented secrecy of the current administration) in order to lessen the penalties for disclosing "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", what exactly would you like to see changed?
I would like to see nothing changed, which would be the status quo, i.e., the EA used in cases of, you know, espionage, the Morison exception notwithstanding. Using the EA as a leak-fixing device would put too much power to use criminal law to muzzle the press and whistlebowers in the hands of the administration.

I’m sorry, did you not actually read the post, where I made these points originally, or did you just not understand it?
 
Written By: Dale Franks
URL: http://www.qando.net
Main Entry: es·pi·o·nage
Pronunciation: ’es-pE-&-"näzh, -"näj, -nij
Function: noun
: the practice of gathering, transmitting, or losing through gross negligence information relating to the defense of the U.S. with the intent that or with reason to believe that the information will be used to the injury of the U.S. or the advantage of a foreign nation
-dictionary.com

How is this not relevant to the intentional outing of an undercover CIA operative working on the proliferation of WMD to terrorists who wish to do us harm?

There’s a reason it’s only happened once.

This goes far beyond a normal criminal prosecution.
 
Written By: Turd Blossom
URL: http://
How is this not relevant to the intentional outing of an undercover CIA operative working on the proliferation of WMD to terrorists who wish to do us harm?

Gee, wild guess here, but our courts are guided by how the Constitution defines treason, not a dictionary.
 
Written By: McQ
URL: http://www.qando.net/
I didn’t say anything about treason.

I was referring to the Espionage Act, which was the subject of the article, no?
 
Written By: Turd Blossom
URL: http://
Do you think the Espionage Act would criminalize the NY Times’ recent expose of CIA’s use of private airlines in the course of their mission to protect national security? The words seem to apply. Maybe Ms. Miller might have the company of her colleagues some day....
 
Written By: RAZ
URL: http://
"...your abysmal ignorance is so profound that I fear it has literally sucked knowledge out of my head. I am stupider for merely having read your comment."

A classic, Dale. I’m going to save and savor it.

—furious
 
Written By: furious_a
URL: http://wwwhanksvillememorial.com
It’s a battle of the dictionaries! Espionage...

Dictionary.com

The act or practice of spying or of using spies to obtain secret information, as about another government or a business competitor.

the systematic use of spies to get military or political secrets
Answers.com
The act or practice of spying or of using spies to obtain secret information, as about another government or a business competitor.

The term applies particularly to the act of collecting military, industrial, and political data about one nation for the benefit of another.
TheLawEncyclopedia.com
the crime of spying on the federal government and/or transferring state secrets on behalf of a foreign country.
LaborLawTalk.com
Espionage is the practice of obtaining secrets (spying) from rivals or enemies for military, political, or economic advantage. It is usually thought of as part of an organized effort (i.e., governmental or corporate). A spy is an agent employed to obtain such secrets. The definition has been restricted to a state spying on potential or actual enemies, primarily for military purposes...

Espionage, by a citizen of the target state, is generally considered to be a form of treason.
Legal-Explanations.com
The crime of spying on the federal government and/or transferring state secrets on behalf of a foreign country.
Merriam-Webster Online Dictionary
the practice of spying or using spies to obtain information about the plans and activities especially of a foreign government or a competing company.
Cool! I can look up words in the dictionary, too! I sure seem to find a lot of stuff about spying. Hmmm...wasn’t that the intent of the Espionage Act in the first place? Of course, if the Supreme Court can allow the federal government to make medical marijuana illegal under the Interstate Commerce clause, then I guess the intent of a law doesn’t matter anymore.

Oh, and Turd, congratulations on continuing to not understand how Dale was using the "moron" comment.

 
Written By: JWG
URL: http://www.qando.net
TBlossom:

You make four assertions not supported by facts...

intentional outing No proof that it was Rove who outed Ms. Plame, and none that if an outing did occur it was done intentionally to expose her.

That’s two.

undercover CIA operative No proof that Ms. Plame was working in a covert capacity, or that the CIA was working affirmatively to protect her covert status, and the time Robert Novak disclosed her name.

That’s three.

working on the proliferation of WMD to terrorists She was "working on" undermining the Administration during wartime in cahoots with her truth-challenged husband rather than on pursuing nassssty terrorists.

OK, that’s only three. The last one was an assertion usupported by facts, just as an example that might be familiar to you.

Three at-bats, three strikeouts, all in one sentence —Congratulations!

—furious
 
Written By: furious_a
URL: http://wwwhanksvillememorial.com
JWG,
Agreed. Using a dictionary definition was unnecessary on my part. Particularly when the definition I used obviously came from the wording of the Espionage Act itself. I should have merely quoted from the EA, which quite clearly indicates the intent of the law:

"Whoever, lawfully having possession of, access to, control over, or being entrusted with any document...
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...
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..."

I assume you’ve already read it, but perhaps my shortening of it will make it simpler for you.

The intentional outing of an undercover CIA agent (if proven) is unquestionably a violation of this law, and very much in line with the intent of the law. One would have to be a "moron" not to understand that.



furious a,

1) Sorry for the misunderstanding. I do not know that Rove intentionally outed Mrs. Wilson, I was saying that IF it was proven that he did, it would be a violation of the EA.
2) DOUBLE SUPER SECRET BACKGROUND. Also, she was working at Brewster Jennings, and Associates, a CIA front company. So not only was she exposed, but all of the other agents working there as well.
3) Why even bother.



Dale,

One final question:

If on September (the) 10th, 2001 a government official leaked to a reporter classified information concerning the attack the following day, and requested anonymity, would it be a threat to the freedom of the press and the first ammendment to send that reporter to jail for refusing to reveal his or her source?

Your answer to this will explain a lot to me concerning the point of your article.


 
Written By: Turd Blossom
URL: http://
You’re a little off base with your analysis of the ramnifications of applying the Espionage Act in this case.

Where the analysis strays is in the provision of the Espionage Act that, beyond divulging "information relating to the national defense", requires that "the possessor has reason to believe could be used to the injury" of the nation.

It would be very hard to prove that any journalist coming into contact with classified information, and publishing in its regard, had intent to "injure" the United States.

On the other hand, if you read through the Lawrence Franklin indictment in the AIPAC scandal, it is made very clear that when secret and classified clearances are given, clearees are briefed explicitly, and made to affirm, that communicating classified information to unauthorized persons causes ’injury’ to the United States.

Thus, one can surmise that this explicit portion of the briefing is there solely for the purpose of reserving the right to prosecute those who violate the agreement under the Espionage Act, since the fact that the clearee has orally and in writing affirmed that he is aware that unauthorized release of national defense information is likely injurious pretty much serves as a confession.

Without that explicit briefing, it would be very difficult to make the ’injury’ case, especially in this Rove affair. For those interested in the national security, it seems pretty clear that the way they brief individuals for classified access was shaped in such a way to ensure a number of options for prosecution, including the Espionage Act, should lapses occur.

Also, the Espionage Act is not concerned with whether there was knowledge by the leaker that the information was classified. The burden is on the individual with classified access to determine whether a piece of information is classified before communicating, and the Act is very explicit in stating that if there is any doubt on the matter, that the communicator should check with someone with the appropriate clearance to be sure.
 
Written By: Jimm
URL: http://
To repeat, the EA (793, 794, 798 in particular) does not require that anyone ’intentionally’ communicate classified information.

Quite the opposite, it is explicit in stating that the burden is on the communicator of classified information to know that the information being communicated is classified.

It also explicitly states that if the communicator is unsure, that the communicator should check with someone in a position to know one way or the other.

This is also part and parcel to the varying classified nondisclosure agreements that are signed upon gaining classified security clearance.
 
Written By: Jimm
URL: http://
It would be very hard to prove that any journalist coming into contact with classified information, and publishing in its regard, had intent to "injure" the United States.
Sorry, but Morison doesn’t say that you have to intend to harm the United States, Morison merely says you only have to show the accused knew that release of the information could cause harm to the US, even if no actual harm is done. That’s a pretty low bar.
To repeat, the EA (793, 794, 798 in particular) does not require that anyone ’intentionally’ communicate classified information.
Sorry, the plain language of the statute requires that the accused "willfully" released the information. That is a clear element of intentionality.
 
Written By: Dale Franks
URL: http://www.qando.net
Thanks for the explanation Jimm.

That would explain why Morison ended up in jail. (which I agree with Dale was a perversion of intent)

Do you know at what point classified information is no longer considered classified?

More specifically, who would be in charge of deciding exactly when Valerie Plame’s role with the CIA was no longer classified information?

Would it be Medal of Honor winner George Tenet?

Seems like that could be an out for Rove.
 
Written By: Turd Blossom
URL: http://
Sorry, the plain language of the statute requires that the accused "willfully" released the information. That is a clear element of intentionality.

You’re missing my point (maybe my fault). The communicator has to willfully communicate the information, but he does not have to be aware that the information is classified. The burden is on the communicator to know this, and for those with classified security clearances, this is made undoubtedly clear to them.

Thus, one does not have to prove intent to communicate classified information, as in actually knowing the information is classified, but merely intent and act of communicating information that turns out to be classified.

In other words, the EA does not make a distinction whether the communicator knows that information is classified. It doesn’t care. At least the relevant sections 793, 794 and 798 that Lawrence Franklin has been indicted under.

If you still don’t understand, or disagree, just read the Franklin indictment. It’s all there.

http://www.corporatecrimereporter.com/documents/franklinindictment_001.pdf
 
Written By: Jimm
URL: http://
For those of you on limited time, here are the relevant grafs from the Franklin indictment to support my argument:

Franklin...acknowledged that he would never divulge any classified information relating to the national security...further acknowledged that the burden was his to ascertain whether information is classified and who is authorized to receive it. Franklin acknowledged that he had read and understood the provisions of the Espionage Act, including U.S.C. 793, 794 and 798.

So, the burden is on the communicator of classified information, and there is no defense for "I didn’t know" (harsh, but true).

Franklin signed a Classified Information Nondisclosure Agreement, a Standard Form 312 (SF-312). In that document Franklin acknowledged that he was aware that the unauthorized disclosure of classified information by him could cause irreparable injury to the United States or could be used to advantage by a foreign nation and that he would never divulge classified information to an unauthorized person. He further acknowledged that he would never divulge classified information unless he had officially verified that the recipient was authorized by the United States to receive it. Additionally, he agreed that if he was uncertain about the classification status of information, he was required to confirm from an authorized official that the information is unclassified before he could disclose it.

Doesn’t get much clearer than that. In some ways, you can just substitute the name of the Plame leaker of your choice for Franklin and not be too far off the mark.

Oh, and I’m not a leftie, or a rightie, or a Democrat, or a Republican, and don’t condone that kind of binary thinking and ideological identification at all. Too primitive and limiting to the free rein of human mind and passion.
 
Written By: Jimm
URL: http://
One would have to be a "moron" not to understand that.
We all understand the seriousness of intentionally outing undercover CIA agents. The point of Dale’s "moron" reference was that by pushing for a conviction of Rove using the Espionage Act, the left would also unwittingly unleash serious consequences for free speech rights and the press. That would be moronic.
 
Written By: JWG
URL: http://www.qando.net
Jimm says
The communicator has to willfully communicate the information, but he does not have to be aware that the information is classified.
How does that assessment square with the phrase immediately before "willfully communicates"?
...the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation...
 
Written By: JWG
URL: http://www.qando.net
Jimm,

I am a free-thinker as well.

I read the Franklin Indictment, and found it very interesting.

Do you have any idea who has the authority to declassify classified information concerning CIA agents undercover.

If Bush had that authority, could he have declassified Mrs. Wilsons’ cover prior to Rove talking to Cooper about her?

Fascinating stuff.
 
Written By: Turd Blossom
URL: http://
So, the burden is on the communicator of classified information, and there is no defense for "I didn’t know" (harsh, but true).
Well, OK, fine, but now you’re making my argument even more powerfully. Now the government has the powet to prosecute someone who releases classified information that they didn’t know was classified.

If so, that makes the use of the EA for leak prosecutions even more frightening.
 
Written By: Dale Franks
URL: http://www.qando.net
Do you know at what point classified information is no longer considered classified?

No. My best guess is "not for a long time", especially when you’re considering front operations for WMD that are still ongoing (but in different forms now). Certainly not less than a decade after these operations were active.

More specifically, who would be in charge of deciding exactly when Valerie Plame’s role with the CIA was no longer classified information?

It would not be Tenet, who is gone. To my knowledge, there is not really any debate at this point that classified information was compromised. None of the judges seem to have a problem with it.

What’s left is determining who leaked.

If it’s someone with classified clearance, they will be threatened with the fate of Franklin (who, by the way, has not been tried yet, and thus ought be considered innocent until proven guilty), because they likely have affirmed that they know that unauthorized disclosure of classified information is ’injurious’ to the United States.

If it’s a journalist, or journalists, then proving intent to injure the U.S. would be nearly impossible, and there likely will be no legal ramnifications.

Most likely, it’s a combination of both, and I would imagine that those threatened with prosecution will cut a deal before going to trial. It’s also possible that they won’t, and count on receiving a pardon from Bush when he leaves office. When you look at former felons who have been rehired by the Bush Administration, felons who have lied to the American public, it’s not difficult to imagine what Bush will do if Rove or anyone else close to him is convicted in this affair.

We all understand the seriousness of intentionally outing undercover CIA agents. The point of Dale’s "moron" reference was that by pushing for a conviction of Rove using the Espionage Act, the left would also unwittingly unleash serious consequences for free speech rights and the press. That would be moronic.

I demolished that argument above.

The burden of proving that a journalist had intent to ’injure the United States’ by communicating classified information is a burden that is almost impossible to meet and prove. No prosecutor in the Justice Department would bother unless they had reason to believe the disclosure by said journalist was onerous in some way beyond just breaking a story.

On the flip side, anyone who has signed and affirmed the various classified nondisclosure agreements upon granting of clearance is already on record as acknowledging that the burden is on them to know whether information is classified, and that communicating classified information to an unauthorized person is injurious to the United States.

In other words, it would be difficult to prosecute anyone, not just a journalist, for communicating classified information to an unauthorized person, since one has to prove intent to ’injure’ the U.S. Those with classified clearances have already set themselves up to meet this burden should they ever violate the classified nondisclosure agreements.

That is why application of the EA in this case would be very specific, not very broad. It would be directly related to the oaths performed when one receives a security clearance and affirms that communicating classified information to an unauthorized party is injurious to the United States.
 
Written By: Jimm
URL: http://
I demolished that argument above.
No, you didn’t. Your assesment is flatly contradicted by Morison.
 
Written By: Dale Franks
URL: http://www.qando.net
Well, OK, fine, but now you’re making my argument even more powerfully. Now the government has the powet to prosecute someone who releases classified information that they didn’t know was classified.

I read back over my comments and realize I’m being too wordy, so I’ll just narrow things down.

The real burden of prosecution under this act would be ’intent to injure U.S.’. This part pretty much will protect any journalist not only from conviction, but even consideration for prosecution. The burden would be too great before a jury to convict a journalist of intent to injure the U.S. just for breaking a story.

The reason why application of EA in this case would be very specific, as opposed to very broad, is the built in traps that the U.S. has wisely added to the process of receiving a security clearance, so that the burden of ’injury’ can be met.

We accomplish this by the language of the classified nondisclosure agreements, and with oaths, where the clearee affirms that communication of classified information to an unauthorized party constitute injury, and that the burden of knowing whether information is classified is on them.

We do this to protect ourselves in the greatest way against compromise of our national security objectives. The burden is high, and if you don’t want it, you don’t have to sign up and take the job. If you do, you better be careful, and not get too cocky. That’s the lesson here, and compromising national intelligence out of hubris or political competition is out of line, and ought be made an example of in terms of punishment, if even only symbolic.
 
Written By: Jimm
URL: http://
No, you didn’t. Your assesment is flatly contradicted by Morison.

No. Morison is an exception. Journalists do not have security clearances. Morison presumably did. Thus, Morison was at risk of prosecution, since he had likely taken an oath acknowledging that communicating national defense information to an unauthorized party could injure the United States.

For anyone who has not made such an oath, the burden would be far greater to show intent to injure. And, in the case of a regular journalist breaking a story, the burden would be so high and seemingly absurd that there would never be an indictment, let alone a trial, unless there were nefarious motives tied to the journalist beyond breaking a story.
 
Written By: Jimm
URL: http://
I wonder if Rove took the oath, or if he has civilian status.

Seems like that is what will make the difference.
 
Written By: Turd Blossom
URL: http://
Actually, the Democrats are asking for his security clearance to be revoked, so I guess he did.

Uh Oh.
 
Written By: Turd Blossom
URL: http://
Thanks for the lesson Jimm,
and the article Dale,
I’ve learned a lot today.

Even though I’m not a Democrat, I despise the current administration, so I hate to say it, but this is kinda fun.

Goodnight all.
 
Written By: Turd Blossom
URL: http://
Dale - Great work. I had a post of my own today on Morison and the other leading EA cases.

One quibble: what Congress intended in 1917 is irrelevant. The 1917 statute required disclosure with "intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation". That standard was changed to the current, reason to believe that the information "could be used," standard, at a later date, I believe in 1949 or 1950. The lower standard, by eliminating the requirement of deliberately knowing that a foreign power would rather than merely could misuse the information, unmoored the statute from its previously intimate connection to spying, enabling its use against leaks.
 
Written By: Crank
URL: http://www.baseballcrank.com
For anyone who has not made such an oath, the burden would be far greater to show intent to injure.
Sorry, but you’re just flat wrong. The 4th circuit held that a leak might come from "the most laudable motives, or any motive at all," and it’s still a crime. You keep harping on intent, and intent just isn’t a serious bar. According to the 4th Circuit Court of Appeals, intent is essentially irrelevant.
 
Written By: Dale Franks
URL: http://www.qando.net
One quibble: what Congress intended in 1917 is irrelevant.
How is this a quibble? I made the same point.
 
Written By: Dale Franks
URL: http://www.qando.net
Well, more precisely, what Congress said in 1917 is irrelevant.
 
Written By: Crank
URL: http://www.baseballcrank.com
Crank, that was a very interesting post on your blog. Thank you. I’m wondering if I understood you correctly when you wrote that two courts
expressed alarm at the First Amendment implications of an overly broad definition of the National Defense requirement
Does this point parallel Dale’s concern about the use of the EA to muffle the press? Could an administration label some unflattering information as potentially damaging to the US and threaten the media with prosecution?
 
Written By: JWG
URL: http://www.qando.net
Rhetorical complaint. You begin as follows:
So, now the Left, having realized that the Intelligence Identities Protection Act of 1982 might not work to put Karl Rove in prison, are scrambling to find something that will. They’ve lit upon the Espionage Act of 1917 as their new touchstone.
In what POSSIBLE way are the scribblings of the "Left"—as you put it—any more relevant to the application of these statutes than your own comments? We are all just (entertaining ourselves by) speculating here; it strikes me that the—only—parties relevant for criticism are Fitzgerald and the courts.

So your rhetorical silliness is a bit annoying. Maybe you are warming up to blast Fitzgerald?
 
Written By: stencilv
URL: http://
So your rhetorical silliness is a bit annoying.
You’re joking, right? The Left side of the blogisphere and Air America is all over the Espionage Act. Leftists on this site challenged QandO to evaluate the Espionage Act. Dale did so and found serious problems with its application in the Plame scandal. Therefore, those who are salivating over the EA and "frog-marching" Rove were criticized for missing the bigger picture.
 
Written By: JWG
URL: http://www.qando.net
I have nothing substantive to add, but just wanted to express my appreciation for the manner in which the posters have been airing their disagreements. On most comment threads, the use of a term like "moron" is the jumping off point for an escalation of snark. Here, you guys seemed to realize pretty quickly that everyone (despite their various political inclinations) was simply trying to better understand a difficult set of issues, and proceeded accordingly.

Keep up the good work.
 
Written By: salaryman
URL: http://
Rhetorical complaint. You begin as follows:
So, now the Left, having realized that the Intelligence Identities Protection Act of 1982 might not work to put Karl Rove in prison, are scrambling to find something that will. They’ve lit upon the Espionage Act of 1917 as their new touchstone.
In what POSSIBLE way are the scribblings of the "Left"—as you put it—any more relevant to the application of these statutes than your own comments? We are all just (entertaining ourselves by) speculating here; it strikes me that the—only—parties relevant for criticism are Fitzgerald and the courts.

So your rhetorical silliness is a bit annoying. Maybe you are warming up to blast Fitzgerald?
 
Written By: stencilv
URL: http://
You’re joking, right
Well, in part yes. Your original statement seems to take itself pretty seriously. I mean: it is NOT that "left side of the blogosphere" that has the capacity to do something. So the rhetorical excess is annoying. (As is the left’s excess, I agree. Though I do f**king hate Rove and more-or-less everything he stands for...)
 
Written By: stencilv
URL: http://
Your original statement
Sorry: "The original statement..."
 
Written By: stencilv
URL: http://
It is disingenuous and Rove-ish to pair up the words “leaker” and “whistleblower” with an “or” in between when discussing this case. Yes, whistleblowers leak information. And Rove certainly leaked classified information with national security implications and put lives at risk. But Rove is no whistleblower by any stretch. Whistle blowing has to do with exposing wrong doing and wrong doers. Whistle blowing is done in the public’s interest and is a courageous and heroic act. Keep the term “whistle-blower” out of this discourse all together or you might confuse the lazy thinkers. They may walk away thinking that treason is patriotic if involves leaking sensitive information to the press for political gains rather than selling secrets for cash. They may walk away thinking that putting Americans at risk is a commendable political tactic to use. They will think that this kind of behavior should be encouraged and protected. It seems that even the media is confused. The first amendment does not protect traitors. It protects whistle blowers. Karl Rove is no whistle blower.

Let me give you an example of what Karl Rove might have leaked if he wanted to be a whistle blower and hence, act courageously and patriotically in the public interest. He could have given reporters evidence that the bullet list of intelligence goodies Bush was peddling was fabricated by the OSP and OSP’s paid consultant and convicted bank fraudster and embezzler, Ahmed Chalabi. And yes, if this was the content of Rove’s leak, first amendment protection issues can enter the discussion.

Rather than saying "leaker and whistleblower", you can say "leaker or traitor". That pair up would be appropriate in the context of this case, as Karl’s actions would make him both. They certainly don’t make him a courageous and heroic whistleblower. What he did is treason. After all, what is worse? Selling secrets to foreign States for cash as several Americans have been jailed for in the past, or exposing an agent for political gains as Karl Rove did? Six of one, half dozen of the other?

Joe Wilson wanted Americans to have the facts about the war Bush was peddling. After all, it would be Americans who would killed in Bush’s war. Didn’t they deserve to know the truth before they sacrifice their lives? Bush’s war rational was extremely weak at best, but more likely completely fabricated by Libby and Cheney’s elves in the Office of Special Plans. The OSP had but one mission. It was to fabricate these lies. The OSP was established for that purpose and once it completed its mission, its work was done, and the OSP closed up shop.

Rove’s treasonous act was done for political gain. And that political gain involved the selling of an illegal war on the basis of fabricated information, otherwise known as lies. “Mislead” is such a gentle term. It is a term more suited for situations like if I told that my pancake syrup is 100% Canadian maple and it is really just maple flavored. At least I’m not getting anybody’s kids killed. But when you are fabricating a fictitious basis for war and then expecting Americans and Iraqis and Spaniards and Londoners, etc. to die for your fiction, “mislead” just doesn’t do it justice. “Lie” gets us just a little closer. But there is no word in our language strong enough to describe what these people have done. But there are a couple of terms; war crimes and crimes against humanity.

It is not six of one, half dozen of the other given that Karl Rove’s motivation was to cover up the lies and feed American kids into their war machine. Karl’s flavor of treason is magnitudes greater than the guy who trades secrets for a suitcase of cash.
 
Written By: just another lefty-boy
URL: http://
And Rove certainly leaked classified information with national security implications and put lives at risk.
Yikes, lefty-boy...that accusation sure blew up in your face, didn’t it? Have you read the news lately?
Joe Wilson wanted Americans to have the facts about the war Bush was peddling.
Yikes, again. Do you ever read the actual documented facts before you rant, or do you just depend on what Kos feeds you? In case you still refuse to read the linked evidence:
Conclusion 13. The report on the former ambassador’s trip to Niger, disseminated in March 2002, did not change any analysts’ assessments of the Iraq-Niger uranium deal. For most analysts, the information in the report lent more credibility to the original Central Intelligence Agency (CIA) reports on the uranium deal...
 
Written By: JWG
URL: http://www.qando.net
You just made MY case JWG.

The former ambassador’s trip to niger, did NOT change ANY analysts’ assesments of the Iraq-Niger uranium deal. For MOST analysts, the information in the report LENT MORE CREDIBILITY TO THE ORIGINAL CIA REPORTS ON THE URANIUM DEAL...then you STOP QUOTING THE REPORT BUT IT GOES ON TO SAY

BUT...the State Department Bureau of INTELLIGENCE analysts believed that the report SUPPORTED THEIR ASSESMENT that Niger was unlikely to be willing or able to sell uranium to Iraq.

That was Colin Powell’s Intel. He no longer works at the WH. He was RIGHT. Joe Wilson was RIGHT. And everyone has apologized for those WORDS in the STATE of the UNION speech. So now what?

Also don’t skim the document. Read the second paragraph in the report. Intelligence Does NOT support the conclusion that Iraq was "reconstituting it’s nuclear program"

And of course, now that we’ve torn Iraq and Iraqi’s to shreds, NOTHING.

They lied. And by the way Valarie Plame was covert on the day she was exposed by Karl Rove (who first learned of her covert status on Air Force One the day the Wilson piece came out) in a CLASSIFIED BRIEFING that was sent to AF One. Read today’s Wall Street Journal.

It’s over. Hope they built some air conditioned cells at Guantanamo. These guys are evil doers.

RRAAR

Now what?
 
Written By: RRAAR
URL: http://
Joe Wilson was RIGHT.
And yet, oddly, as you say, most intelligence analysts disagree.
And by the way Valarie Plame was covert on the day she was exposed by Karl Rove.
And yet, even Ambassador Wilson says otherwise.
 
Written By: Dale Franks
URL: http://www.qando.net
I’m still waiting for any of the folks who are outraged by Plame’s "outing" to be offended by the disclosure of an active CIA operation. Said disclosure happened AFTER Plame, so it can’t be that it is "old news".

I’m referring to the "Air Iraq" operation that had to be shut down as a result of the disclosure.
 
Written By: Andy Freeman
URL: http://

 
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