L'affaire Plame and federal espionage law

October 07, 2005

I Spy

The New Pravda adds to the speculation that Patrick Fitzgerald may soon put Karl Rove and/or Scooter Libby and/or their "high-level unindicted co-conspirators" in the same category as the AIPAC 3 -- i.e. espionage agents:

Recently lawyers said that they believed the prosecutor may be applying new legal theories to bring charges in the case. One new approach appears to involve the possible use of Chapter 37 of the federal espionage and censorship law, which makes it a crime for anyone who "willfully communicates, delivers, transfers or causes to be communicated" to someone "not entitled to receive it" classified information relating the national defense matters.

Under this broad statute, a government official or a private citizen who passed classified information to anyone else in or outside the government could potentially be charged with a felony, if they transferred the information to someone without a security clearance to receive it.

This idea actually has been kicking around for several years -- John Dean raised it in a column shortly after L'affaire Plame erupted, Mark Kleiman suggested it back in July, and Jim VandeHei and Walter Pincus wrote about it in the Washington Post just a couple of days ago.

But of course, the New Pravda's been too busy covering the Scooter and Judy romance (the TomKat story for ugly people) to pay much attention to All The News That's Not Fit to Print. So when it describes the "theory" that the espionage statute might apply in the Plame case as "new," it means new to the arrogant pinheads who populate the New Pravda's Washington bureau.

(Having met more than a few of them, I can assure you that many, if not most, would not have felt out of place in Monty Python's upper class twit of the year contest.)

The reality, as Dean pointed out way back when, is that the application of the espionage statute to cases that have nothing to do with, well, espionage, is neither new nor a theory. It was pioneered by the Reagan Administration more than 20 years ago, in its prosecution of Samuel Morrison, a Naval intelligence analyst caught leaking satellite photos of a Soviet aircraft carrier to Jane's Defense Week:

Although the photos compromised no national security secrets, and were not given to enemy agents, the Reagan Administration prosecuted the leak. That raised the question: Must the leaker have an evil purpose to be prosecuted? The Administration argued that the answer was no. As with Britain's Official Secrets Acts, the leak of classified material alone was enough to trigger imprisonment for up to ten years and fines. And the United States Court of Appeals for the Fourth Circuit agreed. It held that the such a leak might be prompted by "the most laudable motives, or any motive at all," and it would still be a crime. As a result, Morrison went to jail. (emphasis added)

It's interesting that the New Pravda doesn't remember this, since in its previous incarnation as the New York Times, it was one of a number of media organizations that filed an amici curiae brief in support of Morrison. I guess Keller and Pinch had that episode erased along with the rest of the old Times's institutional memory.

But I'm sure the Cheney administration itself is well aware of the precedent -- which probably explains why the Rovians have been so terrified of this investigation all along. The ultimate irony of this case is that they, along with their ideological soulmates in the Reagan administration, are the precisely ones who gave Fitzgerald the legal tools he needs to send their asses prison.

Under the the leadership of former Grand Inquisitor John Ashcroft, the Justice Department used the Morrison precedent to go after such grave threats to national security as a researcher at the DEA who leaked details about a money laundering operation in Belize (maybe DeLay had a piece of the action) to a British journalist.

Rove and his attorneys probably have already noticed that in that particular case the Grand Inquisitor supplemented the espionage count with charges brought under a 1994 statute designed to punish the unauthorized use of government computers, or the unauthorized disclosure of the information stored therein. This could become a real problem if the information about Plame that Scooter and Karl shared with their phone buddies (and/or "special friends") in the Washington press corps was taken from a computerized data base, or transmitted via e-mail, or printed off on a work station printer or . . . well, it's hard to imagine the leak didn't involve the unauthorized use of government computers, if Fitzgerald's team is as inclined as the Ashcroft Justice Department to make the law fit the crime.

We still don't know for sure that they are, but thanks to the 4th Circuit, there's no legal reason why they shouldn't or couldn't -- assuming, of course, that the Rovians learned about Plame's CIA affiliation from a classified document (like the infamous State Department memo) knew that it was classified, and leaked it any way.

The notion that Fitzgerald is dreaming up "new" legal theories to take the espionage statute where it has never been before is just typical White House disinformation. If the New Pravda reporter
(David Johnson, not to be confused with the talented and aggressive David Cay Johnson) had even a cursory understanding of the case -- or had spent a few minutes with Google -- he might have realized that.

Update 1:55 PM ET: When White House officials refuse to comment on the Plame case because (they claim) the special prosecutor has asked them not to talk, they get pilloried by the press -- including the New Pravda's editorial page. But when it's the paper's own heinie that's hanging out there in the breeze, suddenly the rules change:

Bill Keller, the executive editor of The Times, said Ms. Miller had been cautioned by her lawyers not to discuss the substance of her grand jury testimony until Mr. Fitzgerald finished questioning her. "We have launched a vigorous reporting effort that I hope will answer outstanding questions about Judy's part in this drama," Mr. Keller said. "This development may slow things down a little, but we owe our readers as full a story as we can tell, as soon as we can tell it."

Sure Bill -- just like you've promised a year-and-a-half ago to launch a "vigorous reporting effort" to expose the truth behind Miller's fraudulent WMD stories:

We consider the story of Iraq's weapons, and of the pattern of misinformation, to be unfinished business. And we fully intend to continue aggressive reporting aimed at setting the record straight. I'm sure you'll forgive us if we in the reality-based community don't hold our collective breath.

Posted by billmon at October 7, 2005 12:10 PM

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