Baseball Crank
Covering the Front and Back Pages of the Newspaper
July 14, 2005
LAW: The Espionage Act

Tom Maguire, after eviscerating some spin from Josh Marshall on the Plame story, asks for legal help:

[Mark]. Kleiman has argued that, rather than pursuing a prosecution under the Intelligence Identities Protection Act, Mr. Fitzgerald might try for a conviction under the Espionage Act. We have met skeptics. But let's save Mr. Kleiman from tearing his hair out in frustration - some enterprising reporter might want to check with a few lawyers and see whether that statute might apply. (Of course, if there were any lawyers in the blogosphere, they might want to join in, too. . . )
I've expressed my skepticism on this before (see the post Maguire links to), but of course that was without reading the caselaw. Being a lawyer myself with some experience reading criminal statutes, I did a bit of digging to see what else I could find. Now, with limited time on my hands and no paying client to do the kind of thorough online research I would otherwise do, my thoughts here are preliminary, not comprehensive (all I did was read a few cases listed in the US Code Annotated). (Standard disclaimer: this post is not legal advice). So, someone willing to spend some time and money on more thorough research may come to different conclusions. But, for what I can offer based on that limited review, I came up with a few preliminary thoughts on the Espionage Act. First, the as I noted in the post linked above, the key issues in an Espionage Act prosecution are:

a. Whether the information disclosed by Rove or others about Valerie Plame was "information relating to the national defense." (The National Defense requirement).

Factually, of course, this depends on what was disclosed - Rove apparently told Cooper that Joe Wilson's wife worked for the CIA. Is that enough? Does she need to be named (the name could be found online once you knew she was Wilson's wife)? Do you need to disclose that she had been covert?

b. Whether the person making the disclosure "ha[d] reason to believe" that the disclosed information "could be used to the injury of the United States or to the advantage of any foreign nation". (The Scienter requirement).

1. As to the National Defense requirement, there is caselaw holding that information relating to US intelligence-gathering can be covered by the statute. In Gorin v. United States, 312 US 19, 29 (1941), the Supreme Court held that a jury could find that this requirement was satisfied by the the defendant's disclosure to the USSR of US Naval Intelligence reports on Japanese activities in the US:

As they gave a detailed picture of the counter-espionage work of the Naval Intelligence, drawn from its own files, they must be considered as dealing with activities of the military forces. A foreign government in possession of this information would be in a position to use it either for itself, in following the movements of the agents reported upon, or as a check upon this country's efficiency in ferreting out foreign espionage. It could use the reports to advise the state of the persons involved of the surveillance exercised by the United States over the movements of these foreign citizens. The reports, in short, are a part of this nation's plan for armed defense. The part relating to espionage and counter-espionage cannot be viewed as separated from the whole.

The Fourth Circuit reached a similar conclusion in United States v. Truong Dinh Hung, 629 F.2d 908, 918 (4th Cir. 1980), permitting the conviction of individuals who disclosed, to the Vietnamese government, information including the "names of United States sources for intelligence about the Vietnamese government."

While both the Gorin Court and Judge Learned Hand of the Second Circuit in United States v. Heine, 151 F.2d 813, 815 (2d Cir. 1945), expressed alarm at the First Amendment implications of an overly broad definition of the National Defense requirement, it seems clear that - unless there has been subsequent caselaw calling Gorin and Truong Dinh Hung into doubt - information bearing upon US intelligence-gathering methods can, at least in some cases, be covered by the statute.

(Were I representing a defendant charged under these circumstances, I might also try to argue that the Espionage Act is either superseded by, or that the National Defense requirement is subject to the definitions in, the Intelligence Identities Protection Act, given that the latter statute is both subsequently enacted and more specifically targeted to the protection of identies of intelligence agents.)

2. Gorin expressly held, at 312 U.S. at 31-32, that the ultimate question of whether the prosecution had satisfied the National Defense requirement was for the jury to decide. Thus, in a prosecution of Rove or other Bush Administration officials, unless the Court concluded as a matter of law that the information disclosed was too removed from the national defense to sustain an indictment, the defense would be permitted to argue to the jury that, given Valerie Plame's employment as a desk-bound Langley-based analyst, and the amount of time since she had worked in the field, there was simply no substantial "relati[on]" between her status as a CIA employee and the national defense. As I noted in my prior post, a creative defense attorney might even find a way to argue to the jury that the relation to national defense was further undermined by her involvement in Joe Wilson's campaign to spread public falsehoods about his own reports to the CIA during a time of war.

Of course, you should immediately see one of the practical problems that would face Patrick Fitzgerald in using the Espionage Act: while the Intelligence Identities Protection Act has a strict definition of "covert agent," the more broad-ranging definition of the National Defense requirement in the Espionage Act would require the prosecution to put on evidence, in open court, of the relation between Plame's identity and activities important to intelligence-gathering, evidence that might itself compound the harm involved. While a politically-prominent defendant would want to tread softly on forcing such proof into the open, and while there are sometimes procedures used to protect against public disclosure, the mere risk that a prosecution could compromise intelligence-gathering efforts would be a disincentive to bring charges under the more open-ended statute.

3. The Scienter requirement is the most troubling one for the prosecution. Gorin held that the Scienter requirement saved the statute from the challenge that it was unconstitutionally vague:

[W]e find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring '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.' This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established.

Gorin, 312 U.S. at 27-28 (footnote omitted). The statute was subsequently amended to require only reason to believe that the information "could be used," not "is to be used," to the harm of the US or the benefit of a foriegn power. At first glance, that sounds pretty broad, but as I noted before, this yet again brings into the debate the issue of whether the person making the disclosure had reason to believe that there could be actual harm flowing from the disclosure of Plame's identity, a matter that appears to be hotly disputed. Certainly, a criminal conviction would not be sustained on the basis of mere slippery-slope conjecture, but would require evidence that the defendant actually had reason to believe that such harm could potentially ensue in the specific case of Valerie Plame.

Moreover, the Fourth Circuit in Truong Dinh Hung, 629 F.2d at 919, and United States v. Morison, 844 F.2d 1057, 1070 (4th Cir. 1988), stressed a different point: that the statute requires that the disclosure be made "willfully." As the Morrison court noted, that required proof of the "specific intent to do something that the law forbids. That is to say, with a bad purpose either to disobey or to disregard the law." (The Truong Dinh Hung court approved a similar instruction, which also defined bad faith as a "design to mislead or deceive another. That is, not prompted by an honest mistake as to one's duties, but prompted by some personal or underhanded motive."). And the Supreme Court has only gotten stricter in the years since 1988 on the definition of "willful" conduct in the criminal context, sometimes even requiring proof that the defendant knew of the law in question. A prosecution based on carelessness - by someone who knew that Plame worked for the CIA and never bothered to check whether she had ever been covert - would, I suspect, go nowhere fast, given the willfulness requirement.

4. A number of courts - most notably the Heine court, and more recently Morison - have limited the statute's reach to information that "ha[s] not been made public and [is] not available to the general public." This seems like it is not a requirement of strict secrecy. In any event, it would seem that this requirement, as with some of the others, would open the door to litigation over the degree of secrecy of Plame's identity and the extent of efforts undertaken to preserve that secrecy. See United States v. Enger, 472 F. Supp. 490, 508 (D.N.J. 1978) ("In the course of the proofs, evidence bearing upon the issue of secrecy will be relevant, for, as the Court said in Gorin, '[w]here there is no occasion for secrecy, . . . there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government.'"). See also United States v. Dedayen, 584 F.2d 36, 39-40 (4th Cir. 1978).

5. The Fourth Circuit held, in Morison, 844 F.2d at 1070, that the Espionage Act covers information leaked to the media, so that would not be an obstacle (although in an interesting side note, the First Amendment challenges raised there by the Washington Post and other newspapers led Judge Harvie Wilkinson to file a concurring opinion worrying over those concerns).

UPDATE: Dale Franks has more (also here) on the consequences for a free press of use of the Espionage Act on leaks, and Mark Kleiman responds.

SECOND UPDATE (10/17/05): Since the indefatigable Minute Man keeps linking back to this post, I should point you to followup posts here and here addressing further legal aspects of an Espionage Act prosecution, as well as the earlier post (here) discussed above. Together, the four posts offer my overview of the significant legal issues.

Posted by Baseball Crank at 5:45 PM | Law 2005 | Comments (8) | TrackBack (2)
Comments

Interesting, if a bit hard to completely follow for the non-legally trained. Putting aside whether there is guilt at a legal level since the odds are that whether or not Rove were to be convicted his pardon is virtually assured (hell, he probably wrote one for himself that just needs to be dated at this point) where does the Bush Admin go from their previously stated position (of course they are saying nothing now) that if anyone within the administration were to be found to have been the ones that leaked this information (not "found guilty') that they would be fired?

I am not jumping up and down for Rove to be shuttled unceremoniously out of his post (although I think it would be a good thing) since he would just take on some other capacity not paid for by the US public that allowed him to consult and whatnot. However, the statement was made on more than one occasion. I guess GOP Inc has never had too much of a problem going back on their word/changing the facts to fit the position/bald-faced lying so it would seem likely that they will take no action. Thoughts?

Posted by: jim at July 14, 2005 5:58 PM

I'll accept Jim point that leaving Karl in office if he skates on a technicality would be troubling.

However, the case can be made that Bush originally spoke about firing people who violated the law. Subsequent restatements of that position, sans caveats, are therefore inoperative.

And as to "justice", suppose we learn that Judy Miller told Rove, who passed it back to Cooper half an hour later (I DO NOT endorse this theory, but I'm just sayin').

In that scenario, should he be convicted? Fired?

My point - Rove must have learned it from someone (or somewhere). MAYBE, depending on his source, it really does not look so bad.

Well, no thread hi-jacking.

If I get point 5, the Esp Act could be used here; point 3 is clear enough.

SO one conclusion would be that any speculation thatFitzgerald doesn't have a useful statute is wildly premature. I think.

Posted by: Tom Maguire at July 14, 2005 8:09 PM

A prosecution based on carelessness - by someone who knew that Plame worked for the CIA and never bothered to check whether she had ever been covert - would, I suspect, go nowhere fast, given the willfulness requirement.

I thought I'd read (but can't at the moment find) something the other day that said that a person with security clearance has a positive responsibility to know the status of information, that carelessness isn't a defense.

I think it'd be reasonable, for instance, to expect an official who was thinking about describing an employee of the CIA to a reporter to find out what that employee's covert status is before they (hypothetically) said anything.

Not a lawyer, but googling around I keep seeing "knows or has reason to know". I'm taking that to mean that the official is responsible for the disclosure if they a) knew the information was classified, or b) that they should have known, could have found out. Is that the case? Does that make the willfulness requirement less troubling for the prosecuter?

Genuinely curious.

Posted by: sleepy at July 15, 2005 11:37 AM

Starting points.
Not my objective to dispute the legal analysis ably laid out here.

Call mine a context note.

This is in part a sports site, no? Assuming we can agree that it's not baseball we're watching, or Court TV for that matter, I'll offer up a few thoughts and be outta here.

First, for a scorecard observing the Plame grand jury goings-on, I'd pick a more flexible analytical model than I've seen represented on this and virtually all other blogs. Call mine the "algorithmic approach": keep adjusting the criminal theory to give best fit to the developing criminal data (evidence).

Which approach I believe Patrick Fitzgerld is and should be using. He's a criminal prosecutor, folks, not Katie Couric or Punch Sulzberger. His is not Bill Daley's "continuing campaign." It has an end-point: indictments (if any), trial, and go home.

He has the tools of compulsory prss, is well aware of the Fifth Amendment's right to remain silent, (as we presume, is J udge Hogan, who accommodated Ms. Miller's right to remain silent by, well, allowing her silence to continue at least until the end of the present grand jury's tenure.)

In semi-closing, "best fit" doesn't auger well for the Wilson/Plame machine. Or the media horses they rode in on.

In closing, have you seen Peter Goss's face on the cover of Vanity Fair lately? Psst. He's DCI, but don't let on to Gabon.


Which, I hasten to add, is a prosecutor's job. Matching evidence to a suspect.

Which explains a number of things: Karl Rove is not a "target" because he doesn't "fit." Judy Miller is in stir, not because she doesn't fit, but because she doesn't NOT fit. The Wilson/Plames are not in stir because Judy Miller is, the NYT (Judy Miller's employer) is in a fascinatingly self-contradictory fit), that does fit...

Well, not to impose my thoughts or the thread,

I'd offer this: Patrick Fitzgerald is no stranger to the prosecutorial process.



Posted by: Barnestormer at July 15, 2005 12:49 PM

Your Espionage Act case law omits most recent enforcement, an aggresive prosecution by Reagan Admin in '84. I summarize in this JustOneMinute post, which borrows from an article by John Dean.

Posted by: jdm at July 15, 2005 1:07 PM

jdm - I cited the Morison case above. Read the post.

Sleepy - I saw that point in the QandO thread. That may be generally true for handling classified information, but I suspect it wouldn't hold water for requiring someone who knows the non-secret identity of a non-covert CIA analyst to conduct a background check on them to see if they were ever covert. Esp. with Rove, since his security clearance may not have extended to the identities of CIA NOCs (someone like Lewis Libby is more likely to have had such clearance, though).

Also, there are problems with shifting the burden of proof to the defendant on an element of a criminal case.

Posted by: The Crank at July 15, 2005 1:19 PM

The Crank at July 15, 2005 01:19 PM:

jdm - I cited the Morison case above. Read the post.

yes, apologies.

I intended to hi-light Reagan Admin's Morison arguments, as they were (IMO) considerably more aggessive than what your summary suggests.

I read your links to Kleiman's response and Q&O: I think Q&O is incorrect on critical points: in particular...
- "Mr. Rove must have known it to be classified."

Doesn't say that AFAIC. Consider this snippet from Dean's article:

(...)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.

I recall the gist of WSJ OpEd's at the time, extolling Reagan's high principal in the matter.

I suspect it wouldn't hold water for requiring someone who knows the non-secret identity

we don't know that("non-secret" identity), Andrea Mitchell's comments notwithstanding.

of a non-covert CIA analyst

don't know that either, nor all the related activities that could be affected (eg. front company/other operatives etc.). Rw'ers are pushing hard to cement notion Plame was "just another Joe", but entire rw media push in this is all anonymous sources, rumour etc. The scant evidence available suggests otherwise, AFAIC.

2 things I'd point out:
- CIA's anger at WH "outing" (or whatever you call it) initiated Fitzgerald investigation. Do you think all these repub surrogate talking heads know more about her status than CIA? Contrary to wurlitzer buzz re: Wilson's Blitzer interview, Wilson intimates Novak blew her cover, not the other way around.

- to very great extent GWB's war is built long public record of his admin's comments building aura of relentless commitment to rid the world of WMD. It was the entire rationale for invading Iraq... until they found out there weren't any.

WMD is Plame's expertise. Everything I've seen says she was the best of the best at her work, acknowledged by coworkers since her earliest CIA days. She was on tap for promotion previous to this thing. What do you think those infuriated CIA insiders are thinking as they watch WH GOP/WH surrogates trash her mercilessly now? You think maybe they're giving Fitzgerald a itzy bitsy little pointers here and there to help out? Today's "leaks" in WP/NYT articles saying Rove did tell Novak about Plume's CIA affiliations look like a push back to yesterday's "leaks" claiming just the opposite.

That's a pretty fast push back... I wonder who the "pushers" were? I'm mindful of Reagan's re-contextualiztion of Espionage Act in Morison.

To summarize a few (IMO) key points:
* Plame is said to be ME WMD expert
* Plame is said to have worked undercover in highest priority assignments (eg. no safety net)
* WH's media assault seeks to portray Plame as Nepotistic Bush hater manipulating CIA resources(eg. "authorizing" Joe's Niger trip) to discredit his war effort/rationale.
* Wilson was right (no yellow cake): GWB was wrong, with long trail of evidence suggesting he/WH "fixed the intelligence around policy". This is relevant here: read up on Fitzgerald's subpeoned AF1 phone records from GWB's Africa trip, and what was going on at that time. The truthfullness of GWB admin's many claims that "16 words" was an accident are going to be at center of subjects discussed in which potential purjury was committed. The number of GWB admin officials involved suggest strong possibility of conspiracy, which is echoed in several latest "leaks" from Fitzgerald's office.
* As latest polls show, public's view of GWB's veracity not doing so good. Mehlman (et'al) appearing everywhere sliming Wilson's is in full public view: the contrast of this slime machine vs. GWB's patriotic image is being measured by public. Does the public think the hits on Wilsons are legitimate?... or as effort to save a buddy's ass, intelligence agents be damned? How will this affect framing of Espionage Act charges, if they come?
* Cheney's claim that he never saw Wilson's report is increasingly unbelieveable: he/Libby "visited" CIA at least twice at time this report was "widely disseminated". Cheney was anonymously quoted as saying at these meetings he was.. "not pleased with the intel" he was getting.
* We know that, in role Bolton assumed at State Dept., he overode existing protocol for intel evaluation previously done by experienced State Dept. analysts, and obtained access to "raw" CIA intel reports. Eg., Bolton knew about Wilson report. Who do you think Bolton reported to? Do you think the prosecutor questioned him about this?

Drowned out by massive rw obfuscation last few days is obvious/serious implication of conspiracy in this Wilson affair. Cheney knew of report. Did he perjure himself denying it? Libby the same, along w/several other players shuttled in/out of key agencies at this time.

to conduct a background check on them to see if they were ever covert.

Right... Good luck w/that one. I'm very interested to see how GWB admin attempting to skate on this with technicalities will play. I sense not so well. Fitzgerald has reputation of a very competant bulldog, and all indications are he's been quite thorough.

Let the good times roll.

Posted by: JDM at July 16, 2005 3:04 AM

This whole thing is like watching one of those slasher films where all the victims keep doing stupid things that get them killed. As far as I'm concerned, anybody in the White House who talks to reporters ought to be canned. If they didn't have so many leaks, maybe the reporters would go find real news, instead of conducting their own private political wars.

I'd fire anybody called "Scooter" just on that ground alone, and double for that stupid letter he wrote to Miller in jail. The New York Times deserves to look like an idiot for demanding an investigation in the first place, and Miller deserves to repeat her time in jail for putting everybody through all this, when she can't even remember who told her Wilson's wife's name! If somebody get indicted now, it'll be for something other than the original accusation.

And we thought Whitewater was a waste of time

Posted by: AST at October 18, 2005 2:46 AM
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