Evidence of Injury

I have, in an effort to reduce my intake of bile, mostly avoided reading Mark Kleiman since the election, but in the course of finding great humor in the New York Times’ sudden discovery – now that a legal defense is needed for one of its reporters – that the leak of Valerie Plame’s identity as a CIA “operative” may not have involved a crime after all, Tom Maguire points us (indirectly) to this Kleiman post from 2003 arguing that the disclosure may have involved a violation, and conspiracy to violate, a provision of the Espionage Act, 18 U.S.C. 793(d), which imposes stiff criminal penalties on the following:

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.

Now, the usual disclaimers apply about trying to construe this statute without having read the surrounding provisions or the caselaw construing it. But Kleiman, a non-lawyer, has raised this point, so let’s just stay with his analysis of the statutory text. Kleiman argues that a violation of this infrequently-used statute would be easy to prove in this case. Let’s walk through his reasoning:

[N]otice how much weaker the scienter requirement is under the Espionage Act than under the Intelligence Identities Protection Act: “reason to know” that the information “could be used” to the injury of the United States.

So far, so good; “reason to know” does indeed make it unnecessary to prove the actual knowledge or intention of the person making the disclosure, and instead focuses on objective facts that such person would be in a position to know, which is easier to prove.

It would be very hard to argue that the Plame disclosures weren’t of information that the disclosers had reason to know could be used to damage the United States.

This is where I think Kleiman is all wrong. The violation being urged here is, at least based on the public record as it stands, in the nature of a technical violation whose potential for harm required a certain degree of extrapolation – i.e., that her identity as a CIA operative some indeterminate number of years earlier was argued to be damaging mainly because of the precedent it set and the potential, still debated, of harm for sources who may have been known to associate with her. Assuming that the identity of a CIA agent is “information relating to the national defense” – I would think so, under common parlance, but there may be precedents under the statute to suggest a more limited reading of the term – it would not at all be difficult or unusual for a jury to determine that this was not “information . . . which . . . could be used to the injury of the United States or to the advantage of any foreign nation,” if under all the circumstances it appeared that Plame’s ties to undercover work had grown sufficiently stale that there was no longer anything resembling an active operation left to compromise.

Moreover, in a case brought under the Espionage Act the timing of Valerie Plame’s most recent foreign assignment and the vigor with which the CIA was keeping her identity under wraps would both be irrelevant.

Technically irrelevant, in the sense of not being a statutory requirement, as it is under the Intelligence Identities Protection Act. But you can’t seriously argue that it has nothing to do with whether her identity as a CIA employee would damage national security if exposed. Clearly, little if any damage could be done by disclosing that she was a Langley-based analyst. Equally clearly, damage could well be done if she had still been an active undercover agent. The extent to which she was still involved in things that could be damaging if her identity was exposed is, in fact, the crucial question in figuring whether any harm could reasonably be expected to befall the nation’s security from the disclosure.
There’s also the argument, of course, that potential harm to national security would be balanced against ways in which the disclosure could benefit national security; a statute with this sort of potential-harm requirement would presumably afford the defendants the chance to argue that the overall benefit rendered the potential for injury, on balance, trivial. Even though you could make the “it’s not theirs to decide” argument in response, the “reason to know” standard would seem to necessarily incorporate what the person would, in all the circumstances, have reason to believe would be the overall consequences.
Now, the main benefit of exposing Plame’s identity was obviously political – to defuse his attacks on Bush by demonstrating that Wilson was basically a hack who got the assignment through his wife – so I don’t think such a defense would be a real good fit here. Still, the damage caused by the charge that the president lied to the world about Saddam’s efforts to get uranium in Africa is damage that could go to the nation’s overall reputation – that was certainly an argument raised by many of Bush’s antagonists – and showing the problems with the charge could, I suppose, be argued to ameliorate that harm. As I said, I’m not endorsing that argument, but it does suggest yet another avenue of complication for Kleiman’s analysis.

Moreover, the fact of a prior disclosure, unless that disclosure had been so convincing and so widely publicized as to preclude the possibility that any additional damage would be done by repetition, would not be a defense.

Again, this seems obviously wrong. The existence of the B-2 “stealth bomber,” to pick a random example, is a fact of our security whose disclosure could harm our ability to conduct surprise attacks. Except for the fact that the bomber’s existence is not at all a secret. There are many areas of law that turn on disclosures of information, and the idea that something was not really much of a secret is a routine and obvious defense.
Anyway, at a minimum, Kleiman breezes past a whole battery of problems with using such a statute in a case where there may well be strong arguments on the facts that Plame had been out of the field too long for any of this to have any real-world impact.