Plamegate: Will New Ruling Spell Trouble?
Gandalf Grey
Will the Precedent Set by the Indictment in a Pentagon Leak Case Spell
Trouble for Those Who Leaked Valerie Plame's Identity to the Press?
By LOUIS KLAREVAS
----
Monday, Aug. 15, 2005
Tomorrow, August 16, a former Pentagon official and two former employees of
a pro-Israel lobby organization, the American-Israeli Political Action
Committee (AIPAC), are scheduled to be arraigned in a federal district
courthouse in Alexandria, Virginia. All three are being charged by U.S.
Attorney Paul McNulty with violating a little known provision of the
Espionage Act.This provision makes it a crime to conspire to communicate
classified information without proper authorization.
Meanwhile, across the Potomac River in Washington, D.C., Special Prosecutor
Patrick Fitzgerald will be continuing his grand jury investigation.
Fitzgerald has been making headlines with his probe into whether senior Bush
administration officials who leaked classified information regarding the
identity of covert CIA operative Valerie Plame (a.k.a. Valerie Wilson) to
columnist Robert Novak and others in the press committed a crime.
So far, defenders of the White House have been quick to point out that Karl
Rove and others who appear, from information so far made public, to have
played a role in disclosing Plame's identity have not violated the stringent
thresholds of the Intelligence Identities Protection Act. That Act makes it
a crime to publicly disclose the identity of a secret agent in certain
circumstances.
But those circumstances may not apply in the Plame case - as FindLaw
columnist John Dean has explained. The IIPA sets a high threshold for
prosecution, including proving beyond a reasonable doubt that the accused
knew the person being outed had "covert" status. This, in turn, requires a
variety of conditions relating to "covertness" to first be established. (For
example, the prosecution must prove that the agent had served outside the
U.S. within the past five years).
In contrast, the Espionage Act requires no such proof of "covert" status.
For this and other reasons, it can be construed more broadly than the IIPA.
I will argue below that, if McNulty's interpretation of the Espionage Act
serves as a guide, then the Plame leak, too, could easily be construed as a
violation of the Act.
And that, of course, could spell legal trouble for those in the Bush
administration who outed Plame, for even if Intelligence Identities
Protection Act charges based on the Plame leak won't stick, other charges
well may.
The Allegations of the Indictment in United States v. Franklin
Here are the alleged facts of the Virginia Espionage Act case, as set forth
in McNulty's indictment:
On the morning of February 12, 2003, Lawrence Franklin, the Iranian desk
officer working in the Office of the Secretary of Defense, met with Steven
Rosen and Keith Weissman. Both Rosen and Weissman worked at AIPAC - Rosen as
the director of foreign policy issues and Weissman as a senior Middle East
analyst.
Over breakfast, Franklin allegedly provided to Rosen and Weissman classified
details from a draft Pentagon policy document that he was helping prepare.
According to the indictment, the disclosure was to be one in a series of
leaks of national security-related information pertaining to topics such as
attacks on U.S. forces in Iraq and plotting by Iranian operatives against
Israeli agents.
Allegedly, what Franklin leaked to Rosen and Weissman was promptly relayed
to Israeli Embassy officials, Washington think tank analysts, and
journalists. In one conversation, Rosen even allegedly boasted to a
journalist, "I'm not supposed to know this."
The indictment is able to provide details like this because, unbeknownst to
the troika, the U.S. Attorney's office had surveillance in place throughout
the course of the alleged conspiracy. Accordingly, it appears to have
amassed mounds of evidence against the defendants.
The Charges in United States v. Franklin: Conspiracy to Violate the
Espionage Act
The indictment charges against all three men with conspiracy to communicate
national defense information to persons not entitled to receive it in
violation of 18 U.S.C. § 793(g) - a provision of the Espionage Act that
requires that at least one of the co-conspirators acts in a manner to
"effect the object of the conspiracy." (The "overt act" requirement is a
common feature of conspiracy law, designed to prevent mere conversations
from becoming the basis for criminal charges.)
To this end, the grand jury has also indicted Franklin on three counts of
violating 18 U.S.C. § 793(d), which makes it a crime for a person, "lawfully
having possession of, access to, control over, or being entrusted with . . .
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," to communicate it "to any person not
entitled to receive it." The indictment asserts that Franklin's disclosures
to Rosen, an American lobbyist, violated the Espionage Act. (Each violation
carries a prison term of up to ten years.)
In addition, Rosen has also been indicted on one count of violating 18
U.S.C. § 793(e), which makes it illegal for someone who is not authorized to
have access to classified national defense information to "willfully
retain," let alone "willfully communicate," such information.
The implication of the charge against Rosen is, strikingly, that any private
citizen who receives classified information, and then turns around and
discloses it to any other private citizen, is violating the Espionage Act.
United States v. Morison: A Federal Appeals Court Construes the Espionage
Act Broadly
The Espionage Act was primarily enacted to punish those who passed
classified information to agents of foreign governments. The most famous
prosecution under the Act was the trial of Ethel and Julius Rosenberg, who
were executed based on claims they acted treasonously.
In the mid-1980s, however, the Espionage Act was applied to a case in which
the relevant link was not to a spy, but to a journalist. More specifically,
the Act served as the basis for the prosecution of a former U.S. Navy
analyst, Samuel Morison, who mailed secret satellite photos to Jane's
Defence Weekly, a popular British military affairs magazine. Morison was
convicted of violating 18 U.S.C. § 793(d) and (e). (Morison was also
convicted of violating 18 U.S.C. § 641, which makes it a crime to purloin
and sell any U.S. government record or document without authorization).
On appeal, Morison asserted that his conviction could not stand because the
Espionage was intended to be applied only to cases of "classic spying and
espionage activity," in which the accused transmitted "national security
secrets to agents of foreign governments with intent to injure the United
States." In the words of the U.S. Court of Appeals for the Fourth Circuit,
Morison's defense was that he was not guilty because "he leaked to the
press; he did not transmit to a foreign government." The Fourth Circuit
roundly rejected his argument, pointing out that both statutes under which
Morison was convicted, by their plain language, apply to "whoever" has
access to national defense information: "The language of the two statutes
includes no limitation to spies or to 'an agentof a foreign government. . .
.' It covers 'anyone.' It is difficult to conceive of any language more
definite and clear."
The Court similarly rejected Morison's attempt at a First Amendment defense.
It rejected any contention that the Amendment "offers asylum under those
circumstances, if proven, merely because the transmittal was to a
representative of the press. The First Amendment, in the interest of
securing news or otherwise, does not "confer a license on either the
reporter or his news source to violate valid criminal laws. . . ."
The court refused to allow the defendant to "invoke the First Amendment as a
shield to immunize his act of thievery."
Morison also contested his conviction on grounds that two terms contained in
the Espionage Act - "related to national defense" and "willfully" - are
unconstitutionally vague.
During the trial, the district court judge had instructed the jury that in
order to prove that the purloined material "related to national defense,"
all that what necessary was to prove that material "would be potentially
damaging to the United States or might be useful to an enemy of the United
States" and the material was "not available to the general public." In the
appellate court's view, this was specific enough to avoid a vagueness
challenge.
To support it decision, the Fourth Circuit panel drew on the D.C. Circuit's
ruling in its 1983 opinion in Ellsberg v. Mitchell. There, the D.C. Circuit
opined, similarly, that national defense information could be broadly
defined to encompass any information whereby "there is a 'reasonable danger'
that revelation of the information in question would either enable a
sophisticated analyst to gain insights into the nation's
intelligence-gathering methods and capabilities or would disrupt diplomatic
relations with foreign governments."
By this standard, the Fourth Circuit concluded, the reconnaissance photos
Morison purloined and transmitted to the press were undeniably materials
"related to the national defense."
The Fourth Circuit also rejected the vagueness challenge to the word
"willfully" - a fairly common term used to describe the requisite criminal
intent in federal and state criminal laws. According to the Fourth Circuit,
it was sufficient, as the trial court instructed, to define an act as done
"willfully" if it is "done voluntarily and intentionally and with
thespecific intent to do something that the law forbids."
The court added that government employees - especially those with security
clearances - would know they were attempting to do something illegal; after
all, they were required to first familiarize themselves with the laws
pertaining to the disclosure of classified information before receiving
security clearances. For them, then, only proof of volition and intentional
conduct with respect to the leak would be needed.
Though Morison's conviction was upheld by the Fourth Circuit, President
Clinton later pardoned Morison.
Could This Precedent Lead to United States v. Rove?
Could the leak of Valerie Plame's identity as a CIA agent lead to similar
Espionage Act charges?
First, what about charges under 18 U.S.C. § 793(d)?
Robert Novak identified his sources as "two senior Administration
officials." Depending on their positions, they - or their own sources -
might have authorized access to Valerie Plame's identity, as the law
requires.
In addition, Plame's identity as a CIA agent would match another of the
law's requirements - that the leak disclose "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." In the Morison case, such information was defined as that
which raised "a 'reasonable danger' that revelation of the information in
question would either enable a sophisticated analyst to gain insights into
the nation's intelligence-gathering methods and capabilities or would
disrupt diplomatic relations with foreign governments."
Certainly, the identity of a CIA agent - particularly one who had worked
abroad, as Plame had - would fit the bill. And crucially, it would seem to
fit the bill whether or not that agent could fill the technical requirements
by which the IIPA narrowly defines "covert" status. As noted above, proof of
"covert" status simply is not required in an Espionage Act prosecution; the
Act's requirements are different.
There's little question Plame's identity was, at a minimum, sensitive,
national-security related information. No wonder, then, that a classified
State Department memo discussing Plame, which was in the possession of White
House staff during the week of the leak, stamped "Secret" around the
paragraph identifying Plame.
Finally if the leaker (or leakers) were calling up (or answering the calls
of) journalists to proffer this information, it should be easy to prove, as
the statute requires, that they "willfully communicate[d] . . . the same
[information] to any person not entitled to receive it."
Indeed, the rule from the Morison case, as readers will recall, is that it
will be especially easy to prove "willfulness" on the part of someone who,
by virtue of receiving a security clearance, had been educated in the law.
And as readers will also recall from the Morison case, journalists like
Novak and Matthew Cooper of Time, who lack security clearances and learned
the leaked information, were obviously "persons not entitled to receive"
that information.
But wait. There's more. According to Novak and Cooper, there was more than
one source in the Plame leak. That could translate into separate conspiracy
charges under 18 U.S.C. § 793(g), which could add to an already considerable
prison term.
For all these reasons, it would be wise for onlookers to remember, with
respect to the Valerie Plame investigation, that just as many roads may lead
to Rome, more than one may lead to jail for one who leaks national
security-related information, as the Plame leaker, or leakers, did.
--
NOTICE: This post contains copyrighted material the use of which has not
always been authorized by the copyright owner. I am making such material
available to advance understanding of
political, human rights, democracy, scientific, and social justice issues. I
believe this constitutes a 'fair use' of such copyrighted material as
provided for in section 107 of the US Copyright
Law. In accordance with Title 17 U.S.C. Section 107
"A little patience and we shall see the reign of witches pass over, their
spells dissolve, and the people recovering their true sight, restore their
government to its true principles. It is true that in the meantime we are
suffering deeply in spirit,
and incurring the horrors of a war and long oppressions of enormous public
debt. But if the game runs sometimes against us at home we must have
patience till luck turns, and then we shall have an opportunity of winning
back the principles
we have lost, for this is a game where principles are at stake."
--Thomas Jefferso
Truthseeker
Neocon cabal which took us to war in Iraq for Israel?:
http://www.warwithoutend.co.uk/zone0/viewtopic.php?t=38213
Cindy Sheehan was/is absolutely correct about PNAC Neocon cabal which
took the USA to war in Iraq for Israel:
Truthseeker
http://www.warwithoutend.co.uk/zone0/viewtopic.php?t=20366
http://nomorewarforisrael.blogspot.com
How Bush would gain from war with Iran
http://www.itszone.co.uk/zone0/viewtopic.php?p=180928#180928
Truthseeker
w w w . h a a r e t z . c o m
--------------------------------------------------------------------------------
Last update - 23:01 16/08/2005
AIPAC lobbyists, US analyst plead not guilty of disclosing classified
data
By Shmuel Rosner, Haaretz Correspondent and Reuters
A Pentagon analyst and two former officials of th American Israel
Public Affairs Committee (AIPAC), a pro-Israel lobbying group, pleaded
not guilty on Tuesday to charges of conspiring to obtain and disclose
classified national defense information.
Steven Rosen, 63, the former foreign policy director for AIPAC, and
AIPAC's former senior Middle East analyst, Keith Weissman, pleaded not
guilty to charges of conspiracy to communicate national defense
information provided by analyst Lawrence Franklin.
Rosen also pleaded not guilty to helping Franklin, 58, pass on written
classified information.
The three will be tried together on Jan. 3, 2006.
Assistant U.S. Attorney Kevin DiGregory said the total information at
issue in the case related to five documents. He did not give any
further details.
Rosen and Weissman, 53, are accused of disclosing the classified
information to some members of the media, a senior fellow at a
Washington think tank and at least three foreign government officials.
Franklin had been previously indicted on similar charges but had to
appear in court under a revised indictment. He repeated his plea of not
guilty to five counts of conspiring to communicate classified
information.
Franklin worked as an analyst on the Iran desk within the Office of the
Secretary of Defense at the time the government says he disclosed
classified information. His case was a reminder of another that
strained U.S. relations with close ally Israel- the 1985 arrest of U.S.
Navy analyst Jonathan Pollard, convicted of leaking information to the
Jewish state.
Franklin was charged with giving Rosen and Weissman- whom
AIPAC fired in April after defending their conduct last year-
top-secret information about potential attacks on U.S. forces in Iraq.
Franklin was also charged with giving classified information to an
unidentified diplomat, as part of an effort to advance his personal
foreign policy agenda, the indictment said.
According to the indictment, Franklin gave the diplomat classified
information related to a Middle Eastern country's activities in Iraq.
The indictment also charged that between August 2002 and June 2004,
Franklin gave the diplomat classified information relating to a weapons
test conducted by an unnamed Middle Eastern country.
Sources familiar with the investigation have said the diplomat was
Israeli.
U.S. District Judge T.S. Ellis ordered all three defendants to
surrender their passports and released them on bond but restricted
their travel.
Some of the charges faced by defendants carry penalties of up to 10
years in jail.
Lawyers for the men refused to comment after the arraignment outside
Washington.
When the indictment was returned earlier this month, Rosen's attorney
Abbe Lowell called the charges unjustified.
"We expect that the trial will show that this prosecution represents a
misguided attempt to criminalize the public's right to participate in
the political process," he said after the indictment was returned by a
federal grand jury on Aug. 4.
The Israeli diplomat in Washington who met several times with Franklin
has been identified by officials as Naor Gilon, head of the political
department at the Israeli Embassy in Washington and a specialist in
proliferation issues.
Israeli officials in Washington have said Gilon recently returned to
Israel as part of a scheduled rotation.
Truthseeker
http://www.whatreallyhappened.com/aipacledeen.html
SCANDAL OF THE LOBBY ZIONIST AIPAC: A PERFUME OF WATERGATE
Italian Parliament finger four forgers - Ahmad Chalabi , Francis
Brookes, Dewey Clarridge, and Michael Ledeen.
Original french at
http://news.stcom.net/modules.php?name=AvantGo&file=print&sid=1603
July 22, the democratic group of the American Senate held a capital
hearing to evaluate the extent of the political implications and of
safety caused by the disclosure with the press of the identity of the
secret agent Valerie Plame. They also examined the behavior of the
White House and president Bush which, while refusing to seek and
sanction the persons in charge, worsened the damage.
Hearing was chaired by the deputy Henry Waxman and the senator Byron
Dorgan, director of Senate Democratic Policy Committee. For Waxman, the
revelation of the identity of Limes constitutes not only "one treason
and an affront indefensible in its opposition and towards those which
work on the lines of face to protect America", but also "an
indefensible violation of our national safety". Deputy, which had voted
in favour of the invasion of Iraq on the basis of what proved to be
lies and half-truths as for the weapons of destruction massive (ADM)
Iraqi, clearly implied that the Plame scandal is also a history of lie
"Today, says it, we know the truth. I was misled, as the American
people were misled, and it is the husband of Valerie Plame, the
ambassador Joe Wilson, who contributed to restore the truth.
"Until now, the White House did not provide any credible proof of an
agreement of uranium sale between Iraq and Niger", which however
constituted one of the key parts of is saying Iraqi threat nuclear "It
seems rather than the advisers of the President launched a smear
campaign (...) We have only one partial information on what occurred in
the hours and the days which followed [ the publication of the article
of Wilson bringing back the conclusions of its mission to Niger ] (...)
but we know that a secret memorandum of the State Department exposing
the identity of Valerie [ Limes that Karl Rove, to advise nearest of
the President, spoke about the identity of Mrs. Wilson with the
chronicler Robert Novak and the journalist of the magazine Time Matthew
Cooper; and that Lewis Libby, head of cabinet of the office of the
vice-president, also spoke about Mrs. Wilson with at least a journalist
"According to Waxman, the White House gave a report on eleven escapes
on the subject.
Various former analysts of the services of information deposited in
front of the senators and all underlined at which point it is serious
to reveal the identity of a secret agent. That endangers not only the
agent, but all the network of people with whom it is in contact,
clandestinely, in foreign countries where the information is collected.
"the consequences are much more serious than I imagined it at the
beginning", declared the deputy John Conyers. Appointed the Louise
Slaughter asked the witnesses if they had already intended to say,
during their professional life, that the White House had revealed the
identity of a secret agent. Larry Johnson, former analyst with the CIA,
was categorical: "With large never! It is without precedent. "
The former officer of the military information (DIA) Patrick LANG
insisted on the importance of the factor confidence in the recruitment
of foreign citizens to become advisors of the CIA In the event of
escape, it is all their confidence towards the United States which is
blamed "When not only community of the information, but the elected
government (...) of the first country in the world decides,
deliberately and apparently for transitory political reasons and
without interest, to reveal the identity of a secret agent, the new one
makes the effect of a shock in the whole world (...)" One cannot make
confidence with the Americans", is said one never does it. "
Larry Johnson contradicted the assertions of the republican Party
according to which Plame was not really a clandestine agent since it
worked at the HQ of the CIA with Langley, or that it is it which had
organized the mission of her husband in Niger. These untrue assertions
were repeated by various republican members of Parliament.
For the former treating officer of the CIA Jim Marcinkowski, the
refusal of high persons in charge for the government to take their
responsabilities following this rupture for confidence, created large a
faintness with the power station "They played hide-and-seek with the
truth and to semantic plays for more than two years, at the expense of
the safety of the American people", he has said.
While were held these hearings, one learned in the New York Times that
the special prosecutor Patrick Fitzgerald considers the possibility of
accusing of perjury Karl Rove and Lewis Libby because of contradictions
in their testimonys and of obstruction of justice.
The White House hopelessly tries to bury the business of uranium native
of Niger
EIR learned from several sources in Washington that the White House
makes its possible to prevent three bodies of press from revealing the
origins of the falsified documents of the government native of Niger,
intended to make believe that Saddam Hussein sought to obtain
significant quantities of uranium native of Niger to produce nuclear
weapons. After having taken knowledge of these documents, appeared in
Italy at the end of 2001, Dick Cheney asked the information agencies to
check information, which was to lead to the mission of the Wilson
ambassador in Niger in February 2002.
A news service, a chain of American television and a newspaper have
each one surveyed into the origin of the forgeries. Last year, the
emission of CBS, "60 minutes", cancelled at the last minute the
diffusion of a special sequence on the business of uranium native of
Niger to cover the "scandal" which had just burst concerning the
military service of George W Bush. The two other media are about to
finish their investigations, and according to our sources, the White
House exerts pressures so that they extinguish the business.
In Italy, the Parliament comes to conclude a study on the origins and
the consequences from the forgeries, and according to certain sources,
the report/ratio mentions among the principal suspects Michael Ledeen,
Dewey Clarridge, Ahmed Chalabi and Francis Brookes.
Let us recall that Ledeen works like "consultant" near the service of
Italian information SISMI since long years (since the beginning of the
Eighties and the bursting of the scandal around the P2 cabin). To
December 2001, at the time where the documents natives of Niger were
transmitted to the SISMI, it went to Rome in company of Harold Rhode
and of Lawrence Franklin of the Pentagon, officially to meet Manucher
Ghorbanifar, large protagonist of the Business Iran-Countered. Franklin
is at the present time accused to have transmitted secret information
to the AIPAC like with a person in charge for the embassy of Israel.
The fact that Clarridge, Chalabi and Brookes (related to Iraqi National
Congress (Inc)), are mentioned is particularly interesting. With the
end of the year 2001, the tsar of the counter-terrorism of the White
House was the General (Cr) Wayne DOWNING. He proposed to take Clarridge
for assistant. Brookes came from Rendon Group, a cabinet of "public
relations" that the Pentagon engaged to promote Chalabi and the Inc.
Which is the role of the White House in these forgeries? Did the
government only exploit the information to arrive to its ends, or a
group of néo-conservative around Cheney it took part in their
manufacture? No one will not be astonished by the current efforts of
the White House to prevent this business from bursting at the great
day.