Plame affair legal questions

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Main article: Plame affair

Main article: Plame affair criminal investigation

Plame affair legal questions are points of law and legal issues relating to the Plame affair commonly debated by members of the media, the public, and other people directly or indirectly involved in that controversy.

There are many legal issues and questions raised pursuant to allegations of criminal activity by Karl Rove, Lewis Libby, and perhaps other administration officials who may or may not be vulnerable to federal criminal prosecution for possibly violating federal laws relating to their involvement in the disclosure of Plame's identity; the alleged crimes may involve perjury, conspiracy, and obstruction of justice. U.S. Constitutional (First Amendment} issues relate to subpoenas issued to members of the press (the so-called Fourth Estate).

Contents 1 State Department briefing 2 Intelligence Identities Protection Act 2.1 Amicus Curiae brief filed by news media organizations 3 Espionage Act 4 Title 18, Section 641: Theft of Government Property 5 Conspiracy to Impede or Injure Officer 6 The Classified Information Nondisclosure Agreement 7 Other laws and precedents 8 Responses to the press subpoenas 9 Notes 10 Additional references 11 External links

[edit] State Department briefing

A New York Times story of 16 July 2005 suggested that the Special Counsel grand jury has questioned whether a particular secret State Department briefing which named Plame in connection to Wilson may have been the source of Rove's information.^[1] Colin Powell was photographed carrying the briefing during a visit to Africa, in the company of the President, in the days following the 6 July 2003 publication of Wilson's Op-Ed piece. (According to Time, Powell received the briefing, dated 10 June 2003, nearly a month later on 7 July 2003.)

The Wall Street Journal reported on 19 July 2005 that the briefing "made clear that information identifying an agent and her role in her husband's intelligence-gathering mission was sensitive and shouldn't be shared."^[2] Specifically, the briefing marked Valerie Wilson's name and CIA responsibilities as "snf", for "secret no foreign", meaning the information was so sensitive it could not be shared even with allied foreign security agencies such as Britain's MI6.^[3]

[edit] Intelligence Identities Protection Act

Much of the media attention has focused on whether one or more senior officials violated the Intelligence Identities Protection Act of 1982 (50 USC 421-426). (See Intelligence Identities Protection Act for the full text of this act.) However, proving a violation of the Intelligence Identities Protection Act involves several elements which may be difficult to establish in this case. Some legal pundits felt that Rove was unlikely to have been in violation of the narrowly-worded Intelligence Identities Protection Act &mdash.

In order to violate the Intelligence Identities Protection Act, one must expose the identity of a "covert agent." A covert agent is one who is "serving outside the United States or has within the last five years served outside the United States" (§ 426[4][a][ii]).^[4] Whereas, prior to July 14, 2003, when Novak's column outing her as a "CIA operative" was published, Plame had not been posted or stationed overseas in the preceding five years, during that period, she had '"served" overseas.

Further information: Valerie Plame#Career

In his book The Politics of Truth, Joseph C. Wilson states that he and Valerie Plame, then his future wife, both returned from their respective overseas assignments in June 1997, and that, after June 1997, neither he nor Plame was stationed overseas. But this information still allows the possibility that Mrs. Wilson served overseas after June 1997, which she did when she traveled on behalf of the CIA to investigate matters relating to weapons of mass destruction. After the publication of Novak's column, neither Wilson nor his wife has commented on any details pertaining to her CIA service, but Wilson responded to a reporter's question that "the CIA obviously believes there was reason to believe a crime had been committed" because it referred the case to the Justice Department.^[5] That action implies that she may have traveled overseas undercover.

On July 14, 2005, in an interview with Wolf Blitzer, broadcast on CNN, Wilson stated:

My wife was not a clandestine officer the day that Bob Novak blew her identity.[6]

When Blitzer asked, "But she hadn't been a clandestine officer for some time before that?", Wilson responded:

That's not anything that I can talk about. And, indeed, I'll go back to what I said earlier, the CIA believed that a possible crime had been committed, and that's why they referred it to the Justice Department.

Wilson later claimed to the Associated Press what he had meant was something different than the way the comment was later covered in the press:

In an interview Friday, Wilson said his comment was meant to reflect that his wife lost her ability to be a covert agent because of the leak, not that she had stopped working for the CIA beforehand. His wife's 'ability to do the job she's been doing for close to 20 years ceased from the minute Novak's article appeared; she ceased being a clandestine officer,' he said.[7]

In December 2004, over a year after Novak blew her cover, pictures of Joe Wilson and his wife appeared in Vanity Fair.

Further information: Joseph C. Wilson

Further information: Valerie Plame

Many former CIA agents and other former government officials argue that regardless of whether she went overseas in the required time period, her "outing" as an intelligence official did harm national security by compromising her front company and every other CIA employee using that front.^{[citations needed]} Moreover, the disclosure sends a message to potential CIA agents and assets around the globe that the CIA could not guarantee that their identity would be protected if they chose to work undercover for the Agency or in cooperation with it.^{[citations needed]}

In order for one to be protected by the Intelligence Identities Protection Act, it must be a fact that the U.S. government "is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States."^{[citation needed]} In debating this issue, some spokespeople for the Republican Party argue that if Plame worked at CIA's headquarters it could show that the CIA was not taking the required "affirmative measures."^{[citations needed]} Yet, in their letter presented to the U.S. Senate investigating the Plame affair, former CIA officer Larry C. Johnson, joined by ten other former CIA and DIA officers and analysts, strongly disagree:

These comments reveal an astonishing ignorance of the intelligence community and the role of cover. The fact is that there are thousands of U.S. intelligence officers who 'work at a desk' in the Washington, D.C. area every day who are undercover. Some have official cover, and some have non-official cover. Both classes of cover must and should be protected."[8]

From their perspective, the fact that Plame worked for a CIA front corporation created and maintained at taxpayer's expense constitutes an affirmative measure to conceal her covert employment.

Johnson argues further that the debate over the legality of the leak functions as a red herring, distracting the public from the direct harms to national security caused by the leak:

What is so despicable about all of this is that the conservative movement is now serving as apologists for political operatives who have destroyed an intelligence network and at least one case officer's distinguished career. The new standard for the Republican National Committee--Karl Rove didn't commit a crime. Boy, there's a slogan to run on, "At Least I Wasn't Indicted."[9]

[edit] Amicus Curiae brief filed by news media organizations

On March 23, 2005, 36 news organizations, including ABC, NBC, CBS, CNN, AP, Newsweek, Reuters America, the Washington Post and the Tribune Company, filed a friend-of-the-court brief in the U.S. Court of Appeals in Washington.^[10] In this brief these organizations contend that there is "serious doubt" that there was a violation of the Intelligence Identities Protection Act because of unsubstantiated news reports that Valerie Plame didn't meet the criteria of a "covert" agent and that her status as a CIA agent was known to both the Russian and Cuban intelligence operations prior to the Novak article.

Page ten, paragraph two, of the Amici Curiae Brief filed by the 36 major news organizations cites Robert Novak's report that he called the C.I.A. to determine whether Valerie Plame is an agency employee and received confirmation that she was.^[11] If Robert Novak's report is true and if that information was classified, Novak did not have the security clearance required to receive that information. By confirming this information to Robert Novak. it would appear that the C.I.A. failed to protect her identify as required by the statutes to prosecute someone for violating the Intelligence Identities Protection Act.^{[citation needed]}

Supporters of Rove, including many Republicans, assert that he has testified truthfully, and they interpret the law to favor Rove's account of ignorance as to Plame's specific CIA status. Rove is believed to have agreed to testify to the grand jury in October 2005 with the understanding that his testimony would not free him from possible legal charges.^{[citations needed]}

[edit] Espionage Act

There is precedent for prosecuting a leak under the Espionage Act. In United States v. Morison, Samuel Loring Morison was convicted of espionage for leaking classified surveillance photos of a Soviet aircraft carrier to Jane's Defense Weekly. The court specifically found that there is no need under this law to show any "evil purpose." Morison unsuccessfully argued that he was trying to help the media avoid incorrect reporting on an alleged Soviet military buildup.^[12]

In 2003, Sandy Berger, former Clinton administration National Security Advisor, removed classified documents from a National Archives reading room to prepare for his testimony before the 9/11 Commission.^{[citations needed]} Even though no classified information leaked as a result, he pled guilty to violating the Espionage Act in mishandling the documents and his security clearance was suspended for 3 years.^{[citations needed]}

Title 18 of the United States Code, 18 USC 794 states:

Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates, or attempts to elicit any information with respect to the movement, numbers, description, condition, or disposition of any of the Armed Forces, ships, aircraft, or war materials of the United States, or with respect to the plans or conduct, or supposed plans or conduct of any naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense, which might be useful to the enemy, shall be punished by death or by imprisonment for any term of years or for life.[13]

On October 28, 2005, Lewis Libby resigned from his position in the White House. This followed immediately after he was indicted on five criminal felony charges including obstruction of justice, making false statements and perjury. Special Counsel Patrick Fitzgerald indicated that he considered the charges grave, as they represented a fundamental attack on the legal system. Also mentioned in the indictment, but not charged was "Libby was obligated by applicable laws and regulations, including Title 18, United States Code, Section 793," which is the Espionage Act.^[14][15]

In his news conference on the indictiment of Lewis Libby, Fitzgerald further emphasized the presumption of Libby's innocence pending his (January 2007) court trial and explained the parameters of the Grand Jury investigation into the leak:

FITZGERALD: I will say this: Mr. Libby is presumed innocent. He would not be guilty unless and until a jury of 12 people came back and returned a verdict saying so. But if what we allege in the indictment is true, then what is charged is a very, very serious crime that will vindicate the public interest in finding out what happened here. QUESTION: Mr. Fitzgerald, do you have evidence that the vice president of the United States, one of Mr. Libby's original sources for this information, encouraged him to leak it or encouraged him to lie about leaking? FITZGERALD: I'm not making allegations about anyone not charged in the indictment. Now, let me back up, because I know what that sounds like to people if they're sitting at home. We don't talk about people that are not charged with a crime in the indictment. FITZGERALD: I would say that about anyone in this room who has nothing to do with the offenses. We make no allegation that the vice president committed any criminal act. We make no allegation that any other people who provided or discussed with Mr. Libby committed any criminal act. But as to any person you asked me a question about other than Mr. Libby, I'm not going to comment on anything. Please don't take that as any indication that someone has done something wrong. That's a standard practice. If you followed me in Chicago, I say that a thousand times a year. And we just don't comment on people because we could start telling, "Well, this person did nothing wrong, this person did nothing wrong," and then if we stop commenting, then you'll start jumping to conclusions. So please take no more. QUESTION: For all the sand thrown in your eyes, it sounds like you do know the identity of the leaker. There's a reference to a senior official at the White House, Official A [later (in Sept. 2006) revealed publicly as Richard Armitage, former Deputy Assistant Secretary of State] who had a discussion with Robert Novak about Joe Wilson's wife. QUESTION: Can you explain why that official was not charged? FITZGERALD: I'll explain this: I know that people want to know whatever it is that we know, and they're probably sitting at home with the TV thinking, "[I want] to jump through the TV, grab him by his collar and tell him to tell us everything they figured out over the last two years." We just can't do that. It's not because we enjoy holding back information from you; that's the law. And one of the things we do with a grand jury is we gather information. And the explicit requirement is if we're not going to charge someone with a crime; if we decide that a person did not commit a crime, we cannot prove a crime, doesn't merit prosecution, we do not stand up and say, "We gathered all this information on the commitment that we're going to follow the rules of grand jury secrecy, which say we don't talk about people not charged with a crime, and then at the end say, well, it's a little inconvenient not to give answers out, so I'll give it out anyway." FITZGERALD: I can't give you answers on what we know and don't know, other than what's charged in the indictment. It's not because I enjoy being in that position. It's because the law is that way. I actually think the law should be that way. We can't talk about information not contained in the four corners of the indictment. (Italics added)[16]

[edit] Title 18, Section 641: Theft of Government Property

The 1985 Morison case also established that Title 18, Section 641 of the United States Code could apply to a leak of information. This law prohibits the theft or conversion of government records for non-governmental use. In addition to espionage, Morison was convicted of breaking this law. The court found that an intangible (classified information) can be covered by the law, even where First Amendment issues may be implicated.^{[citations needed]}

In 2002, the Bush administration also successfully used this law to convict Jonathan Randal for leaking to the media non-classified information about the DEA.^{[citation needed][17]}

Randal was a Drug Enforcement Agency analyst convicted of leaking confidential files on Lord Ashcroft to London media.^{[citation needed]} Ashcroft is a contributor to American and British conservative causes who had been investigated by the DEA.^{[citation needed]} The files related to investigations into drug trafficking and money laundering in Belize and supposedly included Ashcroft's name.^{[citation needed]} In a statement to Randal, United States District Court Judge Richard Story writes:

Anything that would affect the security of officers and of the operations of the agency would be of tremendous concern, I think, to any law-abiding citizen in this country.

If convicted on all counts, Randel could have faced 500 years in a federal prison.^{[citation needed]} Because Randal made a deal to plead guilty to violating section 641, all of the other counts were dropped.^{[citation needed]} He was sentenced to a year of imprisonment and three years of probation.^[18]

These cases may be seen as setting precedent for the prosecution of similar leaks.^{[citation needed]} In particular, the cases established that confidential information can be government property, and leaking it qualifies as theft of the information.^{[citation needed]}

Karl Rove is likely to face greater consequences than Randel if convicted for violating Section 641.^{[citation needed]} Randel leaked sensitive but not secret information about DEA files that were unlikely to affect the national security of the United States, though it may have been embarrassing to an influential contributor.^{[citation needed]} Rove may have leaked the identity of a CIA agent, an expert on weapons of mass destruction, during a time when the United States was at war based on a potential threat to its security from such weapons.^{[citation needed]}John W. Dean, former counsel to President Richard Nixon and a prominent figure in the Watergate investigation, argues in his column at FindLaw that Rove is likely to have violated Title 18, Section 641, which prohibits the theft or conversion of government records for non-governmental use.^[19] Dean also argues that federal conspiracy and fraud statutes may apply in this case:

If two federal government employees agree to undertake actions that are not within the scope of their employment, they can be found guilty of defrauding the U.S. by depriving it of the "faithful and honest services of its employee."

[edit] Conspiracy to Impede or Injure Officer

Dean and other observers note that the Federal Conspiracy statues are quite broad, and include:

If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.

Thus, if any person makes any agreement with any other person to disclose any information that would have hindered any agent of the CIA (including but not only Valerie Plame) or any other government official from performing his or her duty, or injuring such an officer for having done his or her duty, then that person or those persons could be charged with the felony of conspiracy.

[edit] The Classified Information Nondisclosure Agreement

Cooper's thus far unrefuted testimony suggests Rove may have violated the "Classified Information Nondisclosure Agreement" (Form SF-312),^[20] which he signed as a condition of employment.^{[citation needed]} No charges have been filed against Rove in relation to Form SF-312, however, and no evidence has yet been presented that implicates that Rove committed any crime related to Form SF-312.^{[citations needed]}

Form SF-312 prohibits confirming or repeating classified information to unauthorized individuals, even if that information is already leaked.^{[citation needed]} Thus, Form SF-312 is a vehicle for federal employee compliance with Executive Order 13292.^{[citation needed]} Executive orders are not laws, but violation typically results in dismissal.^{[citations needed]} Relevant passages of the agreement read,

I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation. . . . . I have been advised that any breach of this Agreement may result in the termination of any security clearances I hold; removal from any position of special confidence and trust requiring such clearances; or the termination of my employment or other relationships with the Departments or Agencies that granted my security clearance or clearances. In addition, I have been advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United States criminal laws, including the provisions of Sections 641, 793, 794, 798, *952 and 1924, Title 18, United States Code, * the provisions of Section 783(b), Title 50, United States Code, and the provisions of the Intelligence Identities Protection Act of 1982.

The briefing booklet distributed with that form also states:

Before confirming the accuracy of what appears in the public source, the signer of the SF 312 must confirm through an authorized official that the information has, in fact, been declassified. If it has not, confirmation of its accuracy is also an unauthorized disclosure.[21]

[edit] Other laws and precedents

The Los Angeles Times reports that Rove pursued Wilson so aggressively because "He's a Democrat." Although it is not at all clear whether Joseph Wilson is protected by federal civil service laws, notably the post-Watergate Civil Service Reform Act of 1978, retaliation against an employee based upon political affiliation is generally illegal.^[22]

Paragraph 1.f of the Libby indictment asserts Plame's status as a CIA employee was classified at the time it was leaked. An individual's failure to protect classified information, criminal or not, is often grounds for the revocation of their security clearance.^[23]

[edit] Responses to the press subpoenas

The unusual circumstances of this case led a number of media organizations to file a friend-of-the-court (amicus curiae) brief on behalf of the journalists who received subpoenas as a result of the Fitzgerald Grand Jury investigation (Matthew Cooper, Judith Miller, and Time Inc.). In this brief, lawyers representing 36 media organizations, including ABC News, AP, CNN, CBS News, WSJ, Fox News, USA Today, NBC News, Newsweek, and Reuters, argued to the court that "there exists ample evidence in the public record to cast serious doubt as to whether a crime has even been committed under the Intelligence Protection Act in the investigation underlying the attempts to secure testimony from Miller and Cooper." ^[24] Victoria Toensing, the principal author of the amicus curiae brief, also contended that Ms. Plame did not have a cover to blow, citing a July 23, 2004 article in the Washington Times which argued that Valerie Plame's status as a previous undercover CIA agent may have been known to Russian and Cuban intelligence operations prior to the Novak article as a result of earlier compromises of CIA agents' identity by Aldrich Ames.^{[citations needed]} Ms. Toensing's argument been much disputed, most notably by Larry C. Johnson and other former CIA agents in their U.S. Senate investigation testimony already cited.

Further information: Valerie Plame#Career

Perhaps because Toensing's brief does not address issues relating to (possible) perjury and obstruction of justice charges, nor many other possible violations associated with the disclosure of classified information, many of these same news outlets continue to suggest the possibility that Rove may have violated the law.^{[citations needed]} (The amicus curiae brief predated the publication of pertinent internal Time electronic correspondence and Cooper's own sworn testimony and published account of Rove's role.^{[citation needed]}) Although some reporters speculate that Rove's (future) legal defense might be built upon his own sworn testimony that he was ignorant of Plame's protected status at the time he outed her as a CIA employee, most agree that if it could be proven that he had heard of her CIA covert status or if he knew material was classified when he spoke to journalists, Rove could face far more serious charges.^{[citations needed]}

[edit] Notes

[edit] Additional references

• Jeralyn E. Merritt, J.D. Valerie Plame Leak Case Searchable archive at TalkLeft: The Politics of Crime: The Online Magazine with Liberal coverage of crime-related political and injustice news (blog).

[edit] External links

CrimeLynx: Legal Resource Center for the Criminal Defense Practioner and Criminal Justice Center for Professionals and the Community (website founded by Jeralyn E. Merritt)