Plame affair

Legal questions

There are many questions surrounding the allegations of illegality by Karl Rove, Lewis Libby, and perhaps other administration officials. These officials are potentially vulnerable under a number of federal laws relating to disclosure of Plame's identity, along with laws against perjury, conspiracy, and obstruction of justice.

Related Topics:
Perjury - Conspiracy - Obstruction of justice

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

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 were subpoenaed (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." http://www.bakerlaw.com/files/tbl_s10News/FileUpload44/10159/Amici%20Brief%20032305%20(Final).PDF Victoria Toensing, the principal author of the amicus brief, also contended that Ms. Plame didn't have a cover to blow, citing a July 23, 2004 article in the Washington Times which argued that Valerie Plame's status as an undercover CIA agent may have been known to Russian and Cuban intelligence operations prior to the Novak article.

Related Topics:
Amicus curiae - Victoria Toensing - Washington Times

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Perhaps because Toensing's brief did 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. (The amicus brief predated the publication of internal Time email, as well as Cooper's own testimony and published account of Rove's role.) Although some reporters speculate that Rove's (future) legal defense might be built upon 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 knew material was classified when he spoke to journalists, Rove could face far more serious charges.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

A New York Times story of 16 July 2005 suggested that the Independent 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.http://www.nytimes.com/2005/07/16/politics/16memo.html. 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.)

Related Topics:
16 July - 2005 - Colin Powell - 6 July - 2003 - 10 June 2003 - 7 July

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

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."http://users1.wsj.com/lmda/do/checkLogin?a=t&d=wsj&sd=users1&url=http%3A%2F%2Fonline.wsj.com%2Farticle_print%2F0%2C%2CSB112170178721288385%2C00.html 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.http://www.americanchronicle.com/articles/viewArticle.asp?articleID=1366

Related Topics:
19 July - 2005 - MI6

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Although some legal pundits felt that Rove was unlikely to have been in violation of the narrowly-worded Intelligence Identities And Protection Act — in fact, the CIA's original "crimes report" submitted to Fitzgerald apparently did not mention the Acthttp://www.americanchronicle.com/articles/viewArticle.asp?articleID=1366— many others argue that by compromising Valerie Plame's position, Rove may have broken one or more federal laws. According to John W. Dean, a FindLaw columnist and former presidential counsel, Rove is likely to have violated Title 18, Section 641 of the United States Code, which prohibits the theft or conversion of government records for non-governmental use.

Related Topics:
Intelligence Identities And Protection Act - John W. Dean - FindLaw - United States Code - Theft

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

http://writ.news.findlaw.com/dean/20050715.html In 2003, this law was successfully used to convict John Randel, a Drug Enforcement Agency analyst, for leaking to the London media a name of someone that he believed the DEA was not paying enough attention to in a money laundering investigation (Lord Ashcroft) . In a statement to Randel, United States District Court Judge Richard Story wrote, "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." Having pled guilty, Randel's sentence was reduced from 500 years in a federal prison, to a year of imprisonment and three years of probation.

Related Topics:
2003 - John Randel - Drug Enforcement Agency - London - Lord Ashcroft - District Court - Richard Story - Federal prison - Probation

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

This may be seen by Bush's political opponents as setting precedent for the prosecution of similar leaks, and Karl Rove is likely to face greater consequences than Randel if indicted for violating Section 641. Whereas Randel leaked sensitive information about an individual whose name could be found in the DEA files, unlikely to affect the national security of the United States, it is argued that Rove may have leaked the identity of a CIA agent, an expert on weapons of mass destruction, at a time when the United States had gone to war based on the perceived threat from such weapons.

Related Topics:
Precedent - National security - Weapons of mass destruction

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

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 ' 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.

Related Topics:
Media - Intelligence Identities Protection Act - 1982

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

In order to violate the Intelligence Identities Protection Act, one must expose the identity of a "covert agent." To be considered a covert agent, one must be "serving outside the United States or has within the last five years served outside the United States." § 426(4)(a)(ii). (See and for the definition of covert agent.) Whether Valerie Plame traveled outside the US is not known (as of Aug. 1, 2005).

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

In his book The Politics of Truth, Joe Wilson wrote that he and Plame, his then future wife, both returned from overseas assignments in June 1997. Wilson's book indicates neither he nor Plame was again stationed overseas. Novak's article was published more than 6 years later. http://www.usatoday.com/news/washington/2005-07-14-cia-wilson_x.htm Neither Wilson nor Plame will say whether she was stationed overseas since 1997, 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.http://www.thedesertsun.com/apps/pbcs.dll/article?Date=20050714&Category=NEWS11&ArtNo=507140337&SectionCat=&Template=printart, implying that she may have traveled overseas undercover. On July 14, 2004 Joe Wilson was on the Wolf Blitzer Show and stated "My wife was not a clandestine officer the day that Bob Novak blew her identity." http://transcripts.cnn.com/TRANSCRIPTS/0507/14/wbr.01.html This was in response to the pictures of Joe Wilson and his wife taken in Vanity magazine, a month earlier. 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 harmed national security by compromising the front company and every other CIA employee using that front, 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.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

In order for one to be protected by the Intelligence Identities Protection Act, it must be proven that the U.S. government "is taking affirmative measures to conceal such covert agent?s intelligence relationship to the United States." Republicans have argued, in their talking points on the issue, that if Plame worked at CIA's headquarters it could show that the CIA was not taking the required "affirmative measures." Former CIA officer Larry C. Johnson has strongly disagreed, pointing out that Plame worked for a CIA front corporation created and maintained taxpayer's expense, which would constitute an affirmative measure to conceal her covert employment. Johnson and ten other former CIA and DIA officers and analysts wrote a letter disputing the Republican's argument, saying:

Related Topics:
Republican - Larry C. Johnson

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

:"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." Source:http://www.fas.org/irp/news/2005/07/intlet.pdf

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Johnson argues 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," he writes, "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'."http://noquarter.typepad.com/my_weblog/2005/07/more_lies_from_.html

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

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.http://www.bakerlaw.com/files/tbl_s10News/FileUpload44/10159/Amici%20Brief%20032305%20(Final).PDF In this brief these news organizations contend that there is "serious doubt" that there was a violation of the Intelligence Identities Protection Act since Valerie Plame's didn't meet the criteria of a "covert" agent and her status as a CIA agent was known to both the Russian and Cuban intelligence operations prior to the Novak article.

Related Topics:
March 23 - 2005 - Intelligence Identities Protection Act

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Supporters of Rove, including many Republicans, assert that he has testified truthfully, and 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.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Espionage Act

There is precedent for prosecuting a leak under the Espionage Act. In United States v. Morison, Morison was convicted of espionage for leaking classified surveillance photos of a Soviet aircraft carrier to Jane's Defence Weekly. The court specifically found that there in 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.

Related Topics:
Espionage Act - United States v. Morison - Jane's Defence Weekly

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

http://www.mtsu.edu/%7Elburriss/morison.html

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

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. 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.

Related Topics:
Sandy Berger - Clinton administration - National Security Advisor - National Archives - 9/11 Commission

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

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.

Related Topics:
1985 - United States Code - Theft - First Amendment

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

In 2002, the Bush administration also successfully used this law to convict Jonathan Randel for leaking to the media non-classified information about the Drug Enforcement Administration

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Randel was a Drug Enforcement Agency analyst convicted of leaking confidential files on Lord Michael Ashcroft to London media. Lord Ashcroft is a contributor to American and British conservative causes who allegedly had been investigated by the DEA. The files related to investigations into drug trafficking and money laundering in Belize and supposedly included Ashcroft's name. In a statement to Randel, United States District Court Judge Richard Story wrote, "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. Because Randel made a deal to plead guilty to violating section 641, all of the other counts were dropped. He was sentenced to a year of imprisonment and three years of probation.http://writ.news.findlaw.com/dean/20050715.html

Related Topics:
Drug Enforcement Agency - Lord Michael Ashcroft - London - Drug trafficking - Money laundering - Belize - District Court - Richard Story - Federal prison - Probation

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

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

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Karl Rove is likely to face greater consequences than Randel if convicted for violating Section 641. 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. 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.

Related Topics:
DEA - National security - CIA - Weapons of mass destruction

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

John Dean has also argued 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," he argues, "they can be found guilty of defrauding the U.S. by depriving it of the 'faithful and honest services of its employee.'"

Related Topics:
John Dean - Conspiracy - Fraud

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Conspiracy to Impede or Injure Officer

Dean and other observers have noted 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.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Which means that if any agreement was made to disclose any information which would have hindered any agent of the CIA, not merely Valerie Plame, or any other government official, from performing their duty, or injuring such an officer for having done their duty - then felony charges of conspiracy can be brought.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

The Classified Information Nondisclosure Agreement

Cooper's thus far unrefuted testimony suggests Rove violated the "Classified Information Nondisclosure Agreement" (Form SF-312 http://www.dss.mil/files/pdf/new_sf312.pdf), which he signed as a condition of employment. However, no charges have been filed against Rove in relation to Form SF-312, and no evidence has yet been presented that implicates that Rove committed any crime related to Form SF-312.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

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

Related Topics:
Executive Order 13292 - Executive orders

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

: 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.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

In addition, the briefing booklet distributed with that form 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.http://www.fas.org/sgp/isoo/sf312.html

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

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.

Related Topics:
Los Angeles Times - Civil Service Reform Act - 1978

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

http://www.latimes.com/news/nationworld/nation/la-na-leak18jul18,0,4779848.story?coll=la-home-headlines

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

If Plame's identity as a CIA employee was in fact classified -- and a CIA criminal referral combined with a long running grand jury investigation would suggest so -- then failure to protect classified information, criminal or not, is often grounds for the revocation of one's security clearance.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~