The Espionage Act - at last! ?

http://bluemassgroup.typepad.com/blue_mass_group/2005/10/the_espionage_a.html

October 06, 2005
The Espionage Act - at last!

This story in the NY Times is, for the most part, similar to a number of other reports indicating that Karl Rove has been summoned back to the Novak-Plame-gate grand jury, and that it's possible that Judith Miller, Scooter Libby, and heaven knows who else may also be making return trips. Speculation is running rampant that indictments are in the offing, though no one knows who or when.

But buried pretty far down in the story is this remarkable passage:

Recently lawyers said that they believed the prosecutor may be applying new legal theories to bring charges in the case. One new approach appears to involve the possible use of Chapter 37 of the federal espionage and censorship law, which makes it a crime for anyone who "willfully communicates, delivers, transfers or causes to be communicated" to someone "not entitled to receive it" classified information relating the national defense matters. Under this broad statute, a government official or a private citizen who passed classified information to anyone else in or outside the government could potentially be charged with a felony, if they transferred the information to someone without a security clearance to receive it.

AHA!! Finally, someone in the mainstream media has picked up on the possibility that the impossibly narrow Intelligence Identities Protection Act of 1982 might not be the only statute in play here. As has been widely noted, it's very difficult to convict anyone under the IIPA - so difficult, in fact, that it's only happened once. The Espionage Act, in contrast, is written in much broader language, and lacks the IIPA's very demanding requirements with respect to what the defendant had to know in order to be found guilty. As I and others have noted before, it seems pretty straightforward to conclude that Karl Rove's actions (as described by Time reporter Matt Cooper) fit comfortably within the Espionage Act.

<snip>
If the sources in the NYT report are right (there is, of course, no indication who these unnamed "lawyers" are or how close they are to the case), it's a huge development. It has long seemed unlikely that an IIPA indictment would be possible, so for a while it seemed that the best Fitzgerald could do would be an ancillary charge like perjury, or possibly conspiracy. But the Espionage Act is the real thing: it would mean charging Rove (or whoever) with the crime of illegally disclosing Valerie Plame's status as a covert CIA operative. Think about it: Karl Rove charged with espionage. Couldn't happen to a more deserving guy.

popcorn,

This constitutional crisis will be worth the price of admision

:popcorn:

http://citizenspook.blogspot.com/2005/08/treasongate-controlling-law-part-2.html

Chapter 37

http://www.au.af.mil/au/awc/awcgate/law/espionage.htm

If members of Plame's network were killed as a result of the disclosure, which seems more than likely, that means:

Heaven knows the Mass forum here is less than robust.

got the Rosenburgs executed, wasn't it?

I have trouble seeing exactly what espionage was committed by Rove. Can someone help?

agent - monitoring the industrial flow of WMDs globally. The entire intel network was exposed, intentionally. Perhaps the passing on of the secret of the identity - resulting in a serious breach in national security (ironically exposing risk to preventing attack by WMD, in the name of protecting a lie about a threat of WMD used to sell a bogus war) - could be considered as passing on a state secret. Granted I haven't read the act, while you have - so my suggesting is simply tying the significance of the result of the leak as akin to the passing on of state secret - to the possible charge is simply speculative and could be far off base.

Just frustrates me that in the discussion and reporting of this story, so seldom is the key irony (and seriousness) of the story included - in terms of WHAT Plame did for the CIA and national security.

I think that the "Intelligence Identities Protection Act of 1982" was created precisely because the type of activity Rove is accused of was NOT already covered by the Espionage Act.

possible:

http://en.wikipedia.org/wiki/Plame_Affair

excerpt:

In fact, Brewster Jennings & Associates did exist, and proved to be an elaborately crafted CIA enterprise likely to have provided cover not only to Plame/Wilson but to other covert CIA operatives and contacts working abroad: subsequent articles in many publications <14><15><16><17> suggest that BJA, nominally an oil exploration firm, was in fact a CIA front company (now defunct) spying on Saudi and other interests across the Middle East.

Other than the use of the word "operative", there was nothing in the original article to suggest that Plame was engaged in covert activities. Novak later said a CIA source told him unofficially that Plame had been "an analyst, not in covert operations." The suggestion that Plame was a secret agent first appeared in an article by David Corn published by The Nation on July 16, 2003, two days after Novak's column. <18> Of course, because Plame's official cover was that she was working for a private company, Novak's identification of her as an Agency operative compromised both Plame's cover and the cover of all of the other covert operatives associated with that company. Larry Johnson wrote, "Robert Novak’s compromise of Valerie caused even more damage. It subsequently led to scrutiny of her cover company. This not only compromised her 'cover' company but potentially every individual overseas who had been in contact with that company or with her."<19>

...lots more with lots of links...

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x4994861

the real damage of the leaking. This is the big kahuna not oft spoke about.

is one thing; what section of the Espionage Act was violated?

and have to run to act - as I posted above - you are more familiar with the act than I - was speculating that perhaps the damage was a part of the issue - but if not germaine to the Act - then just another blind corner (though one that I wish the press coverage would include more often in its coverage of the story.)

If you get an answer to your question - please let me know - I don't have time to follow today - but find it very interesting and important.

The AIPAC case involves espionage. Even if Franklin was not charged under the Espionage Act, his actions were by all definitions what "espionage" is -- providing state secrets to people connected to and representing the interests of other countries.

The Plame case was referred by CI to the DoJ's counterintelligence unit. That has caused some confusion among some on DU. Counterintelligence can include espionage, but is not limited to it. Also, a few people are invested in the myth that Wilson has purposly avoided the counterintelligence part of the case, which is a clear sign that they either did not read, or did not comprehend, his book.

to that question is why I added a question mark to the subject line.
:shrug:

I'm not a lawyer. This analysis could be wrong. But it makes sense; the Espionage Act is more broadly worded than the IIPA, and thus, it seems, is simpler to find charges for.

So why haven't people been talking about it? Citizen Spook makes the ridiculous case that those who haven't been talking about it (he includes Joe Wilson :eyes: ) are necessarily complicity in it. (read here).

Here's a more reasoned analysis:



http://www.markarkleiman.com/archives/valerie_plame_/2005/07/the_plame_game_it_isnt_all_about_the_intelligence_identities_protection_act.php

Someone knowlegable in the law, please; how is this reasoning incorrect?

for further discussion

important thing about espionage, and what we need to be able to communicate clearly, is found in the connection between the neocon spy/AIPAC case, and the Plame case. They are, in fact, the same case. So while what Rove did is not espionage, and while Franklin was not charged under The Espionage Act, the entire episode -- which led to the war in Iraq and threatened to expand to Iran -- is tied to the relationship between a segment of unelected government officials and a foreign country.

and a foreign country."

thank you for illuminating this for me :think:

that very much helps me to understand this better

What does outing undercover operations fall under?

selfdelete

the death penalty, right?

have to worry about:

http://www.democracynow.org/article.pl?sid=05/06/30/1333214

http://www.thenation.com/docprint.mhtml?i=20050718&s=holtzman

U.S. War Crimes Act of 1996

Thursday, June 30th, 2005
Fmr. NY Congressmember Holtzman Calls For President Bush and His Senior Staff To Be Held Accountable for Abu Ghraib Torture

--------------------------------------------------------------------------------
In a newly-published article in The Nation http://www.thenation.com/docprint.mhtml?i=20050718&s=holtzman
former New York Congressmember Elizabeth Holtzman, who served on the committee that voted to impeach Richard Nixon calls on the public and the press to demand President Bush and his senior White House staff be held accountable for the torture of Abu Ghraib and be prosecuted under the 1996 War Crime Act.
Well, The Nation magazine is publishing an article in its July 18th issue titled "Torture and Accountability." ** In the article, the author, former Congressmember Elizabeth Holtzman, writes that there is precedent to hold U.S officials accountable for wrongdoing. She points to public pressure that forced Congress to end the Vietnam war, relentless press coverage of the Watergate scandal which ultimately lead to Nixon's resignation and public demands that led to the independent 9/11 commission.

<snip>

And it seems to me that with the terrible scandal, Abu Ghraib, that we need -- we can’t, as they tried in Watergate to do, cut off the investigation at the small fry, at the lowest level. You have to look, and the international law precedence and American law requires it, you look up the chain of command. What I discovered by accident was that -- this is not a concern that I have alone -- President Bush's White House counsel, Alberto Gonzales, himself, who is now the Attorney General of the United States, wrote a memo in January 2002 to President Bush saying one of the reasons we need to opt out of the Geneva Conventions wasn't just because they didn't like the Geneva Conventions because they don't like treaties, but he said, we have to worry about prosecutions under the U.S. War Crimes Act of 1996. That, it turns out, is a federal statute that applies to any U.S. national, military or civilian, high or low, who violates the Geneva Conventions in certain ways. In other words, who engages in murder, torture, or inhuman treatment. And it's not just those who engage in it, it's those who order it or those who, knowing about it, fail to take steps to stop it. That means higher-ups.

JUAN GONZALEZ: This 1996 law is not very well known.

ELIZABETH HOLTZMAN: No. It's totally obscure. I only found out about it because Alberto Gonzales was worried about prosecutions of high level officials under it.

JUAN GONZALEZ: What brought this law about? In other words, was Congress reacting to --

ELIZABETH HOLTZMAN: What happened was in the 1990s, during the, I guess it was the Clinton administration at that time, Congress decided that it wanted to adopt laws to take it into full compliance with its obligations under an international torture statute and an international torture treaty and the Geneva Conventions. And so, it passed two laws. One is a statute making it a U.S. crime to engage in torture. It was passed two years before the 1996 law, and then you have the War Crimes Act of 1996.

And basically, what it does, it makes grave breaches of the Geneva Conventions a federal crime. Got it? Just like kidnapping or interstate burglary or child pornography, it is a federal crime. And the other thing, that's interesting is that it carries the death penalty. If death results from torture or inhuman treatment, then there is a death penalty, and that means there's no statute of limitations. That means that if any high level official violates the War Crimes Act, and somebody died, they can be prosecuted. They are subject to prosecution for the rest of their lives.

AMY GOODMAN: So what did Gonzales do about President Bush?

ELIZABETH HOLTZMAN: What Gonzales did to President Bush, he said, ‘Mr. President, we have got to worry about prosecutions under this statute, and what we can do is we can reduce the possibility of prosecutions by opting out of the Geneva Conventions.’ And guess what. The President opted out of the Geneva Conventions. He followed the advice of Gonzales. And by the way, the same advice was given by Attorney General Ashcroft in a memo to the President, as well, saying that he wanted to make sure that law enforcement officials, intelligence officials and others were not prosecuted under the War Crimes Act. So, here we have two high level U.S. government officials warning President Bush that the War Crimes Act, a U.S. statute, could make high level American officials criminally liable, if they -- unless they opted out of the Geneva Conventions.

<snip>

There is nothing that is reality-based that implies the "death penalty." One might look at the country they live in to get clued in to what is real versus fantasy.

a topic essential to the cases AIPAC/PLAME connection. I wish I could add more information to this subject, but in this instance I'm reading and learning....

come on... let's have some more!?!