October 19, 2005,
As speculation mounts that prosecutor Patrick Fitzgerald will soon seek indictments against Karl Rove, Lewis Libby, or other Bush administration officials in the Plamegate investigation, there is still no clear idea on what anyone might be indicted for.
While defense lawyers involved in the case have carefully studied the two statutes most frequently mentioned as possible grounds for charges the 1982 Intelligence Identities Protection Act and the 1917 Espionage Act some informed sources who follow the investigation find it difficult to believe that either could become the basis for prosecution.
One former intelligence official suggests that most of the speculation that charges might be brought under the Intelligence Identities Protection Act was the result of a misunderstanding in the press. "The Identities Protection thing, I don't think, was ever a likely act to be cited," the official told National Review Online Tuesday. "It's been misrepresented by a variety of people that the CIA had asked the Justice Department to look into that particular act, but that's not the way it works."
Instead, the former official explained, the original CIA referral of the Plame case was a somewhat routine, nonspecific matter. "When the agency has reason to believe that classified information has entered into the news media, it is required to notify the Justice Department to look into it," the former official says. "That happens frequently about once a week. But they don't say to the Justice Department, 'And here are the laws that apply...' It's sort of poor form to tell Justice Department lawyers what laws apply."
Nevertheless, the official says, for many months press speculation about the case centered on the exceedingly hard-to-prove Identities Protection law. "People have, in the early coverage of this, leapt to the conclusion that that was the applicable law," the official says. "But I think that was never the likely issue."
That leaves the Espionage Act, originally passed during World War I, as the other law that might be a basis for a Fitzgerald prosecution. Last Saturday, the Washington Post reported that "some lawyers in the case think Fitzgerald may no longer be interested in proving whether Plame's name was illegally leaked to reporters" under the Identities Protection law, because that is simply too hard to prove; instead, the paper reported, "the lawyers, who based their opinions on the kinds of questions Fitzgerald is asking and not on firsthand knowledge, think the special prosecutor may be headed in a different direction. They said Fitzgerald could be trying to establish that a group of White House officials violated the Espionage Act, which prohibits the disclosure of classified material, or that they engaged in a conspiracy to discredit Wilson in part by identifying Plame."
But there are questions about whether the Espionage Act provides an appropriate basis on which to charge administration officials in the Plame matter. The crimes set forth in the act are clearly defined and, while some of them seem archaic today, do not appear to closely apply to the Plamegate affair. For example, the act prescribes punishment of up to 10 years in prison for:
Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, fueling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, research laboratory or station or other place connected with the national defense owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers, departments, or agencies, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired, stored, or are the subject of research or development, under any contract or agreement with the United States, or any department or agency thereof, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place so designated by the President by proclamation in time of war or in case of national emergency in which anything for the use of the Army, Navy, or Air Force is being prepared or constructed or stored, information as to which prohibited place the President has determined would be prejudicial to the national defense...
Lawyers who have studied the act say that its specificity torpedo station, dockyard, telegraph suggests that lawmakers had very well-defined crimes in mind when they crafted the legislation. "They listed ship movements and maps and arms factories," says one lawyer, "so it wasn't like they didn't try to be all-inclusive. Certainly this [the Plame matter] is not on that list." Later in the act, the law outlines penalties for:
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; or
Again, the specificity code book, signal book, blueprint suggests that the act's authors had very circumscribed crimes in mind. And if Fitzgerald were looking to bring charges based on the Espionage Act, or to allege that administration officials conspired to violate the act, he would likely have to argue that the accused had reason to believe that information in the case "could be used to the injury of the United States or to the advantage of any foreign nation." That could prove just as difficult as prosecuting under the Identities law.
"The Espionage Act would strike me as a huge leap," says the former intelligence official. "I don't think this amounts to espionage by any stretch of the imagination."
In addition, if the case focused solely on the disclosure of classified information to those who are not authorized to receive it, administration defenders might well argue that ambassador Joseph Wilson, the man whose wife's CIA identity was exposed in the matter, has done something similar. While that argument might on the surface appear plausible, on closer scrutiny it is not clear whether it applies to Wilson's actions.
The CIA has never released the written report made from Wilson's February 2002 fact-finding trip to Niger. (Wilson himself did not write a report, but the agency wrote up his conclusions from his oral report on the matter.) The document has not been released, apparently, because it is classified.
Wilson, however, spoke openly about his trip, both as an anonymous source for New York Times columnist Nicholas Kristof and Washington Post reporter Walter Pincus, and later under his own name in his now-famous Times op-ed from July 2003. While Wilson is said to have not been asked by the CIA to sign a secrecy agreement before the trip, the absence of such an agreement would still not allow him to disclose classified information.
But the former intelligence official warns that it is possible that just some parts of Wilson's findings were classified say, specific sources he contacted whose identities have not been revealed. If that is case, the official argues, then Wilson did not violate any laws in his statements to the press (even those statements that were later found to be untrue).
In addition, members of the Senate Intelligence Committee were given the CIA's written report on Wilson's trip, and, at least as far as is publicly known, they did not recommend that he be investigated for revealing classified information. The discussion of Wilson's findings in the Intelligence Committee's report is blacked out in a few places, apparently to conceal at least one name originally mentioned by Wilson.
Given the difficulties with prosecutions under both the Espionage Act and the Intelligence Identities Protection Act, it appears that if Fitzgerald is indeed moving toward indicting anyone, he might well choose to base the charges on allegations of obstruction of justice or the making of false statements, either to Fitzgerald's investigators or to the grand jury. "At the end of the day," says the former intelligence official, "this could end up being a situation where there wasn't a crime until there was an investigation."
Byron York, NR's White House correspondent, is the author of the new book The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President and Why They'll Try Even Harder Next Time.