In Part 1 of this report, Citizen Spook analyzed 18 USC 793, the United States Code provision which provides the most direct route to convictions for Patrick Fitzgerald in the Treasongate/Valerie Plame affair.
In this follow up, we are going to discuss 18 USC 794 which deals directly with Treason and the death penalty.
Before we move on to 794, please take note of the indictments which were unsealed yesterday, August 4th, 2005, by the court overseeing US Attorney Paul McNulty's grand jury in the AIPAC investigation against Larry Franklin, Steve Rosen and Keith Weissman.
Counts 1-4 of those indictments were obtained using 18 USC 793(d):
Count 1: Conspiracy to communicate national defense information to persons not entitled to receive it. 18 USC 793 §§ (d), (e) and (g)
Count 2-4: Communication of national defense information not entitled to receive it, 18 USC § 793(d)
No mention of the insignificant Intelligence Identities Protection Act anywhere to be found in these indictments. Have you heard from the main strem media, on the left or the right, about the controlling law, the sections of the US Code these indictments were brought under? Hmm?
The Associated Press and other main stream media outlets published stories about the AIPAC indictments today. But those accounts don't mention that the indictments were brought under 18 USC 793.
Perhaps this has something to do with the official press release issued by McNulty's office which does not mention 18 USC 793. This is certainly a break for the Bush administration, because a Google news search, as of 11:38 a.m. today, August 5, 2005, using the acronym, "AIPAC", and the number, "793" only returns one Blogosphere hit.
Why isn't the main stream media discussing 18 USC 793 and 794? The Title 18 statutes are the most relevant statutes to Patrick Fitzgerald's grand jury investigation.
The sheer scope of intentional ignorance on the part of the main stream media warrants a staggering shame upon those dying institutions whose relevance is quickly becoming marginalized to the point of complete irrelevance. They are not "breaking" stories. They are engaged in controlled propaganda which does not stand up to the monolithic power of the Blogosphere. It's disgusting how they operate in a "see no evil" herd of complicity.
Before I get to the cold hard facts of the law, I want to engage in some speculation about the Bush administration's motivations for breaking the law.
It's important to note that it wasn't just Valerie Plame who was outed by Novak. Plame's entire network was also outed when Novak named Brewster Jennings & Associates, a CIA front company, as the place she worked. The focus of Plame's CIA work was weapons of mass destruction. Her network was responsible for gathering information to help defend our nation against annihilation by such weapons.
WMD is the reason Bush took us to war with Iraq, the backbone of his foreign policy, the mantra more than 1800 of the USA's finest soldiers have met their death for. It is that term, "weapons of mass destruction" that might actually be the calling card of the grim reaper, should he come via court order for the men and women of the Bush crime family.
Don't buy into the mantra that Plame was outed only as a retaliation upon her husband, Joe Wilson. The Bush crime family wouldn't put their necks on the chopping block for Treason just to smear Wilson, especially in light of the fact that they knew Wilson's Niger report was accurate. The risk reward pay off is ridiculously insufficient.
The Bush cabal are not a stupid bunch. You can ridicule Bush, Cheney and the gang all you like, but they're running our country, making billions through Haliburton and the Carlisle group, getting away with torture in open view, and rewriting the Constitution while flipping the middle finger to the main stream media who take that finger, lick it and deposit it in their anatomy on a daily basis...with a smile on their faces.
The only logical reason the intelligent Bush administration would expose themselves to prosecution under the controlling laws of the United States Code by outing Valerie Plame, Brewster Jennings and the CIA, is that they probably had no other choice. It was either expose a major CIA operation to the public at large through co-conspirator, Robert Novak, or allow Plame's CIA division to complete their WMD investigations.
The Bush syndicate must have come to the conclusion that they had a better chance of spinning the outing of Plame to petty retaliation for Wilson's debunking of the Niger document fraud, than they had of surviving an investigation by the CIA of their crimes against the USA and humanity at large, for the fixing of intelligence to support a preemptive war and possibly the facilitation of future black op patsies.
Until recently, the Bush spin machine has flawlessly controlled public attention by concentrating it, as to the law, on the insignificant Intelligence Identities Protection Act, and, as to their motivations, on the Wilson smear campaign. This has been easy spin as their gambit was centered in confidence that the media would play along.
What they could not spin, if the CIA was on to them, was mountains of evidence Plame and her network might have uncovered, evidence which may have been implicating the Bush syndicate in Treason.
Certainly, the State Department and the White House staff must have considered that outing a CIA agent of any level or status, covert or non covert, who was working on weapons of mass destruction, "in a time of war", might lead to that work being compromised and that such actions on their part might expose them to the provisions of 18 USC 793 and 794, among other laws.
And that is exactly what happened.
So their motivations must have been more than simple, petty bitch slapping for Wilson debunking their Niger fraud documents. Keep the word "motivation" in your mind from now on. It's the key to the whole scenario.
Were Plame's team of CIA agents getting close to some of the things Sibel Edmonds was translating at the FBI, things which might implicate the Bush syndicate in 911 as well as the facilitation of terrorist cells getting their hands on components necessary to develop Nuclear weapons to be used against the USA so that the Bush administration could retaliate by going into Iraq, Iran, then North Korea and wherever else their imperialist buts saw fit?
Recall the words used by Wolfowitz just after 911 when he declared that the USA foreign policy would "end terrorist states", a prophetic statement at a time when nobody was suggesting, let alone had any intelligence to implicate any of those countries in 911.
Consider this speculation in light of the "eight redacted pages" of evidence presented by Fitzgerald to support his request that Matthew Cooper and Judith Miller be put in jail for contempt. The issue was throughly discussed by Lawrence O'Donnell in his July 7th Huffington Post article, wherein he reported:
"Tatel actually found that reason and experience 'support recognition of a privilege for reporters' confidential sources'. But Tatel still ordered Cooper and Miller to testify because he found that the privilege had to give way to 'the gravity of the suspected crime'. "
Judge Tatel’s opinion has eight blank pages in the middle of it where he discusses the secret information the prosecutor has supplied only to the judges to convince them that the testimony he is demanding is worth sending reporters to jail to get. The gravity of the suspected crime is presumably very well developed in those redacted pages. Later, Tatel refers to [h]aving carefully scrutinized [the prosecutor’s] voluminous classified filings...
Tatel wrote a 41-page opinion in which he seemed eager to make new law -- a federal reporters’ shield law -- but in the end, he couldn’t bring himself to do it in this particular case. In his final paragraph, he says he 'might have' let Cooper and Miller off the hook '[w]ere the leak at issue in this case less harmful to national security.'
Tatel’s colleagues are at least as impressed with the prosecutor’s secret filings as he is. One simply said 'Special Counsel’s showing decides the case.'
All the judges who have seen the prosecutor’s secret evidence firmly believe he is pursuing a very serious crime, and they have done everything they can to help him get an indictment."
So, with that background:
ANALYSIS OF 18 USC 794(a)
Bush administration officials are very familiar with this law. Each and every one of them signed a non disclosure agreement which says, in part:
" 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. I recognize that nothing in this Agreement constitutes a waiver by the United States of the right to prosecute me for any statutory violation."
There it is, in big bad English, "794".
We will examine three different sections of 794, (a), (b) and (c), each of which contains unique criteria for conviction.
18 USC 794(a)
§ 794. Gathering or delivering defense information to aid foreign government
"(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy."
Wow, there's a lot going on there so let's break it down.
The first requirement for conviction under 794(a) is that the perp must have "intent or reason to believe" that "information" (or any of the other things listed) "is to be used to the injury of the United States or to the advantage of a foreign nation". The key word within this section equals, "is". Any 794(a) perpetrators must have the requisite intent. "Is to be used" is much different than "might be used".
Did Karl Rove and others, intend or have reason to believe that the information communicated to Novak, outing Valerie Plame and her network, would be used to injure the USA or to the advantage of any foreign nation? Even if they thought it "might" be used as such, the standard is not met.
The law is clear. Unless the Prosecutor could present sufficient evidence that the perp in question knew, or had reason to believe, the information transmitted was going to be used to injure the USA, the prosecution would fail under 794(a).
Perhaps Patrick Fitzgerald has such information, but I can't answer that. All I can tell you is that the law sets a high hurdle.
One could argue that the information, once made available, would be used to the "advantage of a foreign nation", and that is not as a high a hurdle. I agree, but the prosecutor still must prove that the perps intended or had reason to believe that the information would be used for that purpose. Once again, "is to be used" is a higher standard than "might be used."
And with such a specific legal requirement, the prosecutor would have to bring evidence relating to which "foreign nation" the information would confer an advatage upon.
It won't be sufficient to name "Al Qaeda" or " the terrorists" because 794(a) does not recognize them as "a foreign nation" under the statute. The statute does recognize terrorists as a "foreign power", but that is different than a "foreign nation."
If Fitzgerald gets by these hurdles, it will be assumend that the information was "indirectly" transmitted to every foreign nation on Earth through Novak, the reporter who published the information to the world. In Part 1 of this report we analyzed the Morison decision, which stated:
"[C]ertainly injury to the United States could be inferred from conduct of the sort charged," whether that conduct involves photographing documents by one foreign agent or release of national defense information to the press and public, where many foreign agents and governments can have access to the information."
For the death penalty to apply regarding 794(a), the prosecution would also have to prove that the information transmitted by the perpetraitor led to the death of a United States agent.
While everything involved with Patrick Fitzgerald's grand jury is generally to be kept secret, it's interesting to note that Rule 6 of the Federal Rules of Criminal Procedure, section (3), provides exceptions that empower Fitzgerald to confer with others:
(A) Disclosure of a grand jury matter--other than the grand jury's deliberations or any grand juror's vote--may be made to:
(i) an attorney for the government for use in performing that attorney's duty;
(ii) any government personnel--including those of a state, state subdivision, Indian tribe, or foreign government'--that an attorney for the government considers necessary to assist in performing that attorney's duty to enforce federal criminal law...
(D) An attorney for the government may disclose any grand-jury matter involving foreign intelligence, counterintelligence (as defined in 50 U.S.C. sec. 401a), or foreign intelligence information (as defined in Rule 6(e)(3)(D)(iii)) to any federal law enforcement, intelligence, protective, immigration, national defense, or national security official to assist the official receiving the information in the performance of that official's duties..."
ANALYSIS OF 18 USC 794(b)
So, we've established that 18 USC 794(a) sets a difficult test for the prosecution, but 794(b) sets forth a much easier test for the prosecution to meet while still providing a maximum sentence of the death penalty when this section is breached "in a time of war":
"(b) 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."
Let's simplify that.
With respect to the outing of Valerie Plame and her CIA network, 794(b) mandates prosecution of anybody who, in a time of war, intentionally communicates information relating to the public defense which might be useful to the enemy. And the maximum punishment for such a violation of 794(b) is death or life in prison.
The Bush Administration most fears 794(b). It simply requires the perpetraitors to be cognizant that the "information" being "communicated" "might be useful to the enemy".
Furthermore, "the enemy" is a much broader term than "foreign nation". As the President has said many times, the enemy is the terrorists.
I think we can all agree that CIA agents and their investigations involved with weapons of mass destruction are related to "the public defense", so that standard is easily met as well.
That just leaves the intent requirement, which is easy to establish under this fact pattern since the statute only requires "intent that the same shall be communicated to the enemy."
Please note that the statute does not require the perp to communicate directly to the enemy, 794(b) only requires that the perp intends for the information to be communicated to the enemy.
Since Karl Rove and others intended that the information be communicated to Novak and other reporters, the perps will not be able to deny that they had knowledge such information would be published to the world, a world in which the enemy resides, an enemy that has access to Novak's report.
To prove the necessary "intent" under 794(b), Fitzgerald only has to present sufficient evidence that Rove and others knew the enemy would have access to the main stream media at the time they communicated information relating to the public defense to Novak and/or other reporters.
It's laughable to imagine the perpetraitors will argue that the enemy wouldn't have access to the information reported by Novak to the world. To such a defensive argument the court in Morison stated:
"Finally, the danger to the United States is just as great when this information is released to the press as when it is released to an agent of a foreign government. The fear in releasing this type of information is that it gives other nations information concerning the intelligence gathering capabilities of the United States. That fear is realized whether the information is released to the world at large or whether it is released only to specific spies."
THE MYSTERY OF "GSAVE" IN "TIME OF WAR"
And finally we come to the statement from 794(b), "in time of war." 794(b) only kicks in if we are in "a time of war." According to the vote by Congress authorizing the war in Iraq, and the Bush administration's words and actions in projecting that war, we are certainly in a time of war at least as far back as March 19, 2003, when we invaded Iraq, but according to the President, war was declared by the enemy on September 11, 2001.
In light of this, "in time of war" requirement from 794(b), it's extremely interesting to note the strange public relations circus emanating from Washington regarding the proposed acronym "GSAVE" which has apparently taken over for "GWOT".
GSAVE = Global Struggle Against Violent Extremism
GWOT = Global War Against Terror
Could it be that the Bush administration will start spinning that we were not in a time of war when Rove and others in the Bush administration outed Plame and her team so as to prepare a defense to coming indictments under 794(b) by Patrick Fitzgerald's grand jury?
If we are in a time of war, those involved with outing Valerie Plame and her network are eligible to be prosecuted under 794(b) and therefore are subject to the death penalty.
It's no wonder our plight has shifted from a "war on terror" to a "struggle against violent extremism."
Look for the Bush administration to make the argument that the Iraq war ended on or about May 1, 2003, the day Bush landed on the USS Lincoln and declared victory over the enemy.
DEAR MR. NOVAK, TAKE A LOOK AT 794(c)
Bob Novak is in as much trouble as Rove and others. 794(c) states:
"(c) If two or more persons conspire to violate this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy."
Novak wrote the report and had it published "in time of war". I don't see any exception to the Treason he committed.