Thursday, July 28, 2005

TREASONGATE: The Controlling Law - Big Trouble For The White House Staff.

The controlling law for Treasongate has been greatly ignored by the main stream media and the blogosphere. This article seeks to clarify the controlling law.

To determine the controlling law, all one needs to do is read the non-disclosure agreement Karl Rove and all of the members of the Bush administration with security clearance signed which included the following statement:

"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."

Sanctions for a breach of the non-disclosure agreement are provided for by Executive Order, but those sanctions are ancillary to the United States Code provisions cited in the paragraph above which stand alone.

Please notice that the Title 18 United States Code statutes are separate statutes that precede the first mention of the "Intelligence Identities Protection Act". The complicated "Intelligence Identities Protection Act" of 1982 which has been exclusively discussed by the media is not controlling. Rove and company may be guilty of violating that act, but prior United States Code statutory law and Federal case law, specifically 18 USC 793 as interpreted by United States v. Morison (and related cases) has been breached and should lead to convictions under the facts known to the public at large. 18 USC 793 provides for a maximum of ten years in prison to those convicted under this statute.

Analysis of the law and precedent regarding 18 USC 793 indicates that the facts known to the public in the Plame case may be sufficient to guarantee convictions because the statute does not require that the information leaked be "classified". Certainly, the information leaked in the Plame case was classified as "SECRET" in a State Department memo circulated from and to White House staff, but that classification is not necessary for convictions under sections of Title 18 statutes.

18 USC 793 does not require that officials responsible for disclosing information about Valerie Plame had to know she was "covert" or under cover. Discussed in great detail below, the statute only requires that the information leaked be related to the national defense and that the individual responsible for disclosing that information have a reasonable belief that the information could be used to the detriment of the USA. Ths legal test is much easier to meet than the test put forth in the Intelligence Identities Protection Act.

Furthermore, the highest courts in the USA that have studied this issue already address the defensive arguments forwarded in Treasongate. And it is clear that arguments which might stand a chance in a defense to the Intelligence Identities Protection Act, will fail as a defense to charges brought under 18 USC 793, 794 and 641.

[If 18 USC 794 has also been breached, that statute provides a maximum sentence of the death penalty for those convicted "in a time of war". Analysis of 18 USC 794 and 18 U.S.C. @ 641 will be the subject of a future article by this author. The focus of this study will center upon 18 USC 793(d), which is the statute most likely to return convictions in the Plame matter. Sections 794 and 641 may also have been violated, but those issues are slightly more difficult to prove. Please note that in 2002, the Bush administration used 18 U.S.C. @ 641 to convict Jonathan Randel for leaking to the media non-classified information about Drug Enforcement Administration files.]

It has been reported in various publications that a State Department memo was circulated among members of The White House staff indicating that the paragraph containing Valerie Plame's name was marked with an "[S]" meaning the information in that paragraph was classified as "Secret". EXECUTIVE ORDER 13292, signed by President Bush on March 25, 2003 explains the various levels of classified information:

"2) "Secret" shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe. "

The classified State Department memorandum central to the federal leak investigation contained information about CIA officer Valerie Plame in a paragraph marked "(S)" for secret, a certain indication that any Bush administration official who read it should have been aware the information was classified.

18 USC 793(d) states:

"d) Whoever, lawfully having possession of, access to, control over,
or being entrusted with any document, writing...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,
....[s]hall be fined under this title or imprisoned not more than ten years, or both."

Part (e) states, "Whoever having unauthorized possession of, access to....", and is thereafter identical to section (d). (This section could possibly lead to a conviction of Novak as well and will be the subject of a future article.)

Please note that the statute does not require the information be "classified", it only requires that the info be related to "national defense".

Valerie Plame was working on weapons of mass destruction for the CIA. Nothing could be more related to national defense.

The application of this law has been clearly and concisely handled in United States v. Morison, 844 F.2d 1057 (4th Cir.), cert. denied, 488 US 908, 109 S.Ct. 259, 102 L.Ed.2d 247 (1988).

John Ashcroft cited this case in his letter to Congress of October 22, 2003, "Although there is no single statute that provides criminal penalties for all types of unauthorized disclosures of classified information, unauthorized disclosures of classified information fall within the scope of various current statutory criminal prohibitions. See United States v. Morison, 844 F.2d 1057 (4th Cir. 1988)."

Samuel Loring Morison was charged with releasing copies of three photographs, classified "secret ", to Jane's Defense Weekly ("Jane's"), a British magazine. Count I of the Indictment charged that Morison wilfully caused the photographs, which allegedly related to the national defense, to be transmitted to a person not entitled to receive them, in violation of 18 U.S.C. @ 793(d).

The court stated: The relevant law under which Morison is charged in Counts I and III is found in 18 U.S.C. @ 793(d) and (e), part of a broader espionage statute. Section 793(d) provides that whoever, having authorized possession or control of a document or photograph, relating to the national defense, or information relating to the national defense, which information the possessor had reason to believe could be used to the injury of the United States, and who wilfully delivers it to any person not entitled to receive it, guilty of the offense..."

Notice the standard, "could be used to the injury of the United States". Obviously, "could" is a much broader standard than "would". In plain language, the statute says, if it was reasonably foreseeable that the information disclosed could possibly effect the national defense, the person responsible for the leak is guilty under the statute. Morison argued that the term 'national defense" was too vague, but the court didn't buy it, stating:

"Morison's first attack on Sections 793(d) and (e) is that the term "relating to the national defense" is impermissibly vague and fails to give fair warning of what documents are covered by the statute. This argument relies heavily on the Supreme Court's reasoning in Gorin v. United States, 312 U.S. 19, 85 L. Ed. 488, 61 S. Ct. 429 (1941)...

The government has responded to this assertion by noting that the statute does contain an intent requirement, although not the same requirement that was contained in the Gorin statute. Sections 793(d) and (e) require that the acts be done "wilfully;" if the transmitted item is "information", "which information the possessor had reason to believe could be used to the injury of the United States"...

The government contends that if a defendant, "such as Morison, wilfully transmits photographs relating to the national defense to someone who is known by the defendant not to be entitled to receive it, the defendant has violated 793(d) no matter how laudable his motives." According to the plain language of the statute, the government's interpretation is correct. Thus, although there is an intent requirement, the "delimiting" intent to injure the United States is not present in this statute and defendant argues that it is therefore impermissibly vague. Unfortunately for the defendant's argument, the Fourth Circuit has addressed this issue and found that a similar statute was not unconstitutionally vague. In United States v. Dedeyan, 584 F.2d 36 (4th Cir. 1978), the Fourth Circuit construed 18 U.S.C. @ 793(f),... "


"As the District Court noted in Dedeyan, "certainly 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.

In Dedeyan, the defendant was accused of knowing that the document had been abstracted by his cousin, a Russian spy, and failed to report it. Here, the situation is slightly different because it does not involve a foreign agent or the classic spy scenario. Rather, the defendant is accused of releasing classified information to the press, thus exposing that classified information to every foreign agent and government, hostile or not, in the world."

That is directly on point as to the leak of Plame's name to Novak and others.

The court's decision in Morison further 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 acquiescence to abide by the Government's determination of classified information of those who sign this agreement was discussed by the Morison Court:

"Defendant next argues that the phrase "not entitled to receive" is also unconstitutionally vague, in that it fails to inform a citizen of whether his conduct is prohibited... The government has responded by pointing out that under no circumstances is that statute unconstitutionally vague when applied to this defendant, who clearly knew by virtue of his security clearance and his signing of an agreement that classified information and documents were not to be transmitted to outsiders....Applying that same principle here, it seems clear that authorization to possess documents and entitlement to receive them may be determined by reference to the classification system under which the defendant worked. "

Clearly, Bush administration officials had knowledge that the Government's decision as to what is classified and what is not, could not be circumvented since they signed the non-disclosure agreement.

Those following the issues raised by the non-disclosure agreement should not get bogged down by the sanctions provided for in EXECUTIVE ORDER 13292 because the more serious legal breaches are contained in the United States Code which has a settled line of case law discussing everything the media pundits are now spinning.

The Morison Court continued the discussion:

"Congress has recognized the classification system and given its support to the determination by Executive Order of who is authorized to possess and who is not authorized to possess classified information,...

Since these executive orders are issued in fulfillment of the President's Constitutional responsibilities, they have the force and effect of law....The phrase "not entitled to receive" is not at all vague when discussed in reference with the classification system, which clearly sets out who is entitled to receive (those with proper security clearances and the "need to know") and Morison was certainly aware of the proscripts of the classification system. Defendant has argued that even if this construction is given to the statute, the statute is impermissibly vague because then an individual would be left to make the determination of who has the "need to know," and therefore the right to receive classification information. There can be no argument of such vagueness here, where the defendant released the information to Jane's, which had neither a security clearance or a need to know.... "


It matters not that Rove and others may claim they were just setting the record straight regarding details of Ambassador Wilson's trip. Regarding this type of defense, the Court in Morison stated:

"Morison urges that the requirement that acts be done wilfully translates to a requirement that they be done with some evil purpose and that if he acted with an intent to inform the public he did not have the requisite evil purpose. He urges this Court to adopt a construction of the word wilfully used in Hartzel v. United States, 322 U.S. 680, 686, 88 L. Ed. 1534, 64 S. Ct. 1233 (1944). In that case, the court, noting that the statute was a highly penal one restricting freedom of expression, held that the word "wilful" must be taken to mean "deliberately and with a specific purpose to do the acts proscribed by Congress." In another sentence, the Court referred to this "evil purpose;" however, in the rest of the opinion the court refers only to the specific intent to do the evil prohibited by the statute, i.e., causing or attempting to cause insubordination, disloyalty, or mutiny. That case did not require"evil purpose" as the defendant reads it, but only required that the prohibited acts be done deliberately and with a specific purpose to do that which was prohibited. In Truong Dinh Hung, 629 F.2d at 919, the court discussed the trial court's instruction that "wilfully" meant "not prompted by an honest mistake as to one's duties, but prompted by some personal or underhanded motive" and apparently approved such an instruction. It seems clear that the defendant here will not find much comfort in his defense that he did what he did with good intentions, unless he can also assert a defense that he did not do so "wilfully."

So, Karl Rove and others involved who may have shared classified information cannot assert a defense that they had "good intentions" since their activities were "willful" in that they intended to share the classified information (or even unclassified information relating to the national defense which "could" lead to the USA being injured).

The reasons Bush administration officials may have had for willfully sharing information about Valerie Plame's status at the CIA is totally irrelevant as is the distinction between offering her name to the press as oppopsed to simply confirming for a reporter that she worked at the CIA, regardless of whether her CIA status was covert.

I reiterate, if any Bush administration officials disclosed or confirmed any information relating to the national defense that could possibly injure the USA, such official is guilty of violating 18 USC 793. They are guilty whether they saw the classified State Department memo or not under the simple test of 18 USC 793 as set forth by the Court in Morison. Of course, if they did see the State Department memo classified as SECRET, the conviction is that much esier to prove and the penalty will probably be more severe.

Now we turn our attention to United States v. Squillacote, 221 F.3d 542, 556 (4th Cir. 2000) .

In that case, the question presented to the court was, whether the district court improperly defined the terms "connected with the national defense" and "relating to the national defense" for purposes of 18 U.S.C. 793 and 794.

The Court's decision in that case cuts right through the media talking point alleging that Valerie Plame's status was not covert. Indeed, the issue of public knowledge of the classified information is not relevant to the issue of whether the leaker broke the law. The Court stated:

"The term "national defense" is a broad term which refers to the United States military and naval establishments and to all related activities of national preparedness.

To prove that documents, writings, photographs or information relate to the national defense, there are two things that the Government must prove. First, it must prove that the disclosure of the material would be potentially damaging to the United States or might be useful to an enemy of the United States. And second, it must prove that the material is closely held by the United States government.

To prove that documents, writings, photographs or information relate to the national defense, there are two things that the Government must prove. First, it must prove that the disclosure of the material would be potentially damaging to the United States or might be useful to an enemy of the United States. And second, it must prove that the material is closely held by the United States government. "

This first test is met if the disclosure "might" be useful to an enemy of the USA. Valerie Plame was working on weapons of mass destruction issues at a time of war. The paragraph her name appears in on the State Department memo was officially classified as SECRET by the US Government. EXECUTIVE ORDER 13292, signed by President Bush defines SECRET:

"Secret" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe."

The information regarding Valerie Plame in the State Department memo is statutorily defined as information which could reasonably be expected to cause serious damage to the national security of the USA. There is no argument available to the future defendants which can change that status.

For purposes of part two of the test announced by the Court in Squillacote, it is irrelevant whether Rove or others saw the memo including the paragraph with Valerie Plame's info marked as SECRET because the classification in the memo of that information as being SECRET proves that the material is closely held by the United States government.

Disclosure of that information was potentially damaging to the USA according to 18 USC 793(d) and Executive Order 13292.

The court further stated:

"This Court has never held that information in classified government documents ceases to "relat[e] to the national defense," within the meaning of the espionage statutes, whenever such information may be found somewhere in the public domain. Nor has any court of appeals made such a holding."

So, it will not do those involved in Treasongate any good to argue that some people in the public domain knew Valerie Plame was a CIA agent. The court went on to address a very similar fact pattern:

"The Second Circuit did not hold, as petitioners suggest, that a closely held government document ceases to "relate to the national defense," for purposes of the espionage statutes, whenever the information in the document may be found in the public domain...

The court of appeals explained that "there is a special significance to our government's own official estimates of its strengths and weaknesses, or those of a potential enemy," because such estimates "carry with them the government's implicit stamp of correctness," which "in and of itself is a fact that would be highly valuable to other countries...

Finally, if the government had to bear the burden of proving that the information on which an espionage prosecution is based "was not lawfully available in the public domain" at the time of its dissemination, as petitioners urge (Pet. 15 (emphasis omitted)), the government's ability to bring such prosecutions would be severely impaired. The government would effectively be required "to prove, at least as to some piece of information contained in the document, that no person anywhere in the world had ever publicly speculated about that information"...

As the court of appeals recognized, "[r]equiring that kind of 'proof of a negative' would unduly hamper the government's ability to protect sensitive information and would render successful prosecutions in cases involving closely-held documents nearly impossible." Ibid. No court has suggested that the government must bear such a burden."

The law does not create an exception for releasing classified information that may already be in the public domain. It makes no difference if Valerie Plame was known to some people somewhere in the world as a CIA Agent.

The applicable statutes were violated regardless. In conclusion, I find it quite incredible that the main stream media, and for that matter the blogosphere as well, has failed to bring these very applicable statutes and court decisions to the immediate attention of the People of the USA.