AIPAC indictments:
    Bad news for Rove

Indictments under the Espionage Act for politically-motivated release of classified information to the press. Could someone please pass Mr. Luskin the Excedrin?

Three indictments were handed up today in the Franklin/AIPAC case. I haven’t been following that case closely, and don’t know its merits. It wouldn’t surprise me if AIPAC had crossed the line, but it also wouldn’t surprise me if some folks in the FBI and elsewhere in the bureaucracy disliked the power of American Zionists and had chosen to made a criminal case out of leaks that didn’t, in fact, damage the national security at all. So I’m withholding judgment.

The case I have been following closely is the Plame/Rove case, and it seems to me that today’s indictments tell us quite a lot about how that case is likely to come out. The indictments were for “communication of national defense information to persons not entitled to receive it,” in violation of 18 U.S.C. 793 (d), otherwise known as the Espionage Act, and for conspiracy to do so.

(There are also charges of communicating such information to foreign officials, but the press release on the indictment issued by the U.S. Attorney specifically mentions “unlawful communication, delivery and transmission to persons not entitled to receive it, including members of the media.”) (Emphasis added.)

There seems to be no evidence that money changed hands, or that there was any intention to damage U.S. interests. Franklin is simply charged with giving classified information to those without security clearances, in pursuit of a political agenda.

So it turns out that the Espionage Act isn’t a dead letter after all, and that it can be used to prosecute non-commercial, non-hostile revelations of sensitive information to the press, as opposed to giving secrets to hostile foreign powers.

Or, as the U.S. Attorney put it, “When it comes to classified information, there is a clear line in the law. Today’s charges are about crossing that line. Those entrusted with safeguarding our nation’s secrets must remain faithful to that trust. Those not authorized to receive classified information must resist the temptation to acquire it, no matter what their motivation may be.”

Of course, that phrasing takes us too far in the direction of an Official Secrets Act. Just because something is classified — even properly classified under current standards — doesn’t mean that revealing it has any chance of damaging the national security, as opposed to creating embarrassment for those in power. But burning an undercover CIA officer isn’t a close call.

I’ve thought for some time that the Plame unmaskers would be tried under the Espionage Act rather than under the the Intelligence Identities Protection Act, with its much more demanding elements.

Hat tip: Blue Mass. Group, via an alert and helpful reader.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: