Parsing the Morison case

The Espionage Act isn’t restricted to “spying” in the ordinary-larguage sense, and it does apply to material given to the media rather than to foreign agents.

As the Baseball Crank has pointed out, I tend to make the typical non-lawyer mistake of reading the law rather than the cases. A statute doesn’t mean what it says; it means what the precedents say it says.

Fortunately, one of my readers does know how to read cases, and has read the decision most on point: U.S. v. Morison, in which a civilian Navy employee was sent to prison for supplying some satellite photos to Jane’s.

He writes:

Check out this 1988 Appeals Court case:

U.S. v. MORISON, 844 F.2d 1057 (4th Cir. 1988)

It specifically holds that sections 793 (d) and (e)

apply to leaks to the press and not just “classic

spying,” as the defendant in Morison argued.

Case excerpt:

“It seems abundantly clear from this legislative history that sections 793(d) and (e) were not intended to be restricted in application to “classic spying” but were intended to criminalize the disclosure to anyone “not entitled to receive it.”

…The language of the two statutes includes no limitation to spies or to “an agent of a foreign government,” either as to the transmitter or the transmittee of the information, and they declare no exemption in favor of one who leaks to the press. It covers “anyone.” It is difficult to conceive of any language more definite and clear.

… The legislative record is similarly silent on any

Congressional intent in enacting sections 793(d) and

(e) to exempt from its application the transmittal of

secret military information by a defendant to the

press or a representative of the press.”

As far as I can tell, this holding is still good law.


1) Based on statements by Matthew Cooper and Rove’s

lawyer Robert Luskin we know that on July 8, 2003,

Rove possessed information relating to the national

defense, specifically the fact that “Joseph Wilson’s

wife works for the CIA on weapons of mass destruction


2) Rove’s lawyer’s statements, Matthew Cooper’s

statement about what he told the grand jury, and the

email from Cooper to his editors at Time show that

Rove “willfully communicate[d]” the identity of a CIA

officer to a reporter.

In this context, “willfully” means “intentionally,”

that is, Rove was not forced to communicate the

information, and he did not communicate the

information while talking in his sleep — he

intentionally communicated the information, he

intended for Cooper to receive the information, and

therefore he “willfully communicated” the information.

Not saying Wilson/Plame’s actual name is irrelevant

if Rove identified her as a CIA officer — by informing

Cooper that Wilson’s “wife” worked for the CIA, Rove

was identifying Valerie Wilson/Plame — Wilson’s wife —

as a CIA officer.

3) Surely Rove would have had “reason to believe” the

identity of a CIA officer “could be used” to the

injury of the United States or the advantage of a

foreign nation.

As far as this law is concerned, it appears to be

irrelevant whether Rove actually knew Valerie Wilson

was “covert,” because if he did not know whether she

was covert or not, then he knew or would have reason

to believe that she might be covert, and that if she

was, revealing her identity “could be used” against

the United States. (See also the Secutory Clearance

agreement Rep. Waxman noted last week.)

4) A reporter for TIME Magazine is surely “not

entitled” to receive classified information regarding

the identity of a CIA officer.

Under this analysis, it wouldn’t matter a bit if in fact Rove had first heard the information from Novak. Over to you, Crank.

[Oh, and Crank? If someone is an undercover CIA officer, and you announce that the person works for the CIA, you don’t have to say “in an undercover capacity” to have blown the officer’s cover.]


The Crank responds, politely and cogently. We agree that Rove’s deeds, as reported in the press, fit within the ambit of the statute; the Crank thinks Rove would have sufficiently plausible defenses to deter a prudent prosecutor. He asserts that “willfullness” under the statute means, not only intentionality, but knowledge that the act in question was illegal.

On that point my correspondent confesses error:

BB Crank appears to be right (and I to be wrong) about the requirement of “willfullness” of a communication in an Espionage Act prosecution. I was applying the “willfullness” standard that is applied to California statutes that use phraseology like that in sec. 793.

But, says my correspondent, Rove’s conduct may well meet even the stronger “willfullness” standard:

But to the extent willfullness means you know you’re doing something wrong, there is at least

circumstantial evidence of that fact. I don’t know about federal court, but in California, his statement that he had “already said too much” would surely be enough to get the question to the jury to decide. Also the fact that Rove would necessarily have reason to believe Valerie Wilson COULD HAVE BEEN covert at the time of the leak might be sufficient to meet the willfullness requirement — he should have known he could be breaking the law by disclosing Plame’s CIA employment and to go ahead and do so anyway would, I think, be “willful communication” of that fact.

(Also, despite the Rove defenders who, like BBC, take what pro-Rove leakers have stated as fact, we don’t know what facts the prosecutor has turned up in the grand jury — for instance, do any of the pre-leak State Dept. memos on Wilson discuss Plame’s CIA status, and did Rove, who was a key player in the pushing back against Wilson, see those memos? Both of these seem likely, but we don’t know; Fitzgerald might.)

So, based on BBC’s points, I don’t think it’s a slam dunk case BASED ON WHAT WE KNOW. But I do think, based on what we know, that there is enough evidence to bring the charge. (I think BBC might agree there.) But there are probably more facts known by the prosecutor that would make his case stronger or weaker (and possibly rope in many more people).

What seems amazing to me is the extent to which the media is accepting the current attacks on Wilson as a legitimate part of the debate; by following the GOP line, the press might be missing what could be one of the biggest scandals in US history. I don’t assume that is the case, but it certainly is possible based on what we know about who has been questioned by the prosecutor and the potential damage to intelligence operations that most likely did occur with the outing of Valerie Plame.

In this context, Rove’s remark to Cooper that some details about Wilson were being declassified, followed by his closing “I have already said too much” seem to me very strong evidence of “willfulness” in the legally relevant sense.

Above corrected to get Rove’s lawyer’s first name right. Thanks to BBC for catching the error.

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: