The Espionage Act

Welcome, Kausfilers! See update below.

Lots of people are still rooting for the bad guys in the Valerie Plame affair to get away with it, either because their identities stay concealed or because their foul deed didn’t quite match the particulars of the Intelligence Identities Protection Act.

Here are some words for them (and the bad guys themselves, of course) to ponder. They’re from 18 U.S.C. 793 [*], the Espionage Act.

I’ve highlighted the passages that seem to apply:

(d)

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

(e)

Whoever having unauthorized possession of, access to, or control over 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 to the officer or employee of the United States entitled to receive it;

[snip: subsection f is about keepers of documents]

Shall be fined under this title or imprisoned not more than ten years, or both.

(g)

If two or more persons conspire to violate any of the foregoing provisions of 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.

If I read the Sentencing Guidelines [*] correctly, violations of 793 d, e, or g have a “base offense level” of 29 when the information involved is Top Secret (as an undercover officer’s identity certainly is). That means a guideline range of from 87 to 108 months.

That’s roughly the same range as sentences under the Intelligence Identities Protection Act (base offense level of 25 for disclosure by those without authorized access to the information disclosed, 30 for disclosure by those with such access).

The Espionage Act has rarely been used, but it’s not a dead letter, as the Morison case illustrated. And notice how much weaker the scienter requirement is under the Espionage Act than under the Intelligence Identities Protection Act: “reason to know” that the information “could be used” to the injury of the United States. It would be very hard to argue that the Plame disclosures weren’t of information that the disclosers had reason to know could be used to damage the United States.

Moreover, in a case brought under the Espionage Act the timing of Valerie Plame’s most recent foreign assignment and the vigor with which the CIA was keeping her identity under wraps would both be irrelevant. Nor would it be necessary to show actual damage to the national security, which reduces the capacity of the defendants to practice “graymail” (mounting a defense designed to force the government to choose between dropping the case and revealing still more sensitive information in order to prove it).

Moreover, the fact of a prior disclosure, unless that disclosure had been so convincing and so widely publicized as to preclude the possibility that any additional damage would be done by repetition, would not be a defense.

One reason for not using the Espionage Act routinely is its very sweep: it criminalizes a wide range of potential disclosures, and it doesn’t exempt reporters or other re-transmitters of security-sensitive information (they’re vulnerable under subsection e).

But this isn’t a routine case. It seems to me that a prudent prosecutor going after the unmaskers of Valerie Plame would want to bring charges under 793 d and g, if only as backups to charges under the Intelligence Identities Protection Act.

And if someone really wanted to make Robert Novak or Clifford May reveal his sources, just the hint of a prosecution that could result in spending eight hard years behind bars would probably cause either of them to reconsider the limits of journalistic confidence-keeping.

Update Mickey Kaus and Jack Shafer worry that if the Espionage Act were enforced as written it could make it harder to reveal wrongdoing or bad policy. True. But that’s actually one more reason to enforce the Espionage Act to the letter against the folks in the White House who outed Valerie Plame Wilson.