Would prosecuting the Plame case
    under the Espionage Act
    give us a virtual Official Secrets Act?

The Espionage Act is too broad and needs to be cut back. But the Plame case would fit within the borders of even a tightly-drafted law, so there’s no reason not to use the law we have. It might even generate some Republican enthusiasm for cutting back on excessive secrecy.

Jack Shafer ofSlate’s Pressbox has been insisting all along that there was no prosecutable substantive crime in the Plame Affair, and criticizing the investigation on that basis. (Shafer once likened Patrick Fitzgerald to Inspector Javert of Les Miserables.)

Since, Shafer reasoned, the misconduct of the White House Iraq Group in the Valerie Plame Wilson case probably couldn’t be shown to have met all the elements of the hard-to-violate Intelligence Identities Protection Act, Patrick Fitzgerald would in the end either have to bring prosecutions on ancillary charges such as making false statements to investigators (a la Martha Stewart) or simply write a report and fold his tents.

Based on this week’s developments, Shafer is now willing to entertain the alternative thought that the Espionage Act might apply. (He generously credits me for badgering him into reconsidering the question.)

But the thought doesn’t make Shafer happy. He fears, not unreasonably, that the Espionage Act, if enforced as written, could amount to an Official Secrets Act: a Very Bad Thing, as I’ve argued before.

Shafer writes:

National-security reporters … receive classified information for a living. If the government used espionage law to investigate government leaks to the press, the effect would be an unofficial secrets act criminalizing thousands, if not tens of thousands, of annual conversations between sources and reporters.


… no Department of Defense, National Security Council, Department of State, or White House staffer with security clearances would ever speak—on or off the record—to any reporter about any sensitive topic. The sheer legal exposure would prove too much. Knowing they’re explicitly liable for indictment, they’ll just stop talking to reporters.

Actually, it could be even worse than that: officially-authorized leaks would continue (“I never leak,” Henry Kissinger used to say. I de-classify.”) while whistleblower leaks might dry up. After all, in general it’s the administration in power that gets to decide who does, and who does not, get prosecuted. (The risk would be especially grave if journalists as well as leakers were prosecuted; the law allows for that, but there’s no hint that Fitzgerald intends to go that far, and I doubt that such a prosecution could, or should, survive a First Amendment challenge.)

So I’m entirely with Shafer, the ACLU, and the National Security Archive in thinking that existing secrecy laws are overbroad and need to be reined in. I would de-criminalize the publication of classified information by reporters and by anyone else without a clearance; the job of keeping secrets secret is the government’s job, not that of the press. And I would replace the vague “reason to believe” that information “could be used to the injury of the United States” with a standard requiring proof of probable or actual damage, and allow action in the public interest as an affirmative defense. (That might require some in-camera hearings, after the fashion of the “graymail” statute.)

The resulting bill might get fifty votes in the House on a good day, and maybe a few in the Senate. If the Democrats were foolish enough to push such a proposal, we’d hear endlessly from Karl Rove, his allies, and his trained seals in the media about how liberals want to weaken our national security in the face of the Islamofascist threat.

So now let’s imagine a strategy for passing our bill in the face of that political situation. Can you imagine a more potent means of securing support from the current Administration and the GOP majority in Congress than prosecuting Karl Rove and his buddies under the current law? I can’t.

And since, in my view, the conduct of the people who arranged for Valerie Plame Wilson’s identity as a CIA officer to be revealed (and along with it the identities of the other CIA officers using Brewster Jennings as cover) would easily meet a standard of actual damage to the national security, I see no reason not to prosecute them under the law as it now reads. They did the crime; now let them do the time.

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: Markarkleiman-at-gmail.com