After Robert Novak blew Valerie Plame's covert cover two summers ago in his syndicated column, I repeatedly wrote that the government couldn't possibly use the Intelligence Identities Protection Act of 1982 to prosecute the two "administration officials" who gave him Plame's identity. I found the IIPA, the law most frequently cited in news accounts about the leak investigation, too narrowly composed to apply. The leaker must have authorized access to the officer's identity. He must knowingly transmit the identity. He must engage in a pattern of disclosure. The government must actively protect the officer's identity, and so on and so on.
But it now appears that special prosecutor Patrick Fitzgerald has a very different law in mind for his case. According to New York Times reporter David Johnston's Oct. 7 article, " Prosecutor in Leak Inquiry Orders Rove to Return Again," lawyers involved in the case say the prosecutor may invoke much more broadly worded espionage law in his pursuit of the Plame leakers.
Under the espionage statute, continues Johnston, "a government official or a private citizen who passed classified information to anyone else in or outside the government could potentially be charged with a felony, if they transferred the information to someone without a security clearance to receive it."
National-security reporters—none of whom have clearances—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.
Espionage law was previously used successfully in a Fourth Estate-related case to convict Samuel L. Morison in 1985. Morison, a civilian employee of the Navy, sent "secret" spy photos to Jane's Defense Weekly, a publication, not a foreign power. The only other application of espionage law in a classified-information-to-journalists case came in the early 1970s case against Daniel Ellsberg and Anthony Russo for leaking the Pentagon Papers. Federal charges were dropped against them during the trial because of government misconduct.
TheNation's David Corn previously connected the espionage law, leaks, the Plame case, and official-secrets-act dots in an Aug. 8, 2005, blog entry about the federal case against Lawrence A. Franklin. Franklin, a Defense Department Iran analyst, was charged with giving classified information to pro-Israel lobbyists, and an Israeli official and has since pleaded guilty. Corn surmised that the Franklin prosecution wasn't good news for suspected Plame-leaker Karl Rove, and the impending prosecution of the pro-Israel lobbyists doesn't bode well for journalists. He writes:
Journalists don't like these sorts of prosecutions, for it brings us close to an official secrets act (like the one that exists in Britain). If prosecutors chased after government leakers—say those who leaked intelligence showing that the White House's case for war in Iraq was weak—the public would suffer. And the Justice Department's indictment of [lobbyists Steve] Rosen and [Keith] Weissman—nongovernment officials—for passing along classified information is also worrisome for reporters who pass along classified information by publishing and airing stories that contain secret information.
If I'd listened more closely to drug-policy scholar Mark A.R. Kleiman, Slate readers could have read the espionage angle two years ago. Kleiman, who has written for Slate, took issue with my position that no law had been broken and no prosecution could hold up, pointing me to his blog pieces about the espionage law and especially Morison in e-mails. I countered that the Morison prosecution was an anomaly. He pitched me about writing on the topic for Slate, I directed him to the proper editor, and our correspondence eventually petered out.
Last Friday, Kleiman returned to my inbox with a link to Johnston's Times piece and the admonition that "the evidence has been right there for everyone to see who wasn't wearing Beltway blinders." (Kleiman credits John Dean with first pairing espionage law with the Plame investigation.)
If Johnston's Times account about Fitzgerald's intent is right—and given Judith Miller's involvement, the paper can honestly claim to have a ring-side seat on the investigation—we should first wonder whether Fitzgerald is bluffing with espionage law to pressure the suspected leakers and leakees into talking.
But, say Fitzgerald isn't bluffing, and a successful prosecution under espionage law goes through. What would the long-term journalistic implications be? For one thing, 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.
Still, if Fitzgerald wants to play this sort of chicken, he'd better be prepared to see high courts poke a few constitutional holes in espionage law, which hasn't faced much in the way of legal tests. As Attorney General John Ashcroft complained in 2002 when he was pumping for tougher leak laws, only one "non-espionage case of an unauthorized disclosure of classified information has been prosecuted in over 50 years. …" Presumably, Congress passed the narrow IIPA because it worried that applying the broader espionage law in agent-identity cases might force a Supreme Court contest between the First Amendment and espionage law—one that the press might win.
Who'll shout chicken first?
Interest declared: David Corn is a friend. Thanks to Michael Schrage for his insights. Send your chicken recipes to email@example.com (E-mail may be quoted by name unless the writer stipulates otherwise.)