Individuals within the Bush Administration revealed the
identity of CIA operative, Valerie Plame in contravention of US statutes.
But there has been an intentional misdirection in claiming that the law
that was violated is
"Intelligence Identities Protection Act" of 1982. The
effective
controlling law for Treasongate has been greatly
ignored by the main stream media and the blogosphere. This article seeks
to clarify the controlling law.
****************************
To determine the controlling law, all one needs to do is
read the non-disclosure agreement Karl Rove and all of the members of the
Bush administration with security clearance signed which included the
following statement:
"I have been advised that any unauthorized disclosure of
classified information by me may constitute a violation, or violations,
of United States criminal laws, including the provisions of Sections
641, 793, 794, 798, 952 and 1924, Title 18, United States Code, the
provisions of Section 783(b), Title 50, United States Code, and the
provisions of the Intelligence Identities Protection Act of 1982."
Sanctions for a breach of the non-disclosure agreement are
provided for by Executive Order, but those sanctions are ancillary to the
United States Code provisions cited in the paragraph above which stand
alone.
Please notice that the Title 18 United States Code statutes are separate
statutes that precede the first mention of the "Intelligence Identities
Protection Act". The complicated "Intelligence Identities Protection Act"
of 1982 which has been exclusively discussed by the media is not
controlling. Rove and company may be guilty of violating that act, but
prior United States Code statutory law and Federal case law, specifically
18 USC 793 as interpreted by United States v. Morison (and related cases) has been breached and should lead to convictions under
the facts known to the public at large. 18 USC 793 provides for a maximum
of ten years in prison to those convicted under this statute.
Analysis of the law and precedent regarding 18 USC 793 indicates that the
facts known to the public in the Plame case may be sufficient to guarantee
convictions because the statute does not require that the information
leaked be "classified". Certainly, the information leaked in the Plame
case was classified as "SECRET" in a State Department memo circulated from
and to White House staff, but that classification is not necessary for
convictions under sections of Title 18 statutes.
18 USC 793 does not require that officials responsible for disclosing
information about Valerie Plame had to know she was "covert" or under
cover. Discussed in great detail below, the statute only requires that the
information leaked be related to the national defense and that the individual responsible for disclosing that information have a
reasonable belief that the information be used to the detriment of the USA. Ths legal test is much easier to meet
than the test put forth in the Intelligence Identities Protection Act.
Furthermore, the highest courts in the USA that have studied this issue already address the
defensive arguments forwarded in Treasongate. And it is clear that
arguments which might stand a chance in a defense to the Intelligence
Identities Protection Act, will fail as a defense to charges brought under
18 USC 793, 794 and 641.[If 18 USC 794 has also been breached, that statute provides a maximum
sentence of the death penalty for those convicted "in a time of war".
Analysis of 18 USC 794 and 18 U.S.C. @ 641 will be the subject of a future
article by this author. The focus of this study will center upon 18 USC
793(d), which is the statute most likely to return convictions in the
Plame matter. Sections 794 and 641 may also have been violated, but those
issues are slightly more difficult to prove.
Please note that
in 2002, the Bush administration used 18 U.S.C. @ 641 to convict Jonathan
Randel for leaking to the media non-classified information about Drug
Enforcement Administration files
It has been
reported in various publications that a State Department memo was
circulated among members of The White House staff indicating that the
paragraph containing Valerie Plame's name was marked with an "[S]" meaning
the information in that paragraph was classified as "Secret".
EXECUTIVE ORDER 13292,
signed by President Bush on March 25, 2003 explains the various levels of
classified information:
"2) "Secret" shall be applied to information, the
unauthorized disclosure of
which reasonably could be expected to cause serious damage to the national
security that the original classification authority is able to identify or
describe. "
The classified State Department memorandum central to the
federal leak investigation contained information about CIA officer Valerie Plame in a paragraph marked "(S)" for secret, a certain indication that
any Bush administration official who read it should have been aware the
information was classified.
18 USC 793(d) states:"
d) Whoever, lawfully having possession of, access to,
control over,
or being
entrusted with any document, writing...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, ....[s]hall be fined
under this title or imprisoned not more than ten years, or both."
Part(e) states,
"Whoever having
unauthorized possession of, access to....", and is thereafter identical to section (d).
(This section could possibly lead to a conviction of Novak as well and
will be the subject of a future article.)
Please note that the statute does not require the
information be "classified", it only requires that the info be related to
"national defense".
Valerie Plame was working on weapons of mass destruction
for the CIA. Nothing could be more related to national defense.
The application of this law has been clearly and concisely handled in
United States v. Morison,
844 F.2d 1057 (4th Cir.), cert. denied, 488 US 908, 109 S.Ct. 259, 102
L.Ed.2d 247 (1988).
http://www.mtsu.edu/~lburriss/morison.html
John Ashcroft cited this case in his letter to Congress of October 22,
2003, "Although there is no single statute that provides criminal
penalties for all types of unauthorized disclosures of classified
information, unauthorized disclosures of classified information fall
within the scope of various current statutory criminal prohibitions. See
United
States v. Morison,
844 F.2d 1057 (4th Cir. 1988)."
Samuel Loring Morison was charged with releasing copies of three
photographs, classified "secret ", to Jane's Defense Weekly ("Jane's"), a
British magazine. Count I of the Indictment charged that Morison willfully
caused the photographs, which allegedly related to the national defense,
to be transmitted to a person not entitled to receive them, in violation
of 18 U.S.C. @ 793(d).
The
court stated:
The relevant law under which Morison is charged in Counts I
and III is found in 18 U.S.C. @ 793(d) and (e), part of a broader
espionage statute. Section 793(d) provides that whoever, having authorized
possession or control of a document or photograph, relating to the
national defense, or information relating to the national defense, which
information the possessor had reason to believe could be used to the
injury of the United States, and who willfully delivers it to any person
not entitled to receive it,...is guilty of the offense..."
Notice the
standard, "could be used to the injury of the United States". Obviously,
"could" is a much broader standard than "would". In plain language, the
statute says, if it was reasonably foreseeable that the information
disclosed could possibly effect the national defense, the person
responsible for the leak is guilty under the statute. Morison argued that
the term 'national defense" was too vague, but the court didn't buy it,
stating:
"Morison's first
attack on Sections 793(d) and (e) is that the term "relating to the
national defense" is impermissibly vague and fails to give fair warning of
what documents are covered by the statute. This argument relies heavily on
the Supreme Court's reasoning in Gorin v. United States, 312 U.S. 19, 85
L. Ed. 488, 61 S. Ct. 429 (1941)...
The government
has responded to this assertion by noting that the statute does contain an
intent requirement, although not the same requirement that was contained
in the Gorin statute. Sections 793(d) and (e) require that the acts be
done "willfully;" if the transmitted item is "information", "which
information the possessor had reason to believe could be used to the
injury of the United States"...
The government contends that if a defendant, "such as
Morison, wilfully transmits photographs relating to the national defense
to someone who is known by the defendant not to be entitled to receive it,
the defendant has violated 793(d) no matter how laudable his motives."
According to the plain language of the statute, the government's
interpretation is correct. Thus, although there is an intent requirement,
the "delimiting" intent to injure the United States is not present in this
statute and defendant argues that it is therefore impermissibly vague.
Unfortunately for the defendant's argument, the Fourth Circuit has
addressed this issue and found that a similar statute was not
unconstitutionally vague. In United States v. Dedeyan, 584 F.2d 36 (4th
Cir. 1978), the Fourth Circuit construed 18 U.S.C. @ 793(f),... "
PLEASE PAY CLOSE ATTENTION TO THE COURT'S FOLLOWING TWO PARAGRAPHS:
"As the District Court noted in Dedeyan, "certainly injury
to the United States could be inferred from conduct of the sort charged,"
whether that conduct involves photographing documents by one foreign agent
or release of national defense information to the press and public, where
many foreign agents and governments can have access to the information.
In Dedeyan, the
defendant was accused of knowing that the document had been abstracted by
his cousin, a Russian spy, and failed to report it. Here, the situation is
slightly different because it does not involve a foreign agent or the
classic spy scenario. Rather, the defendant is accused of releasing
classified information to the press, thus exposing that classified
information to every foreign agent and government, hostile or not, in the
world."
That is directly on point as to the leak of Plame's name to
Novak and others.
The court's decision in Morison further stated:
"Finally, the danger to the United States is just as great when this
information is released to the press as when it is released to an agent of
a foreign government. The fear in releasing this type of information is
that it gives other nations information concerning the intelligence
gathering capabilities of the United States. That fear is realized whether
the information is released to the world at large or whether it is
released only to specific spies."
The acquiescence to abide by the Government's determination
of classified information of those who sign this agreement was discussed
by the Morison Court:
"Defendant next
argues that the phrase "not entitled to receive" is also
unconstitutionally vague, in that it fails to inform a citizen of whether
his conduct is prohibited... The government has responded by pointing out
that under no circumstances is that statute unconstitutionally vague when
applied to this defendant, who clearly knew by virtue of his security
clearance and his signing of an agreement that classified information and
documents were not to be transmitted to outsiders....Applying that same
principle here, it seems clear that authorization to possess documents and
entitlement to receive them may be determined by reference to the
classification system under which the defendant worked. "
Clearly, Bush administration officials had knowledge that
the Government's decision as to what is classified and what is not, could
not be circumvented since they signed the non-disclosure agreement.
Those following the issues raised by the non-disclosure
agreement should not get bogged down by the sanctions provided for in
EXECUTIVE ORDER 13292 because the more serious legal breaches are
contained in the United States Code which has a settled line of case law
discussing everything the media pundits are now spinning.
The Morison Court continued the discussion:
"Congress has recognized the classification system and
given its support to the determination by Executive Order of who is
authorized to possess and who is not authorized to possess classified
information,...
Since these
executive orders are issued in fulfillment of the President's
Constitutional responsibilities, they have the force and effect of
law....The phrase "not entitled to receive" is not at all vague when
discussed in reference with the classification system, which clearly sets
out who is entitled to receive (those with proper security clearances and
the "need to know") and Morison was certainly aware of the proscripts of
the classification system. Defendant has argued that even if this
construction is given to the statute, the statute is impermissibly vague
because then an individual would be left to make the determination of who
has the "need to know," and therefore the right to receive classification
information. There can be no argument of such vagueness here, where the
defendant released the information to Jane's, which had neither a security
clearance or a need to know.... "
THE INTENT OF THE TREASONGATE LEAKERS IS IRRELEVANT
It matters not that Rove and others may claim they were
just setting the record straight regarding details of Ambassador Wilson's
trip. Regarding this type of defense, the Court in Morison stated:
Morison urges
that the requirement that acts be done willfully translates to a
requirement that they be done with some evil purpose and that if he acted
with an intent to inform the public he did not have the requisite evil
purpose. He urges this Court to adopt a construction of the word willfully
used in Hartzel v. United States, 322 U.S. 680, 686, 88 L. Ed. 1534, 64 S.
Ct. 1233 (1944). In that case, the court, noting that the statute was a
highly penal one restricting freedom of expression, held that the word "willful"
must be taken to mean "deliberately and with a specific purpose to do the
acts proscribed by Congress."
In another sentence, the Court referred to
this "evil purpose;" however, in the rest of the opinion the court refers
only to the specific intent to do the evil prohibited by the statute,
i.e., causing or attempting to cause insubordination, disloyalty, or
mutiny. That case did not require "evil purpose" as the defendant reads it,
but only required that the prohibited acts be done deliberately and with a
specific purpose to do that which was prohibited. In Truong Dinh Hung, 629
F.2d at 919, the court discussed the trial court's instruction that "willfully"
meant "not prompted by an honest mistake as to one's duties, but prompted
by some personal or underhanded motive" and apparently approved such an
instruction. It seems clear that the defendant here will not find much
comfort in his defense that he did what he did with good intentions,
unless he can also assert a defense that he did not do so "willfully."
So, Karl Rove and others involved who may have shared
classified information cannot assert a defense that they had "good
intentions" since their activities were "willful" in that they intended to
share the classified information (or even unclassified information
relating to the national defense which "could" lead to the USA being
injured).
The
reasons Bush administration officials may have had for willfully sharing
information about Valerie Plame's status at the CIA is totally irrelevant
as is the distinction between offering her name to the press as opposed
to simply confirming for a reporter that she worked at the CIA, regardless
of whether her CIA status was covert.
I reiterate,
if any Bush administration officials disclosed or confirmed any
information relating to the national defense that could possibly injure
the USA, such official is guilty of violating 18 USC 793. They are guilty
whether they saw the classified State Department memo or not under the
simple test of 18 USC 793 as set forth by the Court in Morison. Of course,
if they did see the State Department memo classified as SECRET, the
conviction is that much easier to prove and the penalty will probably be
more severe.
Now
we turn our attention to
United
States v. Squillacote,
221 F.3d 542, 556 (4th Cir. 2000) .
http://www.usdoj.gov/osg/briefs/2000/0responses/2000-0969.resp.html
In that case, the question presented to the court was, whether the
district court improperly defined the terms "connected with the national
defense" and "relating to the national defense" for purposes of 18 U.S.C.
793 and 794.
The Court's decision in that case cuts right through the media talking
point alleging that Valerie Plame's status was not covert. Indeed, the
issue of public knowledge of the classified information is not relevant to
the issue of whether the leaker broke the law. The Court stated:
"The term
"national defense" is a broad term which refers to the United States
military and naval establishments and to all related activities of
national preparedness.
To prove that documents, writings, photographs or
information relate to the national defense, there are two things that the
Government must prove. First, it must prove that the disclosure of the
material would be potentially damaging to the United States or might be
useful to an enemy of the United States. And second, it must prove that
the material is closely held by the United States government.
To prove that documents, writings, photographs or
information relate to the national defense, there are two things that the
Government must prove. First, it must prove that the disclosure of the
material would be potentially damaging to the United States or might be
useful to an enemy of the United States. And second, it must prove that
the material is closely held by the United States government.
"
This first test is met if the disclosure "might" be useful to an enemy of
the USA. Valerie Plame was working on weapons of mass destruction issues
at a time of war. The paragraph her name appears in on the State
Department memo was officially classified as SECRET by the US Government.
EXECUTIVE ORDER 13292, signed by President Bush defines SECRET:
"Secret" shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause serious damage
to the national security that the original classification authority is
able to identify or describe."
The information regarding Valerie Plame in the
State Department memo is statutorily defined as information which could
reasonably be expected to cause serious damage to the national security of
the USA. There is no argument available to the future defendants which can
change that status.
For purposes
of part two of the test announced by the Court in Squillacote, it is
irrelevant whether Rove or others saw the memo including the paragraph
with Valerie Plame's info marked as SECRET because the classification in
the memo of that information as being SECRET proves that the material is
closely held by the United States government.
Disclosure of that information was potentially damaging to the USA
according to 18 USC 793(d) and Executive Order 13292.
The court further stated:
"This Court
has never held that information in classified government documents
ceases to "relat[e] to the national defense," within the meaning of the
espionage statutes, whenever such information may be found somewhere in
the public domain. Nor has any court of appeals made such a holding."
So, it will not do those involved in
Treasongate any good to argue that some people in the public domain knew
Valerie Plame was a CIA agent.
The court went on to address a very similar
fact pattern:
"The Second
Circuit did not hold, as petitioners suggest, that a closely held
government document ceases to "relate to the national defense," for
purposes of the espionage statutes, whenever the information in the
document may be found in the public domain...
The court of
appeals explained that "there is a special significance to our
government's own official estimates of its strengths and weaknesses, or
those of a potential enemy," because such estimates "carry with them the
government's implicit stamp of correctness," which "in and of itself is a
fact that would be highly valuable to other countries...
Finally, if the
government had to bear the burden of proving that the information on which
an espionage prosecution is based "was not lawfully available in the
public domain" at the time of its dissemination, as petitioners urge (Pet.
15 (emphasis omitted)), the government's ability to bring such
prosecutions would be severely impaired. The government would effectively
be required "to prove, at least as to some piece of information contained
in the document, that no person anywhere in the world had ever publicly
speculated about that information"...
As the court of
appeals recognized, "[r]equiring that kind of 'proof of a negative' would
unduly hamper the government's ability to protect sensitive information
and would render successful prosecutions in cases involving closely-held
documents nearly impossible." Ibid. No court has suggested that the
government must bear such a burden."
The law does not
create an exception for releasing classified information that may already
be in the public domain. It makes no difference if Valerie Plame was known
to some people somewhere in the world as a CIA Agent.
The
applicable statutes were violated regardless. In conclusion, I find it
quite incredible that the main stream media, and for that matter the
blogosphere as well, has failed to bring these very applicable statutes
and court decisions to the immediate attention of the People of the USA.
PLEASE REPOST CITIZEN SPOOK
citizenspook@hotmail.com
http://citizenspook.blogspot.com/2005/07/treasongate-controlling-law-big.html
The Controlling Law - Big Trouble
For The White House Staff
The Controlling Law, Part 2: THE DEATH PENALTY, 18 USC 794
and the shift from GWOT to GSAVE
Total Media BLACK OUT of 18 USC 794, Federal Espionage Statute
How The White House, Wilson, Novak,
Corn & Plame Conspired
The Federal Grand Jury, FOURTH BRANCH
of the US Government
The US Attorney General's Office AND President Bush
Have NO
LEGAL AUTHORITY To Remove Patrick Fitzgerald As Special Counsel
The Challenge of 18 USC 794...
Prior High Profile Convictions Under 18 USC 794
US Court of Appeals: Special Counsel's Showing Decides
The Case
Iraq War fraud could lead to State court prosecutions for murder of
American soldiers
NIGER DOCUMENT FRAUD --Wilson and Plame May Be on
Fitzgerald's Radar for Treason Related to the Niger Document Conspiracy
Wilson Is In Cahoots With Bush Crime Family
Project Perfect Storm:
Citizen Activism against Felony Murder Resulting
from Fraud that Led to the Iraq War
July 18th Chicago Subway/Dirksen Federal Courthouse
Bomb plot
involving British MI6 assets -Part 1:Chicago Police Implicated in Cover
up?
July 18 Chicago Subway/Dirksen Federal Courthouse
Plot
Involving British MI6-Part 2: CTA Officials Deny Chicago Police Accounts
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