18 U.S.C. 793, the Espionage Act: what is it and can Rove be indicted?

[npincus]

http://www.markarkleiman.com/archives/valerie_plame_/2003/10/the_espionage_act.php

Espionage has been mentioned as one of the possible crimes that Rove may be indicted for in the Plame case. This would seem to be the essence of the treacherous crime committed agains Plame, and our country. Precisely what is it, and what is the penalty?

Here are relevant portions of the Espionage Act: (cited from the above link, a 2003 blog entry)

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>

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.


Now, the blogger's analysis of whether this would or could be used to prosecute the sources (Rove and Libby not yet outed as primary leakers)


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).


It sounds promising to me. Espionage is the count I want most- it directly accuses him of being a traitor to this country.


{*note to Moderator: kept to 4 paragraph limit on author's original text- above portions copied are sections of the law)

[Beetwasher]

1. Yes, This Could In Fact Be Very Relevant

n/t

[bmcatt]

2. 18 USC 793 and 18 USC 794

Both are potentially relevant. I suggest looking at citizenspook's blog information. Very interesting reading, I thought:

Part 1 and Part 2.

Also, kick/rec.

[genius]

3. The Espionage Act has always been used to arrest war protesters

This is what was used to break up the IWW and to imprison labor leaders for ten years for speaking out against the First World War. Someone made a movie about the American Revolution and because it made one of our allies (Britain) in WWI look bad, the film-maker got eight years.