Update [2005-7-10 15:30:25 by kant]: A question lifed from the comments: What are Fitzgerald's rights/limitations in accessing evidence from other FBI investigations in order to show a pattern of revelations, i.e. see the Agee provision in Kleiman's argument below?

Update [2005-7-10 7:42:42 by kant]:I wonder if anyone in the White House Press Corps reads Kos? If so, could someone ask Scotty, if he thinks the Espionage Act applies to the Plame leak?

It seems clear from the eight pages blacked out from Judge Tatel's concurrence, that Patrick Fizgerald is working closely with the CIA to understand the true ramifications of the crime committed in the Plame case.

Beyond the IIPA and perjury and obstruction of justice, wouldn't you think that if ever a case existed to use the Espionage Act... this is it.

From Lawrence O'Donnell to John Dean, to two of the Circuit Judges, it seems that those with experience in these matters believe we have something much more serious than "he said/he said."

Let's take a look (below the fold) and see why Espionage may well be the appropriate name for what has gone on here...


Courtjester and TPM: Fitzgerald and CIA believe that Plame is part of an ongoing series of leaks severely damaging national security.

Lawrence O'Donnell: Judge Tatel's concurrence in Miller suggests that this is not about perjury... AND it is about a very serious crime.

Mark A. Kleiman: Judge Hogan thinks that the information [Judy Miller] was given and her potential use of it was a crime.

John Dean: Leaking classified information is a crime under the Espionage Act with no exceptions for good intentions.

Dec. 2003, MSNBC documentary evidence: Cheney's office and Hannah specifically was "a principal point of contact" with Chalabi's INC to receive and disseminate intelligence.

Feb. 2004, Richard Sale (UPI):  FBI had "hard evidence" that Hannah and Libby were involved in the outing of Plame.

June 2004, USA Today reported that the FBI had begun interviews to determine who might have told Chalabi that the CIA had cracked Iranian codes - info which Chalabi passed on to Iran.  

When you put all of this together, it sure feels like Espionage Act prosecutions are in the offing... Wouldn't you think?

Let's start with Courtjester and Josh Marshall...

Seems Fitzgerald aggressively investigated another Bush White House leak in late 2001 and early 2002.

Fitzgerald had been investigating three Islamic charities accused of supporting terrorism -- the Holy Land Foundation, the Global Relief Foundation, and the Benevolence International Foundation.  But just before his investigators could swoop in with warrants, two of the charities in question got wind of what was coming and, apparently, were able to destroy a good deal of evidence.

What tipped them off were calls from two reporters at the New York Times who'd been leaked information about the investigation by folks at the White House.  

One of those two reporters was Judy Miller.

I find all of this particularly interesting in light of the suggestion by Sherlock Google and his commenters that either Tenet or Pavitt may have been the source for the original leak of the info that two administration officials had contacted at least 6 reporters with the Plamestory.

Remember Tenet and Pavit, if they gave testimony to this grand jury, probably gave them a lot of backstory.  Also, they are testifying in a time of War... And intelligence breaches in a time of War, are serious which will not be lost on grand jurors who live in one of the cities targeted for terror.  CIA surely knew about the previous leak to Judy, but it was out of their jurisdiction. Nevertheless I'll bet they knew who the leakers were.

So if CIA knew who in the White House was leaking to Judy, and they later find out that person outed one of their own, they know who the chief leak launderers are.  Also remember, Tenet/Pavit hate Chalabi and Chalabi is Judy's main source re: chemical weapons in the runup to war.  So they are keeping their eyes on who in the White House is is encouraging the Chalabi/Judy relationship.

This all lends credence to the notion that Fitzgerald and Tenet/Pavit are teaming up here in the belief that the country was betrayed in a time of War.  

Here is O'Donnell

In February, Circuit Judge David Tatel joined his colleagues' order to Cooper and Miller despite his own, very lonely finding that indeed there is a federal privilege for reporters that can shield them from being compelled to testify to grand juries and give up sources. He based his finding on Rule 501 of the Federal Rules of Evidence, which authorizes federal courts to develop new privileges "in the light of reason and experience." Tatel actually found that reason and experience "support recognition of a privilege for reporters' confidential sources." But Tatel still ordered Cooper and Miller to testify because he found that the privilege had to give way to "the gravity of the suspected crime."

Judge Tatel's opinion has eight blank pages in the middle of it where he discusses the secret information the prosecutor has supplied only to the judges to convince them that the testimony he is demanding is worth sending reporters to jail to get. The gravity of the suspected crime is presumably very well developed in those redacted pages. Later, Tatel refers to "[h]aving carefully scrutinized [the prosecutor's] voluminous classified filings."

Some of us have theorized that the prosecutor may have given up the leak case in favor of a perjury case, but Tatel still refers to it simply as a case "which involves the alleged exposure of a covert agent." Tatel wrote a 41-page opinion in which he seemed eager to make new law -- a federal reporters' shield law -- but in the end, he couldn't bring himself to do it in this particular case. In his final paragraph, he says he "might have" let Cooper and Miller off the hook "[w]ere the leak at issue in this case less harmful to national security."

Tatel's colleagues are at least as impressed with the prosecutor's secret filings as he is. One simply said "Special Counsel's showing decides the case."

All the judges who have seen the prosecutor's secret evidence firmly believe he is pursuing a very serious crime, and they have done everything they can to help him get an indictment.

Here is my post from a few days ago, citing John Dean's analysis of the application of the Espionage Act to this case.

The Espionage Act of 1917  

Sec. 1


(e) whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note, or information, relating to the national defence, through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be list, stolen, abstracted, or destroyed, shall be punished by a fine of not more than $10,000, or by imprisonment for not more than two years, or both.


Sec. 5

Whoever harbours or conceals any person who he knows, or has reasonable grounds to believe or suspect, has committed, or is about to commit, an offence under this title shall be punished by a fine of not more than $10,000 or by imprisonment for not more than two years, or both.

All of this talk about Rove's misdeeds and the Cooper and Miller testimony focuses on the Intelligence Identities Protection Act of 1982.  But look at the above - much older - statute.

John Dean - of all people - pointed out the following re: that statute...

The Espionage Act of 1917

The Reagan Administration effectively used the Espionage Act of 1917 to prosecute a leak - to the horror of the news media. It was a case that was instituted to make a point, and establish the law, and it did just that in spades.

In July 1984, Samuel Morrison - the grandson of the eminent naval historian with the same name - leaked three classified photos to Jane's Defense Weekly. The photos were of the Soviet Union's first nuclear-powered aircraft carrier, which had been taken by a U.S. spy satellite.

Although the photos compromised no national security secrets, and were not given to enemy agents, the Reagan Administration prosecuted the leak. That raised the question: Must the leaker have an evil purpose to be prosecuted?

The Administration argued that the answer was no. As with Britain's Official Secrets Acts, the leak of classified material alone was enough to trigger imprisonment for up to ten years and fines. And the United States Court of Appeals for the Fourth Circuit agreed. It held that the such a leak might be prompted by "the most laudable motives, or any motive at all," and it would still be a crime. As a result, Morrison went to jail.

The Espionage Act, though thrice amended since then, continues to criminalize leaks of classified information, regardless of the reason for the leak. Accordingly, the "two senior administration officials" who leaked the classified information of Mrs. Wilson's work at the CIA to Robert Novak (and, it seems, others) have committed a federal crime.

Not only are Rove, Miller and Cooper open to prosecution under this statute, but a number of people on the White House Iraq group as well.

Why is this part of the law getting no play?  Are Rove's people trying to frame it that way? Let's air this out.

Also take a look at analysis of Mark A. Kleiman the application of the Espionage Act to the known facts in this case...

1. Whatever the drafters wanted, the law says what it says. It says that a non-governmental official can only get nailed for a pattern of revelations: that's the "Agee" provision. But it also says that an official can get nailed for doing it once. There's not a trace of ambiguity in the language. Either Prof. Codevilla's memory and capacity to parse a sentence are defective, or he's letting partisan passion blind him to obvious realities (as I do when I try to handicap elections).

  1. The Espionage Act applies. Unless it's a dead letter -- which the Morison case suggests it isn't -- revealing Plame's identity was a crime. I'm puzzled why any prosecutor would bother with IIPA when the Espionage Act is sitting right there.

  2. False statements to investigators are criminal, even if the underlying conduct wasn't a crime.

As confident as I was in that line of reasoning, I'm delighted to find my position supported by the one neutral party in the best position to know both the evidence in the case and the law relating to that evidence: the presiding judge.

His language today, as reported by the Washington Post, is nothing short of startling:

[Chief U.S. District Judge Thomas F.] Hogan said Miller was mistaken in her belief that she was defending a free press. He stressed that the government source she "alleges she is protecting" had already waived her promise of confidentiality. He said her source may have been providing information not to shed light on government secrets but to try to discredit an administration critic.

"This is not a case of a whistle-blower" revealing secret information to Miller about "dangers at a nuclear power plant," Hogan said. "It's a case in which the information she was given and her potential use of it was a crime. . . . This is very different than a whistle-blower outing government misconduct."

"The information she was given ... was a crime." So much for the "runaway prosecutor pursuing non-existent crimes" theory. With Cooper talking, it looks to me as if at least one person with White House mess privileges is going down, hard.

Footnote: Note that under IIPA a reporter's use of information, except as part of an Agee-type "pattern," wouldn't be a crime. So for the judge to say that Miller's potential use of the information would have been a crime, the prosecutor must be thinking of Espionage Act prosecution, and the judge must think that's plausible.

Second footnote Hogan's remarks seem hard to square with the theory that's been making the rounds the past couple of days that Miller herself might have been the source of the Plame revelation. I liked that theory because it seemed the best explanation for media lethargy around the subject. I suppose some part of it might still be true, but I'd give longer odds now than I would have yesterday. And Joseph Wilson's calling Miller's jailing "collateral damage" analogous to the damage done to his wife suggests that he doesn't think of Miller as the villain of the piece.

Here is the relevant part of the UPI piece...

'Hard Evidence' Shows Cheney's Staff Outed CIA Operative


Feb 6, 2004, 08:22

Federal law-enforcement officials said that they have developed hard evidence of possible criminal misconduct by two employees of Vice President Dick Cheney's office related to the unlawful exposure of a CIA officer's identity last year. The investigation, which is continuing, could lead to indictments, a Justice Department official said.

According to these sources, John Hannah and Cheney's chief of staff, Lewis "Scooter" Libby, were the two Cheney employees. "We believe that Hannah was the major player in this," one federal law-enforcement officer said. Calls to the vice president's office were not returned, nor did Hannah and Libby return calls.

The strategy of the FBI is to make clear to Hannah "that he faces a real possibility of doing jail time" as a way to pressure him to name superiors, one federal law-enforcement official said.

I wonder what Hannah and Libby had to say?  And how will it jibe with what Rove has to say?

Here is the MSNBC piece...

For months, Cheney's office has denied that the veep bypassed U.S. intelligence agencies to get intel reports from the INC. But a June 2002 memo written by INC lobbyist Entifadh Qunbar to a U.S. Senate committee lists John Hannah, a senior national-security aide on Cheney's staff, as one of two `U.S. governmental recipients' for reports generated by an intelligence program being run by the INC and which was then being funded by the State Department. Under the program, `defectors, reports and raw intelligence are cultivated and analyzed'; the info was then reported to, among others, `appropriate governmental, non-governmental and international agencies.' The memo not only describes Cheney aide Hannah as a `principal point of contact' for the program, it even provides his direct White House telephone number. The only other U.S. official named as directly receiving the INC intel is William Luti, a former military adviser to former House Speaker Newt Gingrich who, after working on Cheney's staff early in the Bush administration, shifted to the Pentagon, where he oversaw a secretive Iraq war-planning unit called the Office of Special Plans.

And finally, the piece de resistance from USA Today ...

FBI probing whether Chalabi gave Iran data

By Kevin Johnson and Barbara Slavin, USA TODAY

WASHINGTON -- The FBI is investigating whether former Iraqi exile Ahmad Chalabi obtained sensitive U.S. information about Iran's intelligence program and then passed it on to Iranian authorities, according to two U.S. officials who have been briefed on the investigation.

The FBI has begun interviews to determine who might have told Chalabi that U.S. intelligence officials had intercepted and cracked secret Iranian codes for transmitting classified information, according to one of the officials.

The investigation is deemed especially sensitive because it is likely to involve questioning officials from other government agencies, including the Pentagon, who might have had access to the information. In such cases, it is common for officials to comment to reporters only if they are not identified.

If Iran learned that its intelligence was being intercepted by the United States and then changed its communication codes, that would hinder U.S. intelligence-gathering on a nation that President Bush says is a nuclear threat.

Using the INC to exchange classified intelligence information was clearly part of the coordinated effort to sell the Iraq War and was a violation of the letter and the spirit of Espionage Act.  So was outing Valerie Plame.  Don't you think Fitzgerald sees this?

Originally posted to kant on Sun Jul 10, 2005 at 01:22 AM PDT.

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