We've heard it all. "No underlying crime committed." "She wasn't covert under the statute." "They did not knowingly release classified information."
The right has been caught with its hand in the metaphoric cookie-jar, leaking classified information and damaging national security in order to punish one of their detractors. One player, Scooter Libby, has been convicted of lying about this leak, leaving a cloud over other administration officials, such as Vice President Cheney and Presidential Advisor Rove. Desperate to limit the damage, the administration's apologists now cling to technicalities, narrow definitions, and outright lies in order to confuse the public about what they have done.
We saw it today in the testimony of one Victoria Toensig, where under intense questioning by congressional representatives, she maintained that Ms. Valerie Plame was not covert "under the statute." The statute in question was the Intelligence Identities Protection Act, and Ms. Toensig, a supposed expert on the law, gave an answer that is at best dubious, and at worst a malicious lie.
The IIPA is a law under which it is difficult to get a conviction. To convict, it is not enough that a classified identity be exposed. The Act requires one to have knowledge that the identity being disclosed is classified information. I have little doubt that at least some of the administration officials involved had knowledge that Ms. Plame was a covert agent. To prove so in court is another thing, especially when those with knowledge of the situation (Libby) commit perjury in front of Grand Juries and obstruct justice.
The right likes to argue that the mere fact that Ms. Plame's identity as a covert agent was disclosed is not a crime. This is true under the IIPA, but the IIPA is not the only part of the U.S. Code that is relevant to the protection of classified information. The Espionage Act of 1917 also prohibits the release of classified material, and this Act is far more broad. So let's take a look at Title 18, Part I, Chapter 37, Section 793 of the U.S. Code.
Subsections (f) and (g) are as follows:
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense,
(1) 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 lost, stolen, abstracted, or destroyed, or
(2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer--
Shall be fined under this title or imprisoned not more than ten years, or both.
(emphasis mine)
(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.
I included the subsection relevant to conspiracies also because, despite the fact that there is little if any hard evidence that there was a conspiracy to release Ms. Plame's affiliation with the CIA, with several top administration officials leaking like a sieve, the circumstantial evidence is overwhelming.
This Act makes it criminal for someone in a position of trust to allow the release of classified information, regardless of whether or not that person knowingly and intentionally releases that information. Even if an administration official does not know that information they possess is classified, if they release that information without performing due diligence, they are acting negligently.
Some might argue that it is improper to charge someone under a provision established 90 years ago, even though it is still good law. In response, I direct them to the case of Samuel Morrison, who was convicted under the Espionage Act during the Reagan Administration. Morrison released classified photos of a Soviet aircraft carrier to a magazine. He did not realize that those photos were classified. Their release may have damaged national security, but certainly far less than it was damaged by the exposure of Ms. Plame and by extension the intelligence networks she was affiliated with.
I personally think that the prosecution of Mr. Morrison was probably overblown, but if he deserved to be convicted, those in the administration who leaked Ms. Plame's identity certainly deserve the same. Regardless of whether or not the Espionage Act should be amended, as it stands, those who allowed the leak of Ms. Plame's identity are criminals.
They have committed espionage against the United States and no matter how much the right wishes it weren't so, that is the truth.