Legal Experts Call Current Law A Poor Fit for Leak Prosecutions
By Christopher Lee
Washington Post Staff Writer
Wednesday, September 7, 2005; A23
Convictions for leaking sensitive government information to the media are almost as rare as sightings of the ivory-billed woodpecker.
Only twice have government employees gone to prison for such misdeeds. And legal experts say prosecutors will have a hard time putting away anyone in the administration for violating the Intelligence Identities Protection Act in the revelation of CIA operative Valerie Plame's identity in 2003.
The bar for breaking the 1982 law is high. Whoever makes the disclosure must know that the person was a "covert agent" and must intentionally reveal the agent's identity to someone not authorized to know it.
There is, however, another statute that federal officials have used to go after government leakers. Some legal experts say it is not out of the question that prosecutors in the Plame case could bring it out again -- although it, too, seems a long shot.
The provision, Section 641 in Title 18 of the U.S. Code, nominally deals with prohibitions on the embezzlement of public money, property or records for private use. It typically would be used to go after a federal employee who, say, absconds with government laptops.
Prosecutors used the statute -- somewhat creatively, legal experts say -- to help build successful cases against Samuel L. Morison, a former Navy intelligence analyst who was sentenced to two years in prison in 1985 after being convicted of espionage and theft in leaking secret U.S. spy satellite photographs to a British magazine, and Jonathan Randel, a former Drug Enforcement Agency intelligence research specialist who in 2003 was sentenced to a year in prison for selling restricted information.
The statute "is used by the government from time to time in lieu of not having a criminal prohibition on leaking classified information, generally," said William Banks, a national security law expert at Syracuse University. "It isn't a good fit, but it's the best available."
Kevin M. Goldberg, a partner at Cohn and Marks LLP in Washington and an expert on First Amendment issues, said that prosecutors might try to use it.
"I think that's a really bad precedent to set, however," Goldberg said. "Essentially, you are just creating almost an Official Secrets Act in which all government information belongs to the government, and can never be given out to a member of the public."
Morison, who worked at the Naval Intelligence Support Center in Suitland, sent Jane's Defence Weekly, for which he moonlighted as an editor, three photographs of the first Soviet nuclear aircraft carrier under construction at a Black Sea shipyard. His attorneys unsuccessfully argued that their client was a supporter of President Ronald Reagan and bigger defense budgets who wanted to publicize the Soviet threat.
Randel provided information from a DEA database to the Times of London newspaper indicating that the name of Lord Michael Ashcroft -- a dual citizen of Britain and Belize who was treasurer of the Conservative Party -- was in agency files used in investigations of drug trafficking.
The newspaper cited the information in stories on Ashcroft and his business dealings in Belize, stories that Ashcroft complained falsely suggested that he was a target of DEA investigations into drug trafficking. (After Ashcroft filed a libel suit, the paper published a statement saying there was no evidence he had been suspected of any drug-related crime.) Prosecutors said Randel was paid $13,000 for the information, which was sensitive but not classified. The newspaper said the money was to cover Randel's expenses and time when he traveled to Britain to help the newspaper prepare a defense to Ashcroft's libel suit.
At Randel's sentencing, U.S. District Judge Richard W. Story of the Northern District of Georgia said: "This is like the drunk driver who gets home without killing somebody. . . . No agent was killed as a result of the information that was leaked and no investigation was compromised, but the risk that was created was certainly there. And that is of grave concern."
In an essay published July 15 on CNN.com, former Nixon White House Counsel John Dean argued that White House Deputy Chief of Staff Karl Rove could be vulnerable on the same grounds. Time magazine reporter Matthew Cooper has said that Rove told him in 2003 that Plame, the wife of President Bush critic Joseph C. Wilson IV, worked for the CIA, but that Rove said nothing about her being a covert operative.
"Rove had no idea what the specific consequences of giving a reporter the name of a CIA agent [about whom he says he knew nothing] would be," Dean wrote. ". . . [I]f the risk Randel was taking was a 'tremendous' risk, surely Rove's leak was monumental." Rove has said he did nothing illegal.
Several experts disagree with Dean's assessment, saying the embezzlement statute is an especially poor fit for the Plame case. For one thing, it requires that there be an intent to convert the purloined property or record -- the "thing of value" -- to one's use or gain. Morison was paid as an editor for Jane's. Randel got money from the Times of London. But political gain does not count, the experts said.
"This is for people who steal public property. This is used all the time, but not for situations like this," Banks said. "Because there isn't anybody in this for gain -- for pecuniary gain -- I think it's a bit of a stretch."
Victoria Toensing, a Washington lawyer who helped write the Intelligence Identities Protection Act, said prosecutors would "absolutely never" try to use the embezzlement statute in the Plame case.
Dean "is trying to put the stepsister's foot in Cinderella's shoe," she said. "What was converted? . . . Where is the 'value' given to Karl Rove? . . . The story shouldn't even be written, because it's so off the wall to give it any credence."
© 2005 The Washington Post Company
Washington Post Staff Writer
Wednesday, September 7, 2005; A23
Convictions for leaking sensitive government information to the media are almost as rare as sightings of the ivory-billed woodpecker.
Only twice have government employees gone to prison for such misdeeds. And legal experts say prosecutors will have a hard time putting away anyone in the administration for violating the Intelligence Identities Protection Act in the revelation of CIA operative Valerie Plame's identity in 2003.
The bar for breaking the 1982 law is high. Whoever makes the disclosure must know that the person was a "covert agent" and must intentionally reveal the agent's identity to someone not authorized to know it.
There is, however, another statute that federal officials have used to go after government leakers. Some legal experts say it is not out of the question that prosecutors in the Plame case could bring it out again -- although it, too, seems a long shot.
The provision, Section 641 in Title 18 of the U.S. Code, nominally deals with prohibitions on the embezzlement of public money, property or records for private use. It typically would be used to go after a federal employee who, say, absconds with government laptops.
Prosecutors used the statute -- somewhat creatively, legal experts say -- to help build successful cases against Samuel L. Morison, a former Navy intelligence analyst who was sentenced to two years in prison in 1985 after being convicted of espionage and theft in leaking secret U.S. spy satellite photographs to a British magazine, and Jonathan Randel, a former Drug Enforcement Agency intelligence research specialist who in 2003 was sentenced to a year in prison for selling restricted information.
The statute "is used by the government from time to time in lieu of not having a criminal prohibition on leaking classified information, generally," said William Banks, a national security law expert at Syracuse University. "It isn't a good fit, but it's the best available."
Kevin M. Goldberg, a partner at Cohn and Marks LLP in Washington and an expert on First Amendment issues, said that prosecutors might try to use it.
"I think that's a really bad precedent to set, however," Goldberg said. "Essentially, you are just creating almost an Official Secrets Act in which all government information belongs to the government, and can never be given out to a member of the public."
Morison, who worked at the Naval Intelligence Support Center in Suitland, sent Jane's Defence Weekly, for which he moonlighted as an editor, three photographs of the first Soviet nuclear aircraft carrier under construction at a Black Sea shipyard. His attorneys unsuccessfully argued that their client was a supporter of President Ronald Reagan and bigger defense budgets who wanted to publicize the Soviet threat.
Randel provided information from a DEA database to the Times of London newspaper indicating that the name of Lord Michael Ashcroft -- a dual citizen of Britain and Belize who was treasurer of the Conservative Party -- was in agency files used in investigations of drug trafficking.
The newspaper cited the information in stories on Ashcroft and his business dealings in Belize, stories that Ashcroft complained falsely suggested that he was a target of DEA investigations into drug trafficking. (After Ashcroft filed a libel suit, the paper published a statement saying there was no evidence he had been suspected of any drug-related crime.) Prosecutors said Randel was paid $13,000 for the information, which was sensitive but not classified. The newspaper said the money was to cover Randel's expenses and time when he traveled to Britain to help the newspaper prepare a defense to Ashcroft's libel suit.
At Randel's sentencing, U.S. District Judge Richard W. Story of the Northern District of Georgia said: "This is like the drunk driver who gets home without killing somebody. . . . No agent was killed as a result of the information that was leaked and no investigation was compromised, but the risk that was created was certainly there. And that is of grave concern."
In an essay published July 15 on CNN.com, former Nixon White House Counsel John Dean argued that White House Deputy Chief of Staff Karl Rove could be vulnerable on the same grounds. Time magazine reporter Matthew Cooper has said that Rove told him in 2003 that Plame, the wife of President Bush critic Joseph C. Wilson IV, worked for the CIA, but that Rove said nothing about her being a covert operative.
"Rove had no idea what the specific consequences of giving a reporter the name of a CIA agent [about whom he says he knew nothing] would be," Dean wrote. ". . . [I]f the risk Randel was taking was a 'tremendous' risk, surely Rove's leak was monumental." Rove has said he did nothing illegal.
Several experts disagree with Dean's assessment, saying the embezzlement statute is an especially poor fit for the Plame case. For one thing, it requires that there be an intent to convert the purloined property or record -- the "thing of value" -- to one's use or gain. Morison was paid as an editor for Jane's. Randel got money from the Times of London. But political gain does not count, the experts said.
"This is for people who steal public property. This is used all the time, but not for situations like this," Banks said. "Because there isn't anybody in this for gain -- for pecuniary gain -- I think it's a bit of a stretch."
Victoria Toensing, a Washington lawyer who helped write the Intelligence Identities Protection Act, said prosecutors would "absolutely never" try to use the embezzlement statute in the Plame case.
Dean "is trying to put the stepsister's foot in Cinderella's shoe," she said. "What was converted? . . . Where is the 'value' given to Karl Rove? . . . The story shouldn't even be written, because it's so off the wall to give it any credence."
© 2005 The Washington Post Company
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