Last week, the Justice Department issued a new indictment of Lawrence Franklin, the Pentagon official accused of passing secrets to officials of AIPAC, the pro-Israel lobbying outfit. The indictment is bad news for the Bush White House and Karl Rove.

That's not only because the Franklin case is embarrassing for the administration, the Pentagon, and their neocon allies. (Franklin worked with Douglas Feith, who until recently was a senior Pentagon official close to the neocons.) The Franklin indictment is a sign that Rove and any other White House aide involved in the Plame/CIA leak might be vulnerable to prosecution under the Espionage Act.

Special prosecutor Patrick Fitzgerald--who is not involved in the Franklin prosecution--has not had to state publicly what sort of case he is trying to build in the Plame/CIA leak matter. The most obvious one would be based on the charge that the leaker violated the Intelligence Identities Protection Act. But that law was narrowly drawn, and to win a conviction Fitzgerald would have to prove that Rove or any other leaker knew that Valerie Wilson was working under cover at the CIA. There are, however, other laws under which Fitzgerald might charge the CIA/Plame leakers. The Franklin indictment points the way. (And criminal law aside, by sharing classified information with at least two reporters--Valerie Wilson's employment at the CIA was classified--Rove committed an offense that violated various rules and would get most government workers seriously punished or dismissed.)

The Franklin indictments notes:

On or about December 8, 1999, FRANKLIN signed a Classified Information Nondisclosure Agreement, a Standard Form 312 (SF-312). In that document FRANKLIN acknowledged that he was aware that the unauthorized disclosure of classified information by him could cause irreparable injury to the United States or could be used to advantage by a foreign nation and that he would never divulge classified information to an unauthorized person. He further acknowledged that he would never divulge classified information unless he had officially verified that the recipient was authorized by the United States to receive it. Additionally, he agreed that if he was uncertain about the classification status of information, he was required to confirm from an authorized official that the information is unclassified before he could disclose it.

Yet, the indictment alleges, Franklin passed classified information to Steven Rosen and Keith Weissman, two senior AIPAC officials. And the indictment claims Rosen and Weissman shared this information with Israel. Consequently, the indictment charges Franklin, Rosen and Weissman with "conspiracy to communicate National Defense Information under sections 793(d) and 793(e) of Title 18, United States Code. And Franklin was charged with three counts of "communication of National Defense Information"--not conspiracy--under section 793(d). He was also charged with one count of "conspiracy to communicate classified information" to a foreign government.

Let's look at sections 793(d) and (e). The first generally applies to government officials, the second to nongovernment officials. Both sections make it a crime to transmit national defense information--and the identity of an undercover CIA officer would probably count as national defense information--to a person unauthorized to receive it (such as a reporter). These sections define violators as

(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.

(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. [Emphasis added.]

Rove, like Franklin, had to sign SF-312. As Rep. Henry Waxman noted in a short report he released on the Rove leak, this nondisclosure agreement states, "I will never divulge classified information to anyone" unauthorized to receive such information. Rove broke that vow. And Executive Order 12958--which Bush updated on March 25, 2003-- says that "officers and employees of the United States Government...shall be subject to appropriate sanctions if they knowingly, willfully, or negligently...disclose to unauthorized persons information properly classified." The sanctions include "reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, or other sanctions." So Rove ought to be slapped with one of those punishments.

But worse for Rove--from a legal perspective--is section 793. Rove did communicate classified information which could be used "to the injury of the United States" to a person "not entitled to receive it." The information was the identity of an undercover intelligence official working on anti-WMD operations. Such information could be used to thwart or undermine past or present CIA operations and assets connected to Valerie Wilson. The persons "not entitled" to received this info were Robert Novak and Matt Cooper (and perhaps there were more).

I am--as I've said before--no lawyer. But given the letter of the law in section 793, it seems to me there is a case to be made that Rove essentially did what Franklin did. There may be a difference in intent or awareness. Perhaps Rove did not know he was passing on classified information that could be used to the detriment of the United States (though he should have realized that had he given the matter a moment or two of thought), and it seems that Franklin had to know he was sharing classified material with outsiders. But section 793 does not say a violator must be aware he or she is passing on information that could cause harm to the United States if exposed. It only sets as a criterion that the violator "willfully" communicates this information. I assume that means a purely accidental slip of the lip would not be a crime. But Rove--who told at least two reporters about Valerie Wilson's CIA position--cannot argue he was not "willfully" communicating this information to others.

So might Fitzgerald have a case under section 793? Journalists don't like these sorts of prosecutions, for it brings us close to an official secrets act (like the one that exists in Britain). If prosecutors chased after government leakers--say those who leaked intelligence showing that the White House's case for war in Iraq was weak--the public would suffer. And the Justice Department's indictment of Rosen and Weissman--nongovernment officials--for passing along classified information is also worrisome for reporters who pass along classified information by publishing and airing stories that contain secret information. But Fitzgerald has certainly demonstrated he's not too concerned about pursuing legal cases and setting legal precedents that are bad for journalism. And that's why Rove ought to be sweating the Franklin indictment.
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Live From Cape Cod! If you're on Cape Cod this evening, I'll be speaking at the Payomet Theater in Truro (on Route 6, just south of the 6A turn-off) at 8 pm. The gig's been billed as an evening of political "insight, gossip and outrage." I'll think of something.
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Goobye, Peter Jennings. I don't have any stories to share about Peter Jennings. But of all the main anchors of recent years, Jennings struck me as the one who was most mindful of the world beyond US shores. This is not to denigrate anyone else. Nor is it a suggestion that Jennings was able on his own to burst the parameters that govern--and diminish--network news. But I have no doubt he did what he thought he could to inform Americans about life outside the United States. It takes a Canadian (though he recently became a US citizen). In any event, whenever I had to choose one of the Big Three, he was often my pick. So farewell, Peter Jennings. Happy trails.
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Stranded! My wife booked us into a cabin this week with no phone line and, of course, no broadband. So posting will suffer. As I've said before, it's DIY time. Argue, debate, discourse, concur and post among yourselves in the comments section below.

Posted by David Corn at August 8, 2005 12:43 PM