September 7, 2005


Legal Experts Call Current Law A Poor Fit for Leak Prosecutions (Christopher Lee, September 7, 2005, Washington Post)

[L]egal 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."

Since we can be reasonably certain that no one in the Administration was actually a paid informant for the media, we can see why no charges have been forthcoming. Someone may have run afoul of a perjury trap, but that's going to be the worst of it.

Posted by Orrin Judd at September 7, 2005 12:00 AM

Isn't the prosecutor's report due soon?

Posted by: erp at September 7, 2005 2:18 PM