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Both Fox News correspondent Major Garrett and National Review White House correspondent Byron York misrepresented provisions of the 1917 Espionage Act, which prohibits the release of classified information to someone not authorized to receive it, in making the argument that it would be difficult for special prosecutor Patrick J. Fitzgerald to apply the law to the CIA leak case. The argument echoes one claim repeatedly made about the 1982 Intelligence Identities Protection Act (IIPA), which forbids the intentional disclosure of a covert intelligence officer's identity. Further, Garrett advanced the baseless claim that Fitzgerald's investigation into the alleged leak of Valerie Plame's identity as a CIA operative by Bush administration officials "started" as a probe into whether the alleged disclosure violated the IIPA.
On the October 18 edition of Fox News' Special Report with Brit Hume, Garrett noted that Fitzgerald is reportedly considering whether the alleged leakers violated the Espionage Act. Garrett then asserted that the law "only forbids a citizen from providing information about the U.S. military, quote, 'with intent or reason to believe that the information is to be used to the injury of the United States or to the advantage of any foreign nation.' " He went on to report that legal experts "say Fitzgerald may find it hard to bring indictments for violations of either" the Espionage Act or the IIPA.
But Garrett's description of the law is false on two counts. First, the Espionage Act does not "only" prohibit the disclosure of classified materials by citizens "with intent or reason to believe that the information is to be used" against the U.S. The law is, in fact, in multiple sections and delineates various acts that would constitute violations. The requirement described by Garrett for establishing a violation of the act -- that the alleged perpetrator must know that the information will be used to harm the U.S. -- applies to those sections pertaining to the illegal obtainment of information. But section (d) of the act addresses those who are authorized to possess the classified information, but who then pass it on to someone not authorized to possess it, knowing that it could be used to harm the United States:
(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.
Second, the Espionage Act addresses "information relating to the national defense," as section (d) states, and not just, as Garrett claimed, "information about the U.S. military."
Garrett also repeated the baseless claim that Fitzgerald's two-year investigation "started" as a probe into whether the alleged leak violated the IIPA. But neither the original CIA referral of the case to the Department of Justice nor Fitzgerald's delegation as special prosecutor limited the investigation to that law or, apparently, even mentioned it, as Media Matters has previously noted.
York, like Garrett, also misrepresented the statute in depicting Fitzgerald's prosecutorial options as very narrow. He reported in his October 19 National Review column, headlined "Indicted? For What?" that "there are questions about whether the Espionage Act provides an appropriate basis on which to charge administration officials in the Plame matter." In his discussion of the law, York included the full text of section (d) and asserted that the law's "specificity -- code book, signal book, blueprint -- suggests that the act's authors had very circumscribed crimes in mind." He went on to conclude that applying the Espionage Act "could prove just as difficult as prosecuting under the Identities law." But whether or not prosecutions under the Espionage Act are in fact difficult to carry out successfully, York's claim regarding the "specificity" of the statute is false. The section sets out some specific materials, the disclosure of which would violate the law, but also includes a general clause applying to "information relating to the national defense."
From the October 18 edition of Fox News' Special Report with Brit Hume:
GARRETT: Special prosecutor Patrick Fitzgerald's original criminal investigation into the leaking of undercover CIA operative Valerie Plame's identity could well conclude with charges unrelated to that crime.
VICTORIA TOENSING (former Justice Department official): It's not unusual that an investigation starts and somebody thinks it's a certain crime and it morphs into another crime.
GARRETT: Fitzgerald started his investigation to see if any White House officials violated the 1982 Intelligence Identities Protection Act. Intense speculation has centered on White House deputy chief of staff Karl Rove and vice presidential chief of staff Lewis "Scooter" Libby. Published reports also suggest other Cheney staffers are under scrutiny. A violation of the Intelligence Identities Act occurs when a government official, quote, "intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information." But there are two other key legal requirements. To prosecute, Fitzgerald must prove the official knew Plame was undercover and that the CIA was trying to keep her identity a secret.
Speculation has also arisen that Fitzgerald may apply the 1917 Espionage Act, but that law only forbids a citizen from providing information about the U.S. military, quote, "with intent or reason to believe that the information is to be used to the injury of the United States or to the advantage of any foreign nation." Legal experts say Fitzgerald may find it hard to bring indictments for violations of either of these two laws. Nothing about his legal mandate, however, prevents Fitzgerald from pursuing other crimes.