Jack Shafer (Via Glenn Reynolds) quotes a New York Times reporter for the proposition that the prosecutor in the Plame case (Patrick J. Fitzgerald) might be readying charges under an old espionage statute:

Under the espionage statute, continues Johnston, "a government official or a private citizen who passed classified information to anyone else in or outside the government could potentially be charged with a felony, if they transferred the information to someone without a security clearance to receive it."

That's not my reading of the statute supplied, which says the following:

Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished .... (Emphasis supplied.)

Remember, intent is an element of the crime which must be proven beyond a reasonable doubt.

Hell even the act's title is "Gathering or delivering defense information to aid foreign government."

Does anyone really think that's what happened here?

I think any such case brought under Section 794 statute should be laughed out of court.

But the New York Times quotes the same statute as follows:

One new approach appears to involve the possible use of Chapter 37 of the federal espionage and censorship law, which makes it a crime for anyone who "willfully communicates, delivers, transfers or causes to be communicated" to someone "not entitled to receive it" classified information relating the national defense matters.

Under this broad statute, a government official or a private citizen who passed classified information to anyone else in or outside the government could potentially be charged with a felony, if they transferred the information to someone without a security clearance to receive it.

I double checked the language of the statute here, and see no indication that the threshold intent -- to injure the United States or aid a foreign power -- has been dropped as an element of the crime.

So unless I am missing something else, I guess I'll just have to disagree with the Times.

AFTERTHOUGHT: I suppose the argument could be made that the very act of talking to reporters about secrets evinces an intent to injure the United States or help a foreign government. (Cf. Daniel Ellsberg and the Pentagon Papers.)

But is that really what the New York Times is saying?

MORE: Via Mickey Kaus, I see that Mark Kleiman interprets the intent element (of another section of a version of the statute other than the one I quoted earlier) quite broadly:

But Rove's conduct certainly meets the far less demanding elements of the Espionage Act: (1) possession of (2) information (3) relating to the national defense (4) which the person possessing it has reason to believe could be used to damage the United States or aid a foreign nation and (5) wilful communication of that information to (6) a person not entitled to receive it.

Under the Espionage Act, the person doing the communicating need not actually believe that revelation could be damaging; he needs only "reason to believe." Classification is generally reason to believe, and a security-clearance holder is responsible for knowing what information is classified.

(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;

But if Mark Kleiman is right, and if the above section criminalized the disclosure of Valerie Plame's CIA status as information which the possessor had "reason to believe could be used to the injury of the United States," then the following section -- (e) -- would seem to criminalize the reporter's repeating of the same, unauthorized, information:

(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;

I mean, if you get broad enough about the interpretation, am I not committing a crime right now by disclosing what I knew was classified? To you, the readers, who are not entitled to receive it?

Mickey Kaus also makes a good case for preemption by the Intelligence Identities Protection Act.

I think he's right, or else there are a lot of unindicted co-conspirators floating around.

(Might include some bloggers too.)

MORE: Dale Franks at QandO has been all over this issue last summer:

we have to look at the elements of the crime that has to be proven. As regards Mr. Rove:

1. Mr. Rove must have had access to classified information indicating Ms. Plame was a covert operative.

2. Ms. Plame's covert status with the CIA must have been classified information, and Mr. Rove must have known it to be classified.

3. Mr. Rove must have believed that it could harm the defense of the United States or advantaged another nation to release the information.

4. Mr. Rove must have intentionally released the information to a person not authorized to receive it.

Again, questions follow. Was Ms. Plame's status with the agency classified at the time the information was released? If so, did Mr. Rove know it to be classified?