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Saturday, November 19, 2005

Between the Briefs

There are so many legal issues at play in the Traitorgate mess that it can be easy to get lost in all the moves and minutae. I've been getting a number of e-mails lately, most of which center around a few key issues -- so I thought I would try to shed a bit of light on them all at once. Hopefully, this will prove useful in the weeks ahead.

What information is provided to someone with high level security clearance? What are the rules surrounding this sort of clearance -- are people told what they can and cannot do clearly?

Security clearance issues are governed by a number of Federal laws and regulations, including the Standard Form 312.

The SF 312 provides a wealth of information to anyone granted a high level security clearance, including criminal laws and penalties for violating the security agreement, what constitutes an improper release of information, and what procedures are to be followed in dealing with classified information.

There is a booklet of this information which is distributed and explained at the time that an individual is given clearance. It includes this:
Question 19: If information that a signer of the SF 312 knows to have been classified appears in a public source, for example, in a newspaper article, may the signer assume that the information has been declassified and disseminate it elsewhere?

Answer: No. Information remains classified until it has been officially declassified. Its disclosure in a public source does not declassify the information. Of course, merely quoting the public source in the abstract is not a second unauthorized disclosure. However, before disseminating the information elsewhere or confirming the accuracy of what appears in the public source, the signer of the SF 312 must confirm through an authorized official that the information has, in fact, been declassified. If it has not, further dissemination of the information or confirmation of its accuracy is also an unauthorized disclosure.
In other words, even if a reporter calls you and asks if you've heard a rumor, if you know the rumor is a classified bit of information, you cannot confirm it. Period. Or you violate your clearance. And you have an affirmative obligation to find out whether or not a piece of information is classified before you confirm it one way or the other.

Does Congress have the same access to intelligence information as the President and his national security staff?

The short answer to this is: no. The always helpful SF 312 booklet also contains this gem:
Question 5: Are all Members of Congress entitled to unlimited access to classified information?

Answer: No. Access to classified information is a function of three preconditions: (1) A determination of a person's trustworthiness, i.e., the security clearance; (2) the signing of an approved nondisclosure agreement; and (3) the exercise of the "need-to-know" principle, i.e., access is necessary in order to perform one's job. Members of Congress, as constitutionally elected officials, are not ordinarily subject to clearance investigations nor does ISOO's rule implementing the SF 312 require that Members of Congress sign the SF 312 as a condition of access to classified information. Members of Congress are not exempt, however, from fulfilling the "need-to-know" requirement. They are not inherently authorized to receive all classified information, but agencies provide access as is necessary for Congress to perform its legislative functions, for example, to members of a committee or subcommittee that oversees classified executive branch programs. Frequently, access is governed in these situations by ad hoc agreements or rules to which the agency head and the committee chairman agree.

The three basic requirements for access to classified information mentioned in the opening paragraph apply to congressional staffs as well as executive branch employees. ISOO's regulation implementing the SF 312 provides that agency heads may use it as a non-disclosure agreement to be signed by non-executive branch personnel, such as congressional staff members. However, agency heads are free to substitute other agreements for this purpose.
Some information is only disseminated to a very, very few people in the government -- for any number of security reasons, you want to limit the number of hands (and mouths) that know certain bits, including CIA NOC operatives, who are among the most closely guarded "need to know" names in the government.

What exactly is "discovery," and how much will Libby's lawyers get to see about the case?

Discovery is the information that is given from the prosecutor to the defendant after criminal charges have been filed. Discovery is governed by the Federal Rules of Criminal Procedure Rule 16.

The rule of thumb is that any piece of information, evidence, etc., that has any relationship to the case must be turned over to the defendant's counsel. Should the prosecutor withhold information, especially information that could be remotely exculpatory in nature (or, in other words, helpful to the defedant's case), there are severe penalties, including the possibility of dismissal of the charges.

Both sides of a criminal case take the discovery obligation very seriously. Things included in discovery are: any statements made by the defendant; records of statements made in the case by other witnesses; physical evidence information (like fingerprints, DNA samples, objects, etc.); other documents (such as e-mails, letters, etc.); prior criminal records of the defendant and any potential witnesses; any exculpatory information; reports of any tests or examinations performed on evidence; names and information about expert witnesses expected to testify. This is not an exhaustive list, by any means.

In a conspiracy case, there sometimes are requirements that information which could be used commonly among defendants who have not yet been charged be held close -- or not distributed outside defense counsel for a particular defendant. This is generally enforced through court order in these types of cases, requiring that certain information remain under seal.

What is a conspiracy anyway? How is someone included -- or excluded -- from involvement?

A conspiracy is basically two or more people, working together in some fashion, in order to commit a crime. That crime can be anything that is a violation of law -- from murder to obstruction of a criminal investigation to blackmail -- but there has to be some underlying crime that the people involved worked toward in some fashion.

In order to be a part of a conspiracy, a person has to do something in furtherance of it -- this can be as little as providing a ride to bank robbers, or aiding bank robbers by helping them after the fact, or helping the bank robbers to come up with a plan to launder their money before they ever rob the bank.

It's a very, very broad bunch of latitude for a prosecutor in terms of who can or can't be thought of as being involved. So long as the potential defendant has done some act which further the conspiracy in any way at any time, that person may be in legal jeopardy as a part of the whole conspiracy, and is legally just as culpible as the main perpetrators of whatever crime is committed.