Neil A. Lewis - The New York Times - August 11, 2006
WASHINGTON - The U.S. government's case charging two former pro-Israel lobbyists with improperly receiving and transmitting secret national security information has cleared a major hurdle in a ruling by a federal judge.
Judge T.S. Ellis, of the U.S. District Court in Alexandria, Virginia, refused Thursday to dismiss the case against the lobbyists, ruling that the sections of the Espionage Act prohibiting such activity were not unconstitutionally vague. The act does not improperly limit the lobbyists' constitutional rights to engage in influencing government policy, he wrote.
The case has produced alarm among the policy groups, lobbyists and journalists who trade in information, often about security issues, with officials in the administration and in Congress.
Nonetheless, Ellis explicitly rejected the argument that the prosecution was unfairly flawed because this practice goes on regularly in Washington.
Under that argument, it was a violation of due process to single out the pro- Israel lobbyists for behavior that was generally acceptable.
The ruling means the case will proceed against Steven Rosen and Keith Weissman, former officials of the American Israel Public Affairs Committee, who were charged with improperly receiving and transmitting sensitive information.
Ellis dismissed the defendants' arguments that the indictment limited their First Amendment rights to learn about the way the government operates and use that information to influence policy.
He said the defendants' motion to dismiss "exposes the inherent tension between government transparency so essential to a democratic society and the government's equally compelling need to protect from disclosure information that could be used by those who wish this nation harm."
But, he added, "the rights protected by the First Amendment must at times yield to the need for national security."
Lawyers for the two lobbyists argued that the 89-year-old Espionage Act under which they were charged was not intended to be used this way.
The lawyers argued that even though the language of the law may apply, the application to their clients was so novel that the prosecution violated the principle that a statute must be clear as to what it prohibits because it would otherwise invite selective prosecution.
Ellis said the applicable test was "whether the language and application of the statute has provided defendants adequate warning that their conduct was proscribed." In this case, the "statute's plain language rebuts this argument" and the infrequency of a statute's particular application is unimportant.
According to the August 2005 indictment, Rosen and Weissman got classified information about the Middle East, Iran and terrorism from a Defense Department analyst, Lawrence Franklin.
They then passed that information on to a journalist and an Israeli diplomat.
Franklin pleaded guilty and was sentenced to 12½ years in prison. Rosen and Weissman have since been dismissed from the lobbying group.