Josh Gerstein - NY Sun - August 11, 2006
ALEXANDRIA, Va. — A federal judge has rejected claims by two pro-Israel lobbyists that their prosecution for trafficking in classified information violates the First Amendment and threatens to criminalize the routine activities of journalists, lobbyists, and foreign policy experts.
The 68-page ruling by Judge Thomas Ellis III met with alarm but little surprise from critics of the government's handling of the case against the two former employees of the American Israel Public Affairs Committee, Steven Rosen and Keith Weissman.
Judge Ellis dismissed defense arguments that the two men could not be prosecuted because they were not in the government at the time and had no special duty to refrain from handling classified information.
"Their position is that once a government secret has been leaked to the general public and the first line of defense thereby breached, the government has no recourse but to sit back and watch as the threat to the national security caused by the first disclosure multiplies with every subsequent disclosure. This position cannot be sustained," Judge Ellis wrote in his decision released yesterday.
"Both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense," the judge said. "Congress's attempt to provide for the nation's security by extending punishment for the disclosure of national security secrets beyond … persons within its trust to the general populace is a reasonable, and therefore constitutional exercise of its power."
Lawyers for Messrs. Rosen and Weissman expressed disappointment, but lauded Judge Ellis's finding that to obtain convictions prosecutors would have to prove that the defendants knew what they were doing was illegal and, in some instances, that the men knew the disclosures could harm American national security or be helpful to a foreign nation.
"We are more confident than ever about our clients' innocence," the defense attorneys, Abbe Lowell and John Nassikas III, said in a statement.
Messrs. Rosen and Weissman, who were fired from Aipac as the investigation unfolded, are accused of conspiring with a Pentagon analyst, Lawrence Franklin, to obtain classified information. The Aipac staffers also are accused of passing that information on to journalists and foreign officials.
Franklin pleaded guilty last year. He was sentenced to more than 12 years in prison, but that term is likely to be reduced in light of his ongoing cooperation with prosecutors.
Prosecutors, defense lawyers, and Judge Ellis continue to wrangle over what classified details of the case can be made public. However, there are strong indications that the foreign officials referenced in the indictment are Israeli diplomats and that some of the classified information at issue is related to Iranian influence in Iraq.
The executive director of the Reporters Committee for Freedom of the Press, Lucy Dalglish, warned that the judge's ruling seems to countenance prosecution of journalists for publishing articles containing classified information. "I think it makes it absolutely clear that reporters are fair game for being charged with espionage," she said. "There's nothing functionally different between what these guys were doing and what reporters do every day."
An analyst and critic of classified information policies, Steven Aftergood of the Federation of American Scientists, said the judge's decision gives some solace to the two defendants, but still leaves many reporters and publishers exposed.
"It sets up harm to the United States as an absolute standard, and in practice there are lots of important stories that may cause short-term harm but long-term benefit," Mr. Aftergood said. "Judge Ellis's policy would discourage or outlaw those stories, so it's deeply disturbing and it threatens a real erosion of the free press in America."
Judge Ellis noted that although the Supreme Court in 1971 refused to prohibit the New YorkTimes and the Washington Post from publishing the so-called Pentagon Papers, three of the justices on the court "explicitly acknowledged the possibility of a prosecution of the newspapers."
A former federal prosecutor, Andrew McCarthy, said he was "not troubled" by the decision or the impact it could have on the Fourth Estate. "I think when newspapers do things they have very good reason to know can be terribly damaging to the country, they could be liable under espionage laws as anyone else is," he said.
The former Aipac officials are not charged with spying per se, but were indicted under provisions of the Espionage Act of 1917. That language has been the object of criticism and ridicule for more than three decades. A seminal law review article penned in 1973 by two Columbia law school professors, Benno Schmidt Jr. and Harold Edgar, called the statute "in many respects incomprehensible."
Judge Ellis said his role was not to determine whether the law was "optimal," but whether it was acceptable under the Constitution. He also said, "The time is ripe for Congress to engage in a thorough review and revision" of the statute.