The AIPAC Case: Criminalizing Public Speech

Secrecy News From the FAS Project on Government Secrecy
Volume 2006, Issue No. 19 - February 11, 2006

In an unprecedented and previously unimaginable case, two former employees of the American Israel Public Affairs Committee were accused last year of mishandling classified government information. Now they are asking a federal court to dismiss the charges against them.

The prosecution of the former AIPAC officials, Steven J. Rosen and Keith Weissman, represents an extraordinary attempt by the Bush Administration to use the Espionage Act to restrict the activities and even the conversations of members of the public who are not government employees.

"The prosecutors in this case have taken the unprecedented step of criminalizing an alleged leak not just against the government official who was charged with protecting such information, but also members of public policy organization with First Amendment protection who listened to what this government official had to say," the new defense motion to dismiss states.

"If this indictment is allowed to stand, a statute which in the first instance is intended to address classic spying will not only be applied to erring government officials but now will be applied to private American citizens pursuing first amendment protected activities."

What Rosen and Weissman are charged with is nothing more than "what members of the media, members of the Washington policy community, lobbyists and members of congressional staffs do perhaps hundreds of times every day," the defense says.

There is no allegation that Rosen or Weissman "ever stole, secreted, purloined, paid for or otherwise obtained classified information from any person -- inside or outside government -- by any illegal means."

Instead, they listened to, and repeated, information provided by former Pentagon official Lawrence A. Franklin that was purportedly classified.

"Never has a lobbyist, reporter, or any other non-government employee been charged... for receiving oral information the government alleges to be national defense material as part of that person's normal First Amendment protected activities."

"The government's construction of [the Espionage Act] would allow for the punishment of any private citizen who obtains classified information -- regardless of how or why -- and then discloses it to another private citizen."

"Such a result would be profoundly disturbing," according to the Defendants' motion.

Remarkably, the legal memorandum on behalf of the defendants was co-authored by Viet Dinh, the former Justice Department attorney who is best known as one of the architects of the USA Patriot Act.

The defense memorandum was filed under seal on January 19 and unsealed by the court in the Eastern District of Virginia on February 9.

A copy was obtained by Secrecy News and posted on the Federation of American Scientists web site. See 4.2 MB PDF file.

Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
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  • See Also: The Franklin/AIPAC Spy Case Page