Living in a city of spies

Jonathan Turley - The Baltimore Sun - May 3, 2006

I live among spies. Some of my neighbors are spies. Some of my co-workers are spies. I even know spies married to spies who had children who are now spies.

Before you diagnose clinical paranoia, I should mention that I live in Washington and, according to the Bush administration, virtually everyone I know is engaged in either clear or possible acts of espionage.

Two Washington lobbyists face criminal charges in Alexandria, Va., under the 1917 Espionage Act for receiving classified information in oral conversations with a former Defense Department employee, Lawrence A. Franklin.

Steven J. Rosen and Keith Weissman worked for the powerful American Israel Public Affairs Committee (AIPAC), a pro-Israel lobbying organization. Part of their duties was to ensure that Israel continues to receive over $2 billion a year in U.S. aid and other support. To do so, they kept close tabs on U.S. policies and concerns.

In a scene repeated thousands of times each day in Washington, the lobbyists met regularly with government officials to learn as much as possible about what the administration was thinking about Israel and its interests. One of their best contacts was Mr. Franklin. In some of these meetings, Mr. Franklin revealed some classified information, which the two lobbyists then passed on to other people.

Mr. Franklin was sentenced to 12 years in prison for the disclosures. His conviction was not unexpected because it is against the law to disclose classified information to anyone who is not cleared to receive it. While such disclosures are common, leakers know that they risk such prosecution when they disclose classified information to reporters, researchers or lobbyists.

Conversely, the charges against Mr. Rosen and Mr. Weissman are highly controversial and troubling. No one has ever been prosecuted merely for listening to a disclosure of classified information. The assumption always has been that the Espionage Act would be used against the disclosers of such information, not the recipients - absent a true espionage link in which the recipient was engaged in a conspiracy to assist a foreign power.

The AIPAC case has sent shock waves through the legal and journalistic communities.

Nevertheless, lead prosecutor Kevin DiGregory has argued that anyone who listens to such a disclosure is technically "stealing" classified information, as any spy. It is an argument that surprised U.S. District Judge T. S. Ellis III, who cautioned Mr. DiGregory in court that "you don't gain much from an analogy that doesn't fit."

The problem is that, under the Bush administration's definition, a huge number of reporters, lobbyists, researchers and academics fit this analogy of espionage. Government agencies routinely over-classify information, making even the most rudimentary facts secret or even top secret.

Indeed, the government often classifies information to keep the public from learning about embarrassing or even criminal acts. Worse, it is often unclear what information is classified. When this highly fluid environment is combined with an ambiguous definition under the Espionage Act, it creates a deep chilling effect on an array of important First Amendment activities.

Unlike people such as Mr. Franklin, reporters and researchers do not sign nondisclosure forms that obligate them to follow secrecy procedures and rules. To the contrary, they seek to disclose information that the government often wants shielded from public view. Historically, some of our greatest reforms have occurred after the disclosure of classified information to reporters or researchers. For example, the disclosure of the classified Pentagon Papers led to a change in the public view of the Vietnam War.

More recently, an unidentified government official disclosed the existence of a secret surveillance program run by the National Security Agency. Most experts in the field have concluded that the NSA operation ordered by President Bush was a federal crime, and Congress is still debating how to respond to the operation.

If reporters and researchers can be charged under the Espionage Act, it will fundamentally alter the long-standing distinction between officials and the people who cover them. Congress has refused to pass a federal shield law that would protect reporters from being compelled to disclose their sources. Thirty-one states and the District of Columbia have passed such laws.

This prosecution is no accident. Since taking office, Mr. Bush has imposed a culture of secrecy that surpasses that of the Nixon administration. Even before 9/11, the administration fought access to basic information on the role of lobbyists in drafting its energy policies and sought extreme protections over executive papers.

As scandals began to hit the administration, it has become more draconian in its effort to control information. It has pursued reporters, classified previously unclassified material, forced employees to sign waivers of confidentiality and conducted wholesale polygraph examinations of federal employees in fishing expeditions for possible media contacts.

Most recently, it even tried to seize material from the estate of the late investigative journalist Jack Anderson. Shortly after his death, the FBI tried to go through his files. Notably, agents specifically asked if there was any material related to the AIPAC case.

The AIPAC case is particularly dangerous. Under the administration's theory, any reporters who receive classified information could be charged with the theft of classified information by merely discussing such matters with government officials, as Mr. DiGregory warned. If this were the rule for the past 90 years, many of the worst crimes and abuses of our government would have remained comfortably concealed.

The AIPAC case effectively could create a U.S. version of Britain's Official Secrets Act, which gives the crown broad authority to treat even public information as protected secrets. It is the ultimate response of the Bush administration to endless scandals: If you shoot first the messenger and then the recipient, who will be left to read the message?