An espionage trial about to begin in Alexandria, Va., could threaten the whole enterprise of investigative journalism.
The case is The United States of America v. Lawrence Anthony Franklin, Steven J. Rosen, Keith Weissman, and the five-count charge—filed under federal espionage statutes—concerns the "communication of national defense information to persons not entitled to receive it."
According to the indictment, Franklin, who at the time of the alleged crime was a Pentagon official, spoke about classified information with Rosen and Weissman, who were policy analysts for the American Israel Public Affairs Committee.
Franklin's offense, though hardly unusual in Washington (and rarely prosecuted), is at least straightforward: Talking to Rosen and Weissman about classified material violated the contractual and legal obligations of his security clearance.
The charges against Rosen and Weissman, though, are peculiar. Neither works for the U.S. government. Neither has a security clearance. (Rosen, a former official, used to have one, but it expired 20 years ago; the prosecutors claim that its terms are still in effect.) If Rosen and Weissman were accused of being Israeli spies, or if either they or AIPAC were labeled foreign agents, that would be one thing. But the indictment makes no such accusation.
The section of the indictment titled "Ways and Means of the Conspiracy" finds that Rosen and Weissman
would cultivate relations with Franklin and others and would use their contacts within the U.S. government and elsewhere to gather sensitive information, including classified information, relating to national defense, for subsequent unlawful communication, delivery and transmission to persons not entitled to receive it.
Take a close look at those final words. They're charged with giving classified information not to foreign governments or spies but rather "to persons not entitled to receive it."
This is what journalists do routinely every day. They receive information from insiders, write it up in a story, send it to editors, who publish it in newspapers, magazines, wire services, or on Web sites, all of which are seen by readers who have not been officially authorized to view that classified material.
Rosen and Weissman are indicted as having joined in a "conspiracy" with Franklin—not because they bribed, coerced, or even solicited Franklin for the information (there's no charge that they did that, anyway) but rather because they merely received it.
If they are convicted under this legal theory, the Washington Post'sWalter Pincus or TheNew Yorker'sSeymour Hersh could be next.
The two AIPAC analysts are charged under Title 18 of the U.S. criminal code, Chapter 37 ("Espionage and Censorship"), Section 793 ("Gathering, transmitting, or losing defense information"). This is a statute at once remarkably vague and astonishingly broad. If officials in the White House or the Justice Department decide to enforce it consistently, they could go after hundreds of publications—and their millions of readers.
More to the point, if Rosen and Weissman are convicted, the lawyer for every serious newspaper or magazine will feel duty-bound to advise the editors and publishers that they could face felony charges for printing any stories containing classified information. Some publishers will go ahead and run the stories anyway. Others won't. Even the brave ones might raise the bar of when to go with a story and when to hold back.
The statute does contain a caveat, a specific condition for declaring disclosures illegal; but it's so loose as to be meaningless. It specifies that, in order to be charged with espionage, those who handle secrets improperly must do so
with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.
Again, read that line carefully. It doesn't say you must have "intent" to harm the United States or to help some other country. It says that you have "intent or reason to believe" that the information will "be used" to that effect.
It is for this reason (among several others) that Viet Dinh, a former Bush Justice Department official who helped write the USA Patriot Act, has filed a "memorandum of law" in support of Rosen and Weissman's motion to dismiss the indictment. Dinh writes that the statute is so vague on this point that no unauthorized recipient of classified information would have any way of knowing whether he's breaking the law or not. Dinh also notes in his memo that no nongovernmental official has ever been successfully prosecuted under this statute for receiving classified information.
Still, if some attorney general were to view this case as a precedent, he could go after whole newsrooms on the grounds that the reporters and editors had "reason to believe" the information might be used to harm the United States or to help another country.
As ludicrous as it might sound, the attorney general could go after readers, too, since the espionage statutes say anyone who receives certain classified information can be prosecuted. (For a mind-blowing list of what Section 793 outlaws, click
This federal government, after all, has thrown reporters in jail for refusing to name sources. The Justice Department has proclaimed a theory of government that puts nearly all powers not just in the executive branch but in the presidency. In his recent appearance before the Senate judiciary committee, Attorney General Alberto Gonzales declined to answer questions about the National Security Agency's surveillance program, pretty much on the grounds that he didn't have to and didn't want to. Meanwhile, the Congress has abdicated its oversight responsibilities. According to today's Washington Post, the Senate intelligence committee, under White House pressure, is about to vote against conducting even an inquiry into the NSA program.
If the White House or the Justice Department wanted to push these restrictive espionage statutes to the max, if they wanted to create an Official Secrets Act in America, the ground is well-plowed for them to do so.