Spies Like Us
Listening to leakers could land you in jail.
If a recent ruling by a federal judge in Alexandria, Va., is accepted as the word of law, every national-security journalist and researcher in America stands in danger of going to prison.
This is not an exaggeration.
The ruling—made by U.S. District Judge T.S. Ellis on Jan. 20 and reprinted in today's edition of Steven Aftergood's invaluable Secrecy News—states that federal espionage laws apply not only to officials who leak classified information but also to private citizens who receive it. Speaking from the bench, the judge said:
[A]ll persons who have authorized possession of classified information and persons who have unauthorized possession, who came into possession in an unauthorized way … must abide by the law. … So, that applies to academics, lawyers, journalists, professors, whatever.
Judge Ellis made these remarks at the sentencing hearing of Lawrence Anthony Franklin, a former Pentagon official who had earlier pleaded guilty to leaking top-secret information to two analysts at the American-Israeli Public Affairs Committee.
Franklin's crime, while not uncommon in Washington circles, was at least straightforward; those who leak state secrets know that if they're caught, they may face penalties. The novelty of this case, however, is that the Justice Department went after—and a grand jury indicted—not only Franklin, the leaker, but also the two AIPAC leakees. (Franklin was tried first; Judge Ellis sentenced him to 151 months in prison, with the mutual understanding that his term will be substantially reduced after he testifies against his AIPAC "co-conspirators," Steven J. Rosen and Keith Weissman, at their trial.)
Rosen and Weissman, who were not government officials and have not signed the legal pledge associated with security clearances, were indicted not for being spies or for passing secrets to foreign governments (if they had, that would have made their case something else entirely) but rather for giving classified information merely "to persons not entitled to receive it."
In a column dealing with the case last month, I wrote that this is what investigative reporters do all the time—they receive information from insiders, write stories about it, and give them to their editors and readers, who are "not entitled to receive it"—and that if Rosen and Weissman are prosecuted, the Washington Post's Walter Pincus and The New Yorker's Seymour Hersh could be next. Conceivably, anyone who even reads their stories—and who therefore improperly possesses classified information—could be indicted. (Franklin, after all, told the two AIPAC analysts about the secrets; he didn't give them documents.)
Now we know that the federal judge presiding over the trial made precisely this point: The law under which Franklin was prosecuted and the AIPAC Two have been indicted applies, as he put it, "to academics, lawyers, journalists, professors, whatever."
Nobody has ever been prosecuted for receiving classified information, even though the law in question—Title 18 of the U.S. criminal code, Chapter 37 ("Espionage and Censorship), Section 793 ("Gathering, Transmitting, or Losing Defense Information")—clearly allows such prosecutions. It states that persons who improperly transmit or receive classified information have committed a crime if they have "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." (This is a fairly easy hurdle for a prosecutor to clear. Notice: Defendants don't need to have "intent" to do harm, but rather "intent or reason to believe"—and they don't need to have "reason to believe" that the information would hurt the United States but rather that it could be used "to the injury of the United States or to the advantage of any foreign nation.")
Fred Kaplan is Slate's "War Stories" columnist and author of the book, The Insurgents: David Petraeus and the Plot to Change the American Way of War. He can be reached at email@example.com. Follow him on Twitter.