If Rosen and Weissman were prosecuted for joining in a “conspiracy” with Franklin on the grounds that they’d received classified material, then the New York Times, Washington Post, The New Yorker, or any number of other publications could be next.
The presiding U.S. District Court judge, T.S. Ellis, made this same inference, noting that the law “applies to academics, lawyers, journalists, professors, whatever.” In the end, though, Ellis dismissed the indictment against the AIPAC analysts for precisely that reason, noting that the statute was too vague, broad, and draconian. (For a jaw-dropping list of all the activities prohibited by the federal espionage statute, click here.)
Now, though, President Obama’s prosecutors are pushing the logic of the AIPAC case to its absurd extreme: They’re labeling a reporter who received classified information as a criminal abettor or co-conspirator.
Rosen’s Fox News story, which appeared in June 2009, did contain serious, possibly damaging intelligence information. It reported that North Korea was likely to respond to some United Nations sanctions, which had just been handed down, by conducting a nuclear-weapons test. It also reported that the CIA learned of this from sources inside North Korea.
The key fact, from a prosecutor’s viewpoint, was that any North Korean official reading this story would now know that the CIA had sources inside North Korea—and that the source (whether it was a human spy, a phone tap, or whatever) would subsequently be shut down, one way or another.
Rosen’s source for the story was Stephen Jin-Woo Kim, a State Department adviser and one of a small number of officials who received a top-secret memo about the CIA finding. Few dispute the Justice Department’s right to prosecute Kim, who did break his security pledge (though many are critical of how often, and how relentlessly, the Obama administration pursues leakers). One might also criticize Rosen or his editors for not writing the story in a way that finessed the fact that the information came from a source inside North Korea. But that’s different from arresting him under the Espionage Act.
It’s possible that the prosecutors won’t indict Rosen, that they called him a criminal co-conspirator in their court affidavit in order to boost the chances that the judge would approve their request to track his email, phone calls, and movements. However, even if that is the case, it’s a dangerous game. Some future prosecutor could use the Rosen affidavit as a precedent to go all the way, to treat some similar reporter—potentially all reporters on the national security beat—as criminal conspirators.
During the Franklin trial back in 2006, Viet Dinh, a former Bush Justice Department lawyer who’d helped write the Patriot Act, filed a “memorandum of law” in support of the AIPAC analysts’ motion to dismiss their indictment. Dinh wrote that the espionage statute had never been applied to recipients of classified information—and that its language is so vague that recipients had no way of knowing whether they were breaking the law.
It would be ironic if we have to rely on a Bush lawyer’s reasoning to block Obama’s prosecutors from going too far.