On May 23rd, Americans will have a better idea whether policy analysts, lobbyists, journalists, members of the press, newspapers or any private American citizen who leaks classified national defense information will now become a criminal. On that date, a U.S. District Court Judge will rule whether two former lobbyists for the American Israel Public Affairs Committee  (AIPAC), Steven Rosen and Keith Weissman violated a rarely used and vaguely worded “spy” provision of the World War I era Espionage Act that makes it a crime to disclose or disseminate any “national defense information” that could be used “to the injury of the United States and to the advantage of a foreign nation.” Simply put, it is a legal attempt to use a spy statue to silence anyone from disclosing “national defense information” leaks.

It is important to note that neither Rosen nor Weissman were charged as spies or foreign agents (nor was AIPAC, a public-policy organization, suspected of any wrongdoing) but as private citizens who shared classified national defense information with “persons not entitled to receive it” (in this case a journalist for a major American newspaper and representatives of the State of Israel).

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The classified information had warned that Iranian agents in predominantly Kurdish northern Iraq planned to kidnap, torture and kill American and Israeli agents in the region. It also dealt with American policy in Iran, terrorism in central Asia, Al Qaeda and the 1996 bombing of the Khobar Towers apartments in Saudi Arabia that killed 23 Americans, mainly military personnel. The information had been orally leaked to them through conversations with a well-placed government source (former Defense Department policy analyst Larry Franklin) who has since pled guilty and been sentenced to 12 years and 7 months in prison sentence and a $10,000 fine.

The core legal issue to be tested in the AIPAC case (if it goes to trial) will be whether the Espionage Act makes it a crime not just to relay classified information by government officials (which is a given since they are charged with the responsibility of protecting such information), but to criminalize its dissemination by private citizens who are not deemed to be spies.

While U.S. law is clear about assigning criminal penalties to government officials who leak classified information, it is murky when it comes to private citizens (like Rosen and Weissman) who come into possession of such information and subsequently share it with others. In fact, the AIPAC case is believed to be the first such case in U.S. history to make it a criminal offense for private citizens to disseminate leaked classified national defense information that they received orally from a government source.

In its lead March 23rd editorial, The Washington Post attacked the government’s case against them: “Their conviction would herald a dangerous aggrandizement of the government’s power”, said the report, “not merely to prosecute leaks, but to force ordinary Americans to keep its secrets.”

Both men, as it happens, were lobbyists whose job it was to promote the U.S.-Israel strategic relationship and both had connections in the highest levels of government in Washington. They were not however government officials obligated to keep the classified information secret (as was Larry Franklin), nor did they do anything illegal to obtain the information they received and shared – unless of course, the court now rules that, even as private citizens, their obtaining and disseminating such information constitutes a crime.

If private citizens are now to be prosecuted for national defense information leaks they obtain and disseminate as part of their jobs, this case will have serious ramifications on how business is conducted in Washington. Both Rosen and Weissman operated in a foreign policy environment in which private lobbyists, public officials and journalists regularly discuss national defense information that is often related to foreign countries. What Rosen and Weissman are charged with doing is what members of the media, members of Washington think-tanks, lobbyists, congressional staffers, former government officials, and hundreds of other men and women in Washington who petition the federal government on defense and foreign policy issues do each and every day as part of their livelihood.

In Washington, obtaining and disclosing classified information is and always has been a kind of cottage industry. Leaked information is traded like currency and is conducted at all levels of government. If private citizens who receive, share or publish “national defense information” are now to be considered criminals, much of the Washington press corps and a whole lot of other people will certainly end up in jail. Criminalizing the dissemination of “national defense information” by private citizens (who are not charged as spies) places extraordinary power in the hands of federal prosecutors since some aspect of “national defense information” is bound to be shared whenever government officials privately discuss national defense issues with members of the media or lobbyists.

The issue becomes even more complicated because, under U.S. law, lobbying, like publishing a newspaper is constitutionally protected. Like freedom of the press, the “right to petition” the government is also explicitly provided for in the First Amendment. If receiving, transferring and publishing classified “national defense information” by non-governmental employees such as lobbyists or the media or any private citizen for that matter now turns out to be a punishable crime, the exercise of our First Amendment rights and, in fact, the entire practice of journalism and political advocacy in America will change.

That would seriously hamper the constitutional controls that Americans have always had over their government’s activities – the kind of controls that would have prevented the disclosure of the Nixon-era “Watergate” scandal or the publication of the Pentagon Papers.*  A conviction of Rosen and Weissman would effectively silence everyone on national defense issues (lest they hear and publish something not meant to be heard or published), restrict the incidence of government whistle-blowers, and place severe constraints on how lobby groups practice in this country.

For these reasons, the U.S. has rarely prosecuted private citizens (especially journalists, lobbyists and newspapers) who have received and published classified information. As Eli Lake wrote recently in The New Republic: “The federal government has traditionally respected an implicit First Amendment right of publishers and private citizens to determine the public’s right to know about national security. Without journalists’ ability to disclose secret information, the executive branch would be the sole arbiter of what information the public could have about its government’s foreign policy.”

In Britain, under the Official Secrets Act, journalists and even newspapers that disclose classified information can be prosecuted. In November 2005, the British attorney general threatened newspaper editors with prosecution under their Official Secrets Act if they revealed the contents of a document allegedly relating to a dispute between Tony Blair and George Bush over the conduct of military operations in Iraq. When the public is kept in the dark, it is difficult to combat government excesses.

In America, there is no Official Secrets Act, so government excesses are generally more difficult to conceal by virtue of our First Amendment rights. As noted earlier, the Nixon administration tried and failed to prevent The New York Times from publishing the Pentagon Papers. It reportedly considered prosecuting the paper after it published the classified documents, but shelved the idea due to First Amendment considerations.

Now, thirty-five years later, the government has decided to pursue criminal prosecution once again – this time against lobbyists (i.e.: private citizens) who obtained classified defense information and, who, like The New York Times and The Washington Post in the Pentagon Papers case, disseminated it. Prosecutors are now seeking to extend the criminal powers of the Espionage Act which was intended to apply only to spies passing information to the enemy to something tantamount to Britain’s Official Secrets Act in order to silence both newspapers and private citizens from disclosing “national defense information” leaks.

The courts will now have to determine what limits (if any) are to be placed on the exercise of the First Amendment rights of reporters and lobbyists whose job it is to give Americans an inside look on what is rarely seen. In the course of doing so, the courts will ask the inevitable questions….Are Rosen and Weissman (or you and I for that matter) to be held to the same strict rules for protecting secrets as Larry Franklin or any other government employee with security clearance? If Rosen and Weissman are found guilty under the Espionage Act, then what of newspapers who publish the information and journalists or other private citizens who provide it to them? After all, they all “aided and abetted” the crime. The issue, however, is that each were operating under a constitutional protection (the First Amendment) when they published that information. And if, at some point in the future, anyone chooses to incorporate this “national defense information” into a book, should he or she also be subject to prosecution? District Court Judge T. S. Ellis is correct when he says that this is a serious and complicated case that requires much thought because it has moved the law into “new, uncharted waters”.

To be sure, there are cases in which the press, lobbyists or any private citizen conveying classified information could do great harm to national security (such as publishing the details of how American intelligence keeps surveillance on our enemies, or the disclosure of the Abu Ghraib photographs or the rendition issue which involves the sending of criminal suspects, generally suspected terrorists or alleged supporters of groups which the U.S. government considers to be terrorist organizations, to countries other than the United States for imprisonment and interrogation) and this possibility must also be taken into account in any final ruling on the subject. It is not an academic issue. On August 21, 1998, a Washington Times editorial referred to the fact that bin Laden “keeps in touch with the world via computers and satellite phones.” This may sound like an insignificant detail, but, according to the 9/11 Commission Report, Al Qaeda’s leadership stopped using their satellite phones almost immediately after the story was published, thus eliminating the possibility of using satellite phone signals to locate and assassinate them. 

In the end, we shall see how well our courts can navigate these complicated First Amendment issues, and whether ordinary citizens who come into possession of “national defense information” will to be held to the same strict secrecy standards as those whom we entrust with our nation’s security.

*The Pentagon Papers is the colloquial term for United States-Vietnam Relations, 1945-1967: A Study Prepared by the Department of Defense. The Papers were a 47 volume, 7,000-page, top-secret history of U.S. political and military involvement in the Vietnam War from 1945 to 1971. The Study was commissioned in 1967 by then Secretary of Defense Robert McNamara and revealed, among other things, that there was a consensus in the Defense and State Departments that the United States had no realistic chance of victory in Vietnam due to the strength of Vietnamese post-colonial nationalism, but that political considerations prevented them from saying so publicly. They revealed the knowledge, early on, that continuing the war would lead to many times more casualties than was admitted publicly and showed that the government had deliberately expanded its role in the war by conducting air strikes over Laos, raids along the coast of North Vietnam, and offensive actions taken by U.S. Marines well before the American public was told that such actions were necessary. All of this happened while President Lyndon Johnson had been promising not to expand the war. In the end, fifty-eight thousand American soldiers died in Vietnam.  The Pentagon Papers created a credibility gap that continues to plague U.S. administrations to this day.