Judge Calls Speech Rights Central to Espionage Case

Federal prosecutors, trumpeting the indictment last year of two pro-Israel lobbyists who allegedly obtained U.S. defense secrets from a former Pentagon analyst, said the men had crossed a “clear line in the law.”

But that line is turning out to be not so clear, and the government’s high-profile case might be unraveling. A federal judge is considering throwing out or reducing the charges before the ex-lobbyists’ trial begins this month.

Last week, U.S. District Judge T.S. Ellis III, a conservative appointed by President Reagan, appeared to be receptive to concerns expressed by media groups, lobbyists and proponents of open government that the case posed a new intrusion on 1st Amendment rights.

Critics have said that by targeting recipients of unauthorized disclosures -- in this case lobbyists who learned information in conversations with a Pentagon official -- the Bush administration seeks to impose punishment for constitutionally protected speech.

The indictments represent the leading edge of an administration effort to crack down on leaks it views as damaging, including the disclosure of the National Security Agency antiterrorism program that spied on international communications in the U.S. without warrants.

Administration officials said that if they did not have the power to aggressively prosecute such leaks, their ability to protect national security would be greatly damaged.

For an administration that has repeatedly pushed the legal envelope in areas such as the detention and treatment of enemy combatants, a ruling that dismisses the government’s case would be an embarrassing rebuke.

The defendants, Steven J. Rosen and Keith Weissman, former lobbyists with the American Israel Public Affairs Committee, were charged with conspiring with then-Pentagon analyst Lawrence A. Franklin to gather and communicate defense information concerning Iran, Iraq and Saudi Arabia.

Franklin, who as a government employee had sworn an oath not to reveal classified information to anyone without a security clearance, pleaded guilty and was sentenced in January to more than 12 years in prison.

The former lobbyists have been charged under the 1917 Espionage Act, which makes it a crime for anyone to possess or communicate defense information.

The statute is controversial because it is broadly worded. It has withstood court challenges over the years, mostly cases involving classic spy schemes and the misdeeds of U.S. officials leaking secrets to foreign powers.

At a hearing in federal court last week, Ellis said that the charges brought under the 1917 law were unprecedented and that the government had veered into “uncharted waters.”

“My initial thought was maybe that, since this statute has been around for so long, that this would be a case that would be governed by well-established precedent,” the judge said. “I don’t think it is.”

Critics say the case threatens the normal give-and-take between lobbyists and government officials that characterizes life in Washington.

Prosecutors in the case have acknowledged that the statute could be as the basis for charges against reporters.

For the most part, said Steven Aftergood, an intelligence expert at the independent Federation of American Scientists, “I don’t know anything that the defendants did that I don’t do on nearly a daily basis.

“I have confidential conversations with government officials. I discuss national defense matters, and I ask questions about programs that that may be classified.

“Should I turn myself in to the authorities?

“I resist the suggestion I am a criminal.”

Aftergood said the legal action was especially disquieting because the administration was classifying more and more information.

Some critics say the administration is taking direct aim at journalists.

“The government has been building up to this case. This did not emerge out of the blue,” said Jane Kirtley, a media and law expert at the University of Minnesota. She said that the prosecution could mark “the beginning of a long slide -- or even a short slide -- into criminalizing the distribution of information.”

Ellis indicated at the hearing that he was struggling with whether the 1917 law was constitutional.

Lawyers for Rosen and Weissman argue that it is not constitutional -- at least as invoked against their clients, because of its effect on freedom of speech. They said they found the case particularly troubling because their clients had not obtained any documents but instead had learned information in talks over lunches and the like.

It can be hard for recipients to determine whether information received in that manner is classified, the lawyers said.

The key point for the judge seemed to be whether the lobbyists’ activities were subject to 1st Amendment protection.

Ellis asked federal prosecutor Kevin V. Di Gregory whether it was fair to punish someone who came to possess classified information under such circumstances.

“What are they supposed to do, have a lobotomy?” the judge asked, noting that the 1917 law criminalizes the mere possession of information.

Di Gregory responded that exempting paperless disclosures would create its own anomalies: Someone could avoid charges by reading a classified document and then repeating what he had read over the phone.

The prosecutor also dismissed any suggestion that the case was wrongheaded just because the government might be using the statute in a novel way.

Not persuaded, the judge ordered both sides to file additional papers elaborating on their arguments.

Short of dismissing the indictment, the judge could take steps to narrow the case. Some observers said he might be setting the stage for throwing the case out after the government presents its evidence at trial.

“I regard this [1st Amendment issue] as central to this case and important,” Ellis declared.