In a ruling with potentially broad implications, a federal judge said Thursday that the Bush administration could use espionage laws to prosecute private citizens who gained access to national defense information.
The decision appears to be the first in which a court has found that citizens other than government employees can be charged for receiving and disclosing secret government information, experts said.
“It’s a momentous ruling with radical implications,” said Steven Aftergood, who heads the Project on Government Secrecy for the Federation of American Scientists. “A lot of people who are in the business of gathering information, such as reporters and advocates, are now going to have to grapple with the potential threat of prosecution. The dividing line has always been between leakers, who may be prosecuted, and the recipients of the leak, who have never been. Now that dividing line has been erased.”
The ruling is a significant victory for the Bush administration, which has been trying to clamp down on media disclosures of anti-terrorism programs since the Sept. 11 attacks.
At the same time, legal experts said, it could chill the ability of a broad segment of the public -- including lobbyists, academics and journalists -- to learn about the inner workings of government and expose misconduct or controversial programs of public interest.
The ruling, by U.S. District Judge T.S. Ellis III in Alexandria, Va., clears the way for the trial of two former officials of the American Israel Public Affairs Committee, a pro-Israel lobbying organization.
The defendants, Steven J. Rosen and Keith Weissman, were indicted last year by a federal grand jury on charges of conspiring to obtain information about Iran and other Middle East nations from Lawrence A. Franklin, then a Pentagon analyst. Franklin pleaded guilty to passing government secrets and in January was sentenced to more than 12 years in prison.
The Justice Department prosecution of Rosen and Weissman, based on a broadly written but little-used World War I-era espionage law, has been controversial since the charges were brought last August. The Espionage Act of 1917 makes it a crime to disclose or receive any information “relating to the national defense”; it is not limited to classified data.
The lobbyists’ lawyers sought to have the charges thrown out, arguing that the law did not anticipate prosecution of anyone other than government officials who leaked secrets after signing confidentiality agreements. They also said the law’s language was too vague to give the men notice of what sorts of disclosures were prohibited, denying them of due process of law. And they argued that the charges violated their clients’ right to free speech.
“In essence, their position is that once a government secret has been leaked to the general public and the first line of defense thereby breached, the government has no recourse but to sit back and watch as the threat to the national security caused by the first disclosure multiplies with every subsequent disclosure,” Ellis wrote. “This position cannot be sustained.”
And, he said, “both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.”
But the government cannot seek to punish all unauthorized leaks of information, he wrote: For example, punishing a newspaper for publishing a classified document that recounts official misconduct in the awarding of defense contracts would clearly violate the 1st Amendment, the judge wrote.
The government must establish that “national security is genuinely at risk” and that those who wrongly disclosed the information knew that its disclosure could harm the nation, he said.
Rosen, a prominent figure in Washington lobbying circles for two decades, and Weissman, a top Middle East strategist, are accused of passing on information about American policy options in the Middle East, about an FBI report on the 1996 Khobar Towers bombing in Saudi Arabia and about terrorist groups such as Al Qaeda. The indictment alleges they disclosed the information to AIPAC colleagues, an Israeli Embassy official and a reporter for the Washington Post.
The lobbyists’ lawyers said in a statement: “Given the always long odds of having an indictment dismissed before trial, particularly when the government invokes the specter of ‘national security,’ we are disappointed but not surprised at the court’s decision.”
They added that they found parts of the ruling encouraging, and they said they doubted the government could prove that the men knowingly jeopardized national security. “As a result, we are more confident than ever about our clients’ innocence and wish we could start the trial next week,” they said.
The trial was postponed from this week because of issues over how to handle classified evidence. Ellis has not set a new date.
The press has been under fire from the Bush administration and congressional Republicans for publishing information about then-secret aspects of the government’s war on terrorism. A federal grand jury in Alexandria reportedly is hearing evidence about leaks that led to news accounts of the National Security Agency’s warrantless surveillance of suspected terrorists’ communications into and out of the U.S.
Prosecutors have said that for the espionage law to be invoked, an individual possessing secret information must intend to cause harm to America. But they have not ruled out the possibility of charging journalists.
Some legal experts are skeptical of the judge’s reasoning that safeguards are sufficient to prevent abusive prosecutions.
“It is predicated on an idea that the executive and judicial branches will operate with rectitude and only prosecute cases where there is a genuine risk of harming national security” rather than political considerations, said Jane Kirtley, a professor of media ethics and law at the University of Minnesota. “It presumes a degree of honest government that, sadly, does not always exist.”
Aftergood and Kirtley said they knew of no other case where the United States was seeking criminal charges against someone other than a government employee who clearly violated a nondisclosure agreement.
The ruling sets the stage for a trial that will probably provide an inside look into how Washington works.
Lawyers for Rosen and Weissman have indicated that a number of senior administration officials also provided the men with sensitive information and that they might be called as witnesses. Among them is Secretary of State Condoleezza Rice, who at the time of the alleged contact was White House national security advisor.