Unmaking their case

The decision by the Justice Department to drop its case against two former employees of the American Israel Public Affairs Committee was a wise one. The case, misconceived from the start, created more problems than it solved.

The saga began more than four years ago when the government accused the two AIPAC staff members, Steven J. Rosen and Keith Weissman, of receiving secret information about U.S. policy in the Middle East from a Pentagon analyst and then passing it on to a Washington Post reporter and an Israeli diplomat. Rosen and Weissman were indicted in 2005 under a little-used provision of the 1917 Espionage Act, and their trial was to have begun next month.

From the start, the case was about more than it seemed, raising tricky, volatile issues at a moment when Jewish neoconservatives in the Bush administration were already under attack for being too loyal to Israel, and as AIPAC -- America’s top pro-Israel lobbying organization -- was being accused of leading a powerful and possibly nefarious “Israel lobby.” Yet the Bush administration pursued the case doggedly, devoting millions of dollars and thousands of man-hours to it.

So why did the government drop the case last week? In part because of the change of administrations and, no doubt, a desire on the part of the new guys to choose their own battles. Even more persuasive was a series of unfavorable rulings by the trial court judge that made the case hard, if not impossible, to win.

For our part, we’re pleased that it’s going away -- not because we think spying for Israel should be subjected to a different standard than spying for other countries, and not because the political ramifications of a conviction were potentially unpleasant. But this was the first prosecution under the Espionage Act of suspects who weren’t government employees. The sole government official involved in this story, Pentagon analyst Lawrence A. Franklin (who initially passed the secrets to the two lobbyists), has already been convicted and is serving a 12-year sentence.

The fact that Rosen and Weissman are private citizens makes an important distinction. When the judge ruled that “the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense,” we couldn’t help but take notice.

Wouldn’t that cover news reporting of leaked information? We can understand laws to keep government officials from leaking sensitive secrets, but once that information is out, do we really want to start prosecuting journalists and others who publish it? That sounds more like Britain’s Official Secrets Act than an American law consonant with the 1st Amendment.

When Congress passed the Espionage Act, it explicitly rejected a version that would have punished newspapers for printing information “useful to the enemy.” That was the right decision then, and there’s no rationale for undoing it now.