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| Home Front: Politix | |
| Espionage Acting | |
| 2006-08-17 | |
The Justice Department is prosecuting lobbyists for what reporters do every day.
We're talking about the indictment under the 1917 Espionage Act of two former lobbyists for the American Israel Public Affairs Committee, or AIPAC. Prosecutions under the Espionage Act have been very rare, but at least government officials swear not to leak secrets when they take the job. In this case Justice has already squeezed a guilty plea from former Pentagon analyst Lawrence Franklin for leaking classified information. He's been sentenced to 12 years in jail, or two more than Andrew Fastow received for fleecing Enron. Where Justice is breaking all precedent is by indicting Steven Rosen and Keith Weissman, the former AIPAC staffers, for a "conspiracy" to pass on information from Mr. Franklin to at least one journalist and one employee of the Israeli Embassy. To our knowledge no such secondary sources have ever been prosecuted in this fashion, even during World War II when the Chicago Tribune disclosed highly classified military secrets. One of the more important details about this case is that it doesn't involve the transmission of, say, microfiche or any classified documents. Rather, the defendants appear merely to have told others some of what they heard from Mr. Franklin--about U.S. Iran policy, for instance. They thus stand accused of doing exactly what hundreds of journalists do in Washington to make a living, albeit for a much larger audience. Perhaps sensing a problem, Justice sought to amend its original charges to suggest Mr. Weissman knowingly sought a classified document. But seeking classified documents is also what journalists do every day. In any case, federal Judge Thomas Ellis III ruled that this amendment was outside the bounds of the indictment approved by the grand jury. Last week, Judge Ellis also declined the defendants' request to dismiss the case on the grounds that the Espionage Act is unconstitutionally vague and that the prosecution abridges their First Amendment rights to free speech and to petition the government. But one doesn't have to read too much between the lines to see that the judge is troubled by the government's conduct. He acknowledges that the case "implicates the core values of the 1st Amendment." And he has set a high bar for prosecutors, asking them to prove the defendants knew that Mr. Franklin was not authorized to give them the information he did and that passing it on could harm national security. He also added an extraordinary footnote to last week's opinion saying nothing in it is "intended to suggest or intimate any view about the wisdom of the government's decision to pursue this prosecution." We realize that few of our readers have much sympathy for the press these days, and with ample cause. As we recently wrote after the Swift terror financing disclosure by the New York Times, we think the press sometimes has an obligation not to publish everything it knows. By revealing security secrets for no apparent reason other than its own partisan and ideological agenda, the Times has invited a government backlash against the entire press corps. But these Espionage Act prosecutions are dangerous to more than the media. The statute is notably vague, meaning it is ripe for selective prosecution and misuse against political or partisan enemies. On any given day in Washington, numerous classified details are whispered across lunch tables and many of them make it into print or on the air. Many of these "secrets" aren't truly vital to national security but have been classified for political reasons, or because information is power and many bureaucrats like to control the flow of information. Is Justice going to investigate and prosecute every one of those leaks? The potential for political abuse is obvious. The current prosecution has its own suspicious political beginnings, with some of the early leaks to the media suggesting that Mr. Franklin deserved his fate because he was one of those "neocons" who got us into Iraq. Some of the more breathless media reports seemed to cheer the FBI and Justice on, again for partisan reasons, and again ignoring the dangers to the press itself. This is the same mistake that liberal newspapers made as they campaigned for a special counsel in the Plame probe because the journalist in the dock was merely conservative columnist Robert Novak. More broadly, this use of the Espionage Act amounts to the imposition, by executive fiat, of a U.S. version of Britain's Official Secrets Act. That law criminalizes the publication--and even the re-publication--of certain kinds of information. This kind of "prior restraint" on the press is alien to the American legal tradition of First Amendment rights. If Attorney General Alberto Gonzales thinks we need an Official Secrets Act, then he ought to say so and ask Congress to debate and pass it, rather than let his prosecutors impose one by the back door. | |
| Posted by:ryuge |