Wider spying law use approved
WASHINGTON – In a ruling with potentially broad implications, a federal judge on Thursday said that the Bush administration could use espionage laws to prosecute private citizens who gain 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-terror 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 men – Steven Rosen and Keith Weissman – were indicted last year by a federal grand jury for 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, had been controversial since the charges were brought last August. The Espionage Act of 1917 makes it a crime to disclose or receive any information “related to the national defense”; it is not limited to classified data.
Lawyers for the lobbyists 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 that 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’ rights to free speech.
Ellis disagreed.
“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.”
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 First Amendment, the judge wrote.
The government must establish that “national security is genuinely at risk” and that those who wrongly disclosed the information knew its disclosure could harm the nation, he said.