No matter what you might think of the policies AIPAC espouses, the American Israel Public Affairs Committee, the Washington Post’s news that the government will be dropping espionage charges against two former officials of the organization is very good news for journalism and government transparency.
Steve Rosen and Keith Weissman, private U.S. citizens both, were charged with receiving classified information from government officials, and then relaying that information to others. If a court had found those actions to be a convictable crime, it’s easy to see how the same standard would hem in journalists who we expect to do the same thing as an everyday part of their job, especially reporters who traffic in sensitive information on thier foreign policy, intelligence, law enforcement, and homeland security beats. As the last eight years have shown, these are areas deserving greater, not less, press scrutiny.
Eli Lake wrote an excellent piece explaining the now dead case’s danger to journalism for The New Republic in 2005. Some key excerpts, cribbed from Lexis-Nexis:
Far from alleging the two AIPAC officials were foreign agents, U.S. Attorney Paul McNulty is contending that the lobbyists are legally no different than the government officials they lobbied, holding Rosen and Weissman to the same rules for protecting secrets as Franklin or any other bureaucrat with a security clearance…
But, if it’s illegal for Rosen and Weissman to seek and receive “classified information,” then many investigative journalists are also criminals—not to mention former government officials who write for scholarly journals or the scores of men and women who petition the federal government on defense and foreign policy. In fact, the leaking of classified information is routine in Washington, where such data is traded as a kind of currency. And, while most administrations have tried to crack down on leaks, they have almost always shied away from going after those who receive them—until now. At a time when a growing amount of information is being classified, the prosecution of Rosen and Weissman threatens to have a chilling effect—not on the ability of foreign agents to influence U.S. policy, but on the ability of the American public to understand it.
Addendum: Steven Aftergood’s Secrecy News gives credit to JTA’s Ron Kampeas for breaking the news, and to, yes, Eli Lake for getting the first on the record confirmation in The Washington Times.
Surely there is room in the law for a distinction to be made between members of the press and members of a PAC with ties to a foreign country?
Also, my reCAPTCHA password is "erectile refletions".
#1 Posted by D.R. Foster, CJR on Fri 1 May 2009 at 03:33 PM
If time is taken to read the indictment, it becomes apparent that the prosecution wasn't as benign as some have attempted to portray it (passively receiving classified information).
Rosen and Weissman allegedly solicited another individual (Larry Franklin) to commit a felony (disclosing classified information to an unauthorized individual). They weren't passive recipients, they actively pursued Franklin and actively solicited classified information from him.
Irrelevent of whether they could be prosecuted for subsequently disclosing the classified information they obtained to others (media, foreign governments, etc) it is my understanding that soliciting another to commit a felony is, in and of itself, a felony.
The media has consistently portrayed this prosecution as unnecessary and overreaching. Whenever the statutes they were being prosecuted under (part of the Espionage Act) were identified by the media, it was almost always with adjectives like "archaic" or something similarly derrogatory. Funny, in the same articles, when the First Amendment is referenced, it isn't similarly described as being even more "aged" than the Espionage Act.
As far as the 'slippery slope' arguments presented by the press, they are a smoke screen for the specific facts in this case (as presented in the indictment). By their alleged actions (attempts to conceal their meetings with Franklin), Rosen and Weissman apparently knew that what they were doing was improper. One of the two (Rosen or Weissman) apparently also previously held a security clearance, and as such would have been aware of the proper handling of classified information.
As far as 'slippery slopes' this dismissal could also be viewed as leading to a new method for espionage, in which the government employee wishing to commit espionage simply uses a non-government employee cutout to deliver the classified information to a foreign government. Based on the premise set forth by the defense attorneys (and apparently accepted in the above article) the private citizen would not be liable under the Espionage Act, because they had no obligation to protect the information from disclosure to the foreign government.
One wonders how this case would have differed if the two lobbyists indicted had been employees of the American-Iranian Political Action Committee.
Dropping the case also apparently declares open season on soliciting government employees to disclose classified information. I thought the puropse of laws was to deter undesirable behavior. It appears that soliciting government employees to disclose classified information is not an undesirable behavior.
The media seems to have rallied around the premise that the case should not be pursued because of the additional classified that could be revealed during a trial (graymail). Funny how this same argument fell on deaf ears when the defendant was Scooter Libby.
Finally, I am curious to see if the media also rallies around Nathanial Nicholson, son of convicted spy Harold Nicholson. Similar to Rosen and Weismann, Nathanial was not a government employee, but appears to have been charged under the Espionage Act.
http://wcbstv.com/national/ex.cia.spy.2.921378.html
Should the case against Nathanial similarly be dismissed under the 'Rosen/Weismann' defense (he was not a government employee, and therefore had no obligation to protect classified information)? What makes his actions different than Rosen/Weismann? They are both alleged to have passed classified information to a foreign government that they received from a government/former government employee. Why isn't the media lining up to support Nathanial Nicholson?
#2 Posted by Ross, CJR on Mon 4 May 2009 at 02:39 PM
Ross:
Whether or not inducing someone to commit a felony is technically a crime, if that really were the standard for prosecution here, any reporter who'd ever placed a phone call asking a source to reveal something that was classified would be a criminal. I'm sure you can see how dangerous that precedent would be.
And, as far as Nathaniel Nicholson goes, yes, the charges against him stem from spying activity. But you take a look, you'll see that he was indicted (*.pdf here) for money laundering, and failing to register as a foreign agent--not under the same Espionage Act as Weissman and Rosen. The comparison is not relevant.
#3 Posted by Clint Hendler, CJR on Mon 4 May 2009 at 03:10 PM
Clint:
Thank you for your response.
Along the same lines as your 'dangerous precedent' point, isn't the dropping of this case, along with the pending "Free Flow of Information Act" also setting the precedent that government employees should simply skip the appropriate internal processes specifically established to review potential issues involving classified information.
There are two Whistleblower Acts which specifically establish procedures for government employees to identify items of concern. Should gov. employees simply go directly to the media?
Should journalists be given carte blanche to solicit government employees to commit a felony by disclosing classified information? Would federal privelege for journalists extend to all media (television, radio, internet)? Would a blogger be covered? If so, how many people, if any, would have to read his/her blog? Could anyone with a Facebook page solicit government employees for classified information with impunity? Should 'journalists' be considered a priveleged class, with protections not afforded to average citizens?
Going back to my understanding of the purpose of laws (to prevent undesirable behavior), do we really want anyone to have the ability to attempt to solicit government employees for classified information.
Looking at the Rosen case in particular (bigger picture aside), do you believe what Rosen and Weismann were doing was appropriate? Should private citizens (not even journalists) be able to do whatever they like with classified information, if they're somehow able to convince a government employee to disclose it to them? Do you see the slippery slope there?
If a private citizen was able to collect classified information from a government employee, and then turn around and sell it to a foreign government, should they not be liable under the Espionage Act?
What safeguard is there to prevent a journalist from disclosing classified information that truly damages national security (See Katharine Graham's 1984 quote about the media disclosing the fact that the U.S. was intercepting communications from a Libyan terrorist group . . after which the communications ceased and the terrorist group was able to plan and execute the bombing of the Marine barracks in Lebanon.)
#4 Posted by Ross, CJR on Tue 5 May 2009 at 02:53 PM
". . . as far as Nathaniel Nicholson goes . . . he was indicted for . . . failing to register as a foreign agent . . ."
If you believe that the FARA statute is more appropriate (agent of a foreign power) would you support similar charges against Rosen / Weissman? Based on the indictment, it appears the government contends that they passed information to foreign nationals.
Is it the use of the Espionage Act that you disagree with (because of the parallel's to journalism) or do you actually agree with Rosen / Weissman's actions and feel they shouldn't be prosecuted?
#5 Posted by Ross, CJR on Wed 6 May 2009 at 10:14 AM
Ross, I'm going to leave the question of FARA on the table. I don't know much about that law—maybe a FARA prosecution would be appropriate here, maybe not. I'm not defending what Weismann and Rosen did—I just don’t like the idea of it being illegal under the Espionage Act.
But I am ok with the act of leaking classified information being illegal if you have some official obligation to keep secrets. (Though in my book, even this principle needs a hefty dose of prosecutorial discretion.) Again, I’m not ok with criminalizing the dissemination of classified information once you’ve come to know it.
I’ll admit that I’m queasy about the idea of a U.S. citizen tromping around Washington and assembling classified information for the specific use of a foreign government. But it seems to me that responsibility for the safe handling of classified information must rest with those officials obligated to tend it. That’s why no one’s too upset about Franklin’s conviction, especially since, as he admitted as part of his plea bargain, he sought Rosen’s assistance in obtaining a promotion. Talk about a quid pro quo.
To criminalize Rosen and Weissman’s actions under the Espionage Act comes dangerously close to setting something up like Britain's Official Secrets Act, which criminalizes the dissemination of certain classified information, period—no matter if you are an official with access to the information as part of your job, or a private citizen who learns that information (i.e. a journalist).
Scott Horton at Harper’s just put up an excellent and persuasive post arguing that the AIPAC case was an attempt to create something akin to a Secrets Act via a court ruling.
And in my book, that goal was very dangerous, an assault on the First Amendment that would be ripe for abuse and would lessen government accountability.
You also raise the side issue (I'm calling it that since I haven't said a word about a special journalist-only privilege) of the unpassed Free Flow of Information Act, colloquially known as the shield law. The act provides this definition of journalism: “the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”
Should something like the act ever become law, courts will sort out the admittedly thorny question of how professional, how popular, etc., the person engaging in journalism will have to be.
#6 Posted by Clint Hendler, CJR on Wed 6 May 2009 at 10:51 AM
According to the shield law definition, anyone with a MySpace or Facebook account would have the authority to solicit government employees to commit a felony. Additionally, they would be immune from having to testify during court proceedings such as a grand jury. This would mean that millions of Americans would have the ability to solicit and (if successful) witness a felony without any fear of having to disclose this fact during criminal proceedings.
You mention slippery slopes and dangerous precedents. Do you recognize the potential for abuse in this scenario?
The Supreme Court commented on this issue on several occasions. In the Pentagon Papers decision, several Justices agreed that they would have no difficulty in upholding convictions under the Espionage Act for members of the media who disclosed classified information (as opposed to prior restraint, which they held to a higher burden).
In his opinion, Chief Justice Burger wrote:
"To me, it is hardly believable that a newspaper long regarded as a great institution in American life would fail to perform one of the basic and simple duties of every citizen with respect to the discovery or possession of stolen property or secret government documents. That duty, I had thought -- perhaps naively -- was to report forthwith, to responsible public officers. This duty rests on taxi drivers, Justices, and the New York Times."
In his opinion for the Branzburg v. Hayes case (affirming that the media had no federal privelege protecting them against having to reveal a source), Justice White wrote:
"It would be frivolous to assert . . . that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news."
Can a memeber of the media be relied on to correctly select what classified information can be published, with potentially competing interests, such as increasing circulation/ratings, winning a pulitzer prize, or getting a better byline or securing a book deal?
Members of the media (including Lake above) identify the need to inform the public of actions taken by the government of thier behalf. Why then, should the source of the information not be identified. Shouldn't the public be allowed to judge for themselves the level of credibility to give to the source and the information? Haven't there been numerous instances in which apparently important stories (Bush National Guard service, Desecration of the Koran, abuses by U.S. troops in Afghanistan) were later found to not be credible? Perhaps if the sources were identified, these errors would not have occurred (and in the case of the Koran story, not led to civilian deaths resulting from subsequent protests and riots).
Why should the government be given such large latitude to protect classified information but then once the information is disclosed (based on an illegal action) not have the ability to prevent further disclosure (and harm to national security)?
#7 Posted by Ross, CJR on Thu 7 May 2009 at 08:58 AM