By Walter Pincus
Washington Post Staff Writer
Tuesday, February 14, 2006
The former head of the Justice Department's Office of Legal Policy helped write a memorandum of law calling for dismissal of Espionage Act charges against two pro-Israel lobbyists, arguing that, in receiving leaked classified information and relaying it to others, they were doing what reporters, think-tank experts and congressional staffers "do perhaps hundreds of times every day."
Viet D. Dinh, who helped draft the USA Patriot Act after the Sept. 11, 2001, attacks, has joined with lawyers defending Steven J. Rosen and Keith Weissman, former employees of the American Israel Public Affairs Committee (AIPAC), who last year became the first non-U.S. government employees to be indicted for allegedly violating provisions of the Espionage Act.
"Never has a lobbyist, reporter, or any other non-government employee been charged . . . for receiving oral information the government alleges to be national defense material as part of that person's normal First Amendment protected activities," the defense memorandum states.
In addition, since no classified documents are involved, the two lobbyists are being accused of receiving oral classified information during conversations with government officials, one of whom warned Weissman that "the information he was about to receive was highly classified 'Agency stuff,' " according to the indictment.
That government official in this instance was Lawrence A.Franklin, who at the time worked in the policy office at the Pentagon. He recently pleaded guilty to violations of the Espionage Act and was provisionally sentenced to 12 years in prison, with the sentence to be reviewed depending on his cooperation with the government in the Rosen-Weissman trial and any other related investigations.
The defense memorandum was filed under seal in U.S. District Court for the Eastern District of Virginia on Jan. 19 and, according to Rosen's attorney, Abbe D. Lowell, was unsealed last Thursday at the request of the defense.
In the 90 years since the act was originally drafted, according to the Dinh memorandum, "there have been no reported prosecutions of persons outside government for repeating information that they obtained verbally, and were thus unable to know conclusively whether or to what extent that information could be repeated."
Dinh, who has returned to teaching at Georgetown University Law Center after leaving the Bush administration, said in an interview yesterday that the espionage statute is very broad and vague in its language and normally requires "bad faith" on the part of those in violation. The memorandum quotes Patrick J. Fitzgerald, special counsel in the CIA leak case, who said in a news conference that the espionage law is "a difficult statute to interpret" and "a statute you ought to carefully apply."
"Prosecuting the leakee for an oral presentation . . . presents a novel case because the listener has no evident indicia for knowing what relates to national defense," Dinh said. He noted that he could find only one case in which the disclosed information may have been made only orally. In that case, an Army intelligence officer leaked defense information and only he was charged. He was acquitted, "indicating that the government should have thought twice before now trying to stretch the statute even further."
The memorandum notes that the statute contemplates the passing of physical evidence, such as documents with classification stamped not just on each page but also alongside each paragraph. One section of the law says that a person who has improperly received a classified leak commits a crime if "he willfully retains the same and fails to deliver it to the officer or employee entitled to receive it." The memorandum says that the provision cannot cover orally received information since recipients " 'retain' it in memory and it is physically impossible to 'deliver' it back to the United States."
Another reason for dismissing the case, according to the memorandum, is that "if the instant indictment and theory of prosecution are allowed to stand, lobbyists who seek information prior to its official publication date and reporters publishing what they learn can be charged with violating section 793" of the espionage statute. The memorandum also points out that "on many occasions, the media boldly state that they have classified material," which they publish after soliciting and receiving leaks.
Lowell said that his client and Weissman "have been indicted as felons for doing far less than for what reporters have been awarded Pulitzer Prizes." In the memorandum, reference is made to Washington Post reporter Dana Priest's articles on CIA secret prisons for alleged terrorists, for which a leak investigation is underway. FBI agents are also investigating the leak to the New York Times about the National Security Agency's domestic surveillance program.