By Walter Pincus
Washington Post Staff Writer
Friday, February 17, 2006
The chairman of the Senate Select Committee on Intelligence said yesterday that he may add language to the fiscal 2007 intelligence authorization bill to criminalize the leaking of a wider range of classified information than is now covered by law. He indicated the new measure would be similar to legislation vetoed by President Bill Clinton more than five years ago.
The statement by Chairman Pat Roberts (R-Kan.) comes as Bush administration is campaigning against leaks and focusing on the people who receive and distribute them, including journalists.
The Justice Department for the first time is prosecuting two people who are not government officials for receiving and distributing classified national defense information told to them by a Pentagon employee, Lawrence A. Franklin, who pleaded guilty last month. The charges are against Steven J. Rosen and Keith Weissman, former lobbyists for the American Israel Public Affairs Committee (AIPAC) whose trial is scheduled for April.
Meanwhile, the FBI is investigating the sources of information for the New York Times article disclosing the National Security Agency's domestic surveillance operations. And the CIA has an internal investigation to discover sources for articles in The Washington Post on CIA secret overseas prisons for suspected terrorists. CIA Director Porter J. Goss told Congress he hoped that eventually journalists who report leaks would be put before federal grand juries and forced to reveal their sources.
Yesterday, Roberts told Fox News he may support a stricter law.
"I've often said a leak is not a leak in Washington until somebody gets wet, but we're all in the swimming pool," Roberts said. Recalling the legislation Clinton vetoed, Roberts said, "Whether it's a reporter or just any individual or somebody by the water cooler who's upset or somebody who has just a very strong difference of opinion knowingly reveals classified information, that would be a felony."
Since the Clinton veto, he added, "I think times have changed, and we may be introducing that in the intelligence authorization bill." A spokesman for Roberts said late yesterday, "A lot of items are on the table to curb leaks, but we have other matters to take up first." A senior Democratic staff member said Sen. John D. Rockefeller IV (D-W.Va.) and his colleagues "are concerned about leaks, but they don't see legislation as the remedy."
Clinton vetoed a measure by Sen. Richard C. Shelby (R-Ala.) that would have broadened the law that criminalizes release of "national defense information."
Civil liberties groups and news organizations, which argued that the legislation would chill their ability to get information from officials, lobbied for the veto, which Clinton exercised in 2000.
In 2002, with George W. Bush in the White House, Shelby reintroduced his language, but then-Attorney General John D. Ashcroft said that "rigorous investigation" and enforcement of existing laws -- not new legislation -- were the best way to fight leaks.
A lawyer familiar with the AIPAC case said administration officials "want this case as a precedent so they can have it in their arsenal" and added: "This as a weapon that can be turned against the media."
U.S. District Judge T.S. Ellis III, when he sentenced Franklin in the AIPAC case to more than 12 years in prison, told the courtroom that he believed that civilians are just as liable as government employees under laws governing classified information.
"Persons who have unauthorized possession, who come into unauthorized possession of classified information, must abide by the law," Ellis said. "That applies to academics, lawyers, journalists, professors, whatever."
Another possible precedent is found in the Pentagon Papers case, which has become a symbol for press freedom to publish information the government deemed classified. What is sometimes overlooked is that the Nixon administration chose to try to prevent publication of the Pentagon Papers, rather than waiting until after articles were published and indicting the three newspapers, the New York Times, The Washington Post and the Boston Globe.
The Supreme Court in 1971 rejected the government's attempt to exercise prior restraint, but a majority of justices indicated that they probably would have approved criminal indictments after articles were published. As Harvey Silverglate recently noted in the Boston Phoenix, then-Justices Byron R. White and Potter Stewart listed the Espionage Act and other laws that "arguably rendered such publication criminal."
"Defense lawyers would doubtless argue, probably effectively, that their clients performed a public service by exposing official wrongdoing at the highest levels of government," Silverglate wrote. "One can imagine defense counsel quoting Thomas Jefferson that 'between a government without newspapers or newspapers without government, I would surely choose the latter.' It would be one helluva fight."