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Dangerous Prosecution

Thursday, March 23, 2006

THE UNITED STATES has never had an Official Secrets Act -- a law that would forbid anyone, even a private citizen, from disclosing information the government wants to keep under wraps. But if the Justice Department has its way in the prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC), it will effectively have created one -- without even going to Congress for a change in the law. The case against Steven J. Rosen and Keith Weissman is heading toward trial. Their conviction would herald a dangerous aggrandizement of the government's power not merely to prosecute leaks but to force ordinary Americans to keep its secrets.

Mr. Rosen and Mr. Weissman are accused of conspiring to give national defense information to people not authorized to receive it -- including officials of the Israeli government, a Post reporter and other officials at AIPAC. Despite the suggestive tenor of the indictment, prosecutors have not accused either man of spying. Rather, the government has charged them under an old and vaguely worded law that prohibits people in possession of such information from disclosing it further.

The reach of this law, which dates from the World War I era, has never been clear. By its terms, it would seem to require every person to protect the government's secrets -- a principle hardly in keeping with the American system of robust public debate. While it is reasonable for the government to demand that its employees and contractors protect the information it entrusts to them, it's not okay to criminalize discussions among people who do not work, directly or indirectly, for the government. Traditionally, the government has treaded carefully with this law, using it sparingly even against government employees.

The AIPAC case marks a dangerous break with that tradition. We do not defend the alleged actions of Mr. Rosen and Mr. Weissman, whom AIPAC fired. According to the indictment, they received classified information from Pentagon analyst Lawrence A. Franklin and passed it to the Israeli Embassy. The indictment alleges similar behavior in the past. But the government isn't even trying to prove spying charges. Instead, prosecutors have proceeded under a legal theory that must alarm anyone who values open debate.

Under the government's reading of the law, there is no reason why newspaper reporters who publish classified information could not face charges. Nor, indeed, would anything protect activists who brought secrets to members of Congress. Under the government's theory, in fact, countless conversations and publications that take place every day are criminal acts. The government makes this point explicitly in its briefs: While acknowledging that a prosecution of "an actual member of the press for publishing classified information" would "raise legitimate and serious issues," it says that "[there] plainly is no exemption in the statutes for the press, let alone lobbyists like the defendants." You don't have to anticipate an immediate raft of prosecutions of such people to appreciate the danger of a precedent that would permit it.

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