By Walter Pincus
Washington Post Staff Writer
Friday, March 24, 2006
The federal judge presiding over the prosecution of two former lobbyists has focused attention on the imprecise nature of the law they are charged with breaking, the 1917 Espionage Act that restricts the dissemination of national defense information that could harm U.S. interests.
In January, U.S. District Judge T.S. Ellis III raised the possibility that the law may not be sensibly written, as he sentenced a former Defense Department employee, Lawrence A. Franklin, to 12 years in prison for giving classified information to the two former lobbyists for the American Israel Public Affairs Committee, or AIPAC.
Despite the law's possible shortcomings, Ellis said in an unusual statement from the bench, it is up to Congress, not the court, to decide if the statute needs to be changed.
"The law says what it says," Ellis said. "The merits of the law really are committed to Congress. If it's not sensible, it ought to be changed. But they're . . . the body that changes it, not the judiciary."
Today, attorneys for the former lobbyists, Steve Rosen and Keith Weissman, will argue for dismissal of the indictment based in part on the claim that the Espionage Act was meant to cover spying, not the possession of leaked classified information, particularly leaked information possessed and transmitted by people who are not government employees. As stated in their Jan. 19 motion, attorneys say what Rosen and Weissman are charged with "is what members of the media, members of the Washington policy community, lobbyists and members of congressional staffs do perhaps hundreds of times every day."
The Espionage Act makes it illegal for an unauthorized person to have "unlawful possession" of "information relating to the national defense." As written, it does not require that such information be classified. To break the law, the people involved must also believe the information "could be used to the injury of the United States and to the advantage of any foreign nation." It also makes it illegal for people with such "unlawful possession" to communicate such information if they have "reason to believe" it could injure the United States or aid another country.
In response to the Rosen-Weissman motion, the Justice Department attorneys said in their motion that the defendants have doctorates and "would know that foreign officials, journalists and other persons with no current affiliation with the United States government would not be entitled to receive information related to our national defense."
Last August, in announcing the indictment, Deputy Attorney General Paul J. McNulty, then the U.S. attorney for the Eastern District of Virginia, said there was "a clear line in the law," and "those not authorized to receive classified information must resist the temptation to acquire it, no matter what their motivation may be."
The AIPAC case, which represents the first time nongovernment employees have been prosecuted under the 89-year-old Espionage Act for receiving leaks from a government official, has drawn increasing attention from First Amendment advocates and others concerned that it represents a sharp break from Justice Department practices.
At Franklin's sentencing, Ellis said any debate over the statute and "whether it's a sensible law" was "irrelevant" to Franklin's situation because he had clearly violated it. "That doesn't mean we shouldn't debate whether the law is a good law or not, as a people," he said, adding, "It doesn't mean that Congress shouldn't consider it. It's not for the court to say."