First Amendment Issues Raised About Espionage Act

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By Walter Pincus
Washington Post Staff Writer
Friday, March 31, 2006

The federal judge overseeing prosecution of two former lobbyists charged with receiving and transmitting national defense information under the 1917 Espionage Act has given the government until today to respond to defense claims that the statute is unconstitutionally vague and overbroad and may violate the First Amendment.

U.S. District Judge T.S. Ellis III ordered the government to provide the additional support for the charges filed last August against Steven J. Rosen and Keith Weissman, former lobbyists for the American Israel Public Affairs Committee (AIPAC). The two were accused of receiving classified information during conversations with government officials, one of whom, then-Pentagon employee Lawrence A. Franklin, warned Weissman that the information he was giving was highly classified.

At a hearing last Friday on the defendants' motion to dismiss the indictments, Ellis directed a series of questions to Assistant U.S. Attorney Kevin DiGregory expressing concern that the government had not dealt with constitutional issues raised by the defense.

"I didn't find your response in writing to match up with the fairly extensive attack by the defendants . . . so I am going to have further briefing," Ellis said. Last January, at the hearing where he sentenced Franklin to 12 years for passing classified information to the two lobbyists, Ellis called attention to the imprecise nature of the almost 90-year-old statute that restricts disclosure of "national defense information" that could harm U.S. interests or help enemies.

Ellis also said he had thought there would be well-established precedent he could follow, since the statute had been around for so long. But it has turned out that Rosen and Weissman are the first nongovernment employees to be indicted under the act for receiving classified information orally and not through documents or other tangible items.

"I think we are a bit in new, uncharted waters and that's why I'm going to consider this matter extremely carefully," Ellis told DiGregory and attorneys Abbe Lowell and John Nassikas, who represent Rosen and Weissman.

The case is drawing the attention of First Amendment attorneys because both Ellis and prosecutors have noted that the two lobbyists -- in receiving and disseminating the information -- are doing what journalists, academics and experts at think tanks do every day.

Floyd Abrams, a New York attorney who has represented the New York Times in a variety of high-profile cases, said in an interview this week that the AIPAC case "is the single most dangerous case for free speech and free press." Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy, wrote on his Web site this week: "Anything other than a dismissal of the charges would mark a dramatic shift in national security law and a significant reduction in First Amendment protections."

Attorneys for the AIPAC lobbyists argue that First Amendment protections bear on the case because their clients were exercising their free speech rights.

DiGregory argued that oral disclosure of defense information was not protected speech because someone could be telling the contents of a classified document.

To read the statute that narrowly "would do great damage to our ability to protect national security," DiGregory said.

Ellis said the government must respond to the defense argument that the statute, which does not define "national defense information," is so vague "that men of common intelligence necessarily must guess at its meaning and differ as to its application."

The judge also told prosecutors to deal with another defense argument: that the statute does not provide "fair warning," since this is the first time it has been applied to civilians. Due process "bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope," Ellis said.

DiGregory conceded that every case up to now cited by the government has involved either government employees or the passing of classified papers.

Ellis also raised the question of what would happen if people to whom Rosen passed the defense information relayed it to someone else. "Would it [the criminal liability] continue to apply ad infinitum?" he asked. DiGregory replied, "That's a difficult question to answer in the abstract."


© 2006 The Washington Post Company

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