Dangerous Prosecution

Thursday, April 20, 2006

WHILE NO ONE is paying much attention, the Bush administration is promoting a reading of an old and largely moribund law that could radically diminish the openness of U.S. government while criminalizing huge swaths of academic debate and journalism. No one has announced it in so many words, but if the government succeeds, for the first time non-officials -- activists, congressional staffers, journalists -- would be deemed criminal for transmitting secret information or even for just receiving it.

You can see this effort in the government's prosecution of two former officials of the American Israel Public Affairs Committee and again this week in the FBI's attempt to seize control of the papers of the late columnist Jack Anderson. Steven J. Rosen and Keith Weissman, the former AIPAC officials, are charged with conspiring to disclose national defense information to people not authorized to receive it -- including their AIPAC colleagues, officials of the Israeli government and a reporter for The Post. The government did not charge them under a normal spying law. Instead, it invoked a World War I-era statute that prohibits people who receive secret information from disclosing it further.

If that sounds scary, the government arguments in its favor are even scarier. For one thing, prosecutors assert in a recent brief that "there is simply no First Amendment right to disclose national defense information." Does this mean academics have no right to debate the legality of the wiretapping program of the National Security Agency, the facts of which have mostly been revealed in leaks? Does it mean that an activist who gets information from a whistle-blower has no right to disclose it to a member of Congress? According to the government, it does.

The government claims that the statute is limited enough not to be worrying, because it requires, among other things, that a person must believe that the information could be used to help a foreign country or hurt the United States. But most sensitive information can be used to help a foreign nation -- even if it can also be used to inform the American people.

Prosecutors also would make it a crime for private citizens to receive improper leaks -- though their brief denies it. In one count, the government charges the AIPAC officials with conspiring with their source, former Pentagon official Lawrence A. Franklin, to have him disclose information to them -- and then to disclose it further. In a separate count, Mr. Rosen is charged with aiding and abetting Mr. Franklin's leak to him by providing a fax number to which to send the material. If this is a crime, then journalists and congressional staffers could be as vulnerable as people who wrongly provide information to a foreign power.

The late Mr. Anderson's case makes clear that this problem is not merely theoretical but real and immediate. The FBI recently sought to go through his papers and take back those it deemed classified. It's the same legal theory at work, as the bureau's spokesman, Bill Carter, explained: "Under the law, no private person may possess classified documents that were illegally provided to them."

Until now, two things have prevented this law from morphing into an American version of Britain's Official Secrets Act: discretion on the part of prosecutors and the belief that the courts would not tolerate a reading of it that ran smack into the First Amendment. Prosecutors have thrown discretion to the wind; now it's up to the courts.

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