By Walter Pincus
Washington Post Staff Writer
Thursday, April 20, 2006
The judge overseeing the prosecution of two former pro-Israel lobbyists charged with violating the 1917 Espionage Act has set an unusual second oral argument for tomorrow on the defendants' motion to dismiss the charges.
Steven J. Rosen and Keith Weissman, accused of receiving and transmitting national defense information, contend that the espionage statute is unconstitutionally vague and overbroad and may violate the First Amendment. Rosen and Weissman are the first nongovernment civilians to be prosecuted under the Espionage Act for receiving national defense information orally.
In January, U.S. District Judge T.S. Ellis III raised the possibility that the law may not be sensibly written when he sentenced a third person in the case, former Defense Department employee Lawrence A. Franklin, to 12 years in prison for giving classified information to Rosen and Weissman, former lobbyists for the American Israel Public Affairs Committee (AIPAC).
Last month, after hearing oral arguments on dismissing the case against Rosen and Weissman, Ellis took the unusual step of ordering the Justice Department to respond to defense claims of unconstitutionality. Yesterday, after receiving the government's filing and the defendants' response, Ellis ordered another oral argument on the motion to dismiss.
"That is a very unusual step for a judge to take in a case like this, which is going into areas we avoided in the past," said one former Justice Department senior prosecutor with experience in espionage cases who spoke on the condition of anonymity because of that role.
In open court in January, Ellis said, "I think we are a bit in new, uncharted waters and that's why I'm going to consider this matter extremely carefully."
In arguing against that position, the government has focused on a 60-year-old case that involved a Soviet intelligence agent who was living and working in the United States and was found guilty of receiving national defense information orally.
The case has drawn attention from First Amendment lawyers because Ellis, the prosecutors and the defense attorneys have all noted that the two lobbyists, in receiving and disseminating classified information, are doing what journalists, academics and experts at think tanks do every day.
In another unusual move, the government asked Ellis yesterday to hold a closed hearing on the case and supported it with a petition from Deputy Attorney General Paul J. McNulty.
Last August, when McNulty, then U.S. attorney for the Eastern District of Virginia, announced the indictments, he said that there was "a clear line in the law," and that "those not authorized to receive classified information must resist the temptation to acquire it, no matter what their motivation may be."