THE UNITED STATES has never had an Official Secrets Act -- a statute forbidding private citizens from disclosing and discussing information the government wants to keep quiet. Last week it got one. The change didn't come from Congress but from a federal judge in Virginia. At the urging of the Bush administration, Judge T.S. Ellis discovered it in an old and vague law that prohibits disclosure of information related to the national defense.
Judge Ellis's dangerous decision comes in the case of two former executives of the American Israel Public Affairs Committee (AIPAC) -- Steven J. Rosen and Keith Weissman -- who are accused of conduct that skirts the legal line between legitimate advocacy and illicit espionage. The decision has far-reaching implications; if it stands, it will greatly augment governmental authority to compel Americans to keep quiet about what they know.
The government alleges that Mr. Rosen and Mr. Weissman conspired with a Pentagon employee to receive sensitive information from him and then give it to people not entitled to receive it -- including Israeli government officials, a reporter for The Post and colleagues at AIPAC. Prosecutors have not accused them of spying, a charge the alleged facts do not comfortably support. Instead, it has moved under a related provision of law that prevents people in possession of national defense information from disclosing it to others.
This law, murky in its scope since Congress passed its predecessor statute during World War I, would, on its face, ban anyone from giving sensitive information, itself not defined, to any other person. Judge Ellis conceded that it can't reach as far as its plain meaning would seem to indicate; the First Amendment surely limits the government's authority to prosecute people for gathering and reporting information.
Yet he then refused to throw out the case against Mr. Rosen and Mr. Weissman, ruling that national security sometimes trumps First Amendment rights and that the statute -- even as applied in this situation -- is consequently "a reasonable, and therefore constitutional exercise of [congressional] power."
One doesn't have to condone the alleged behavior of Mr. Rosen and Mr. Weissman to question this interpretation. It is certainly appropriate for the law to demand that government employees and contractors protect the secrets the government entrusts to them (the Pentagon employee in this case already has pleaded guilty). It is also clearly within the government's power to prosecute spies, whether or not they work for the government. But neither Mr. Rosen nor Mr. Weissman was a government employee during the period in question, and the government has not been able to muster a case against either for spying. If they can go to prison nonetheless for "espionage lite" -- that is, for obtaining, discussing and sharing sensitive information in the course of advocacy and lobbying -- then the government has effectively criminalized discussions among everyday citizens that reveal governmental secrets.
That's not the American tradition -- for which reason the government until now had never wielded this statute in this way. If it's really a crime to disclose or receive information you never swore to protect, whistle-blowers who bring secrets to Congress could be imprisoned for it. So could newspaper reporters who reveal classified information.
Judge Ellis was clearly uncomfortable with the implications of his decision. He acknowledged that "even the most casual observer" would want "Congress to engage in a thorough review and revision of these provisions" to strike a better balance between security and free speech. If his decision is not overturned, that will surely be necessary.