Ruling Raises Bar in Lobbyists' Case

By Walter Pincus
Washington Post Staff Writer
Saturday, August 19, 2006

The federal judge who last week refused to throw out charges of conspiring to violate the 1917 Espionage Act against two former pro-Israel lobbyists simultaneously made it much more difficult for the government to prove its case against them, attorneys for the defendants and First Amendment advocates contend.

In a controversial case with wide free-speech implications, two former lobbyists for the American Israel Public Affairs Committee (AIPAC), Steven J. Rosen and Keith Weissman, were charged with conspiring to obtain national defense information from U.S. government officials and pass it on to members of the media and Israeli government officials.

They are the first U.S. citizens not employed by the government to be charged under the 89-year-old law for allegedly receiving and transmitting such information verbally, rather than through classified documents.

In his Aug. 10 opinion, U.S. District Judge T.S. Ellis III said the law is constitutional. But for the government to prove its case, he ruled, it must show that the two men disclosed national defense information "closely held by the government" and that each "had bad faith purpose" in passing it to others, knowing it "could be potentially damaging to the United States" or "useful to an enemy of the United States."

The former lobbyists have contended that, unlike spies, they were receiving and passing on information as part of their First Amendment right to carry on public discussions about defense and foreign policy issues. Ellis supported that concept and refused to accept the government's assertion that "Espionage Act prosecutions are immune from First Amendment scrutiny."

Ellis said that "the defendants' First Amendment interests [are] at stake in this prosecution," along with those of journalists, academics, think-tank experts and others who argue that the prosecution would infringe on their ability to discuss national security information.

Some experts argued last week that Ellis may have opened the door to criminal prosecutions of reporters or newspapers for publishing classified information. But in an interview, Rosen's attorney, Abbe D. Lowell, said that "to obtain convictions, prosecutors would have to prove that the defendants knew what they were doing was illegal and, in some instances, knew the disclosures could harm American national security or be helpful to a foreign nation."

The government would also have to prove that "national security is genuinely at risk" because of the alleged actions of Rosen and Weissman, Lowell added.

A spokesman for government prosecutors said they would have no comment on the case.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the portion of Ellis's decision requiring proof of intent to harm the United States or help an enemy "gave a bit of relief and something to work with" should journalists become the focus of prosecutions.

Dalglish was less sanguine about Ellis's suggestion that the time had come for Congress to review and perhaps update the espionage law. In his opinion, Ellis wrote: "The conclusion that the statute is constitutionally permissible does not reflect a judgment about whether Congress could strike a more appropriate balance between these competing interests, or whether a more carefully drawn statute could better serve both the national security and the value of public debate."

Ellis said changes in the position of the United States in world affairs since the law was passed, along with the complexity of the country's military and foreign policy establishments, suggest "that the time is ripe for Congress to engage in a thorough review and revision of these provisions" to ensure that they balance national security and free-speech rights.

Dalglish called the idea of Congress taking up the issue "a distressing thought." She noted that Sen. Christopher S. Bond (R-Mo.) recently introduced a bill that would punish government employees who leak classified information, without prosecutors having to prove harm to the United States or aid to a foreign government. A similar bill was vetoed by President Bill Clinton.

Kate Martin, director of the Center for National Security Studies in Washington, noted that the Bush administration carried out a review of secrecy laws and decided in October 2002 that no changes were needed.

In a separate ruling in the case last week, Ellis said the government could not introduce evidence that a document sought by Weissman from a government official was classified by the CIA. The AIPAC defendants have contended that they never sought classified information and that the document they sought was unclassified.

According to Ellis's ruling, the paper was a "publicly distributed" document of a foreign government, but the CIA's "identical copy of that document is classified." To introduce that as evidence, Ellis said, "may mislead the jury into believing that Weissman sought a classified document."

Researcher Julie Tate contributed to this report.

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