By Jerry Markon
Washington Post Staff Writer
Wednesday, August 23, 2006
A federal judge has ordered an investigation into how reporters learned that two pro-Israel lobbyists were under federal investigation before they were formally charged, creating even more scrutiny of the media in a case with broad First Amendment implications.
The order by U.S. District Judge T.S. Ellis III in Alexandria came in the case against Steven J. Rosen and Keith Weissman, who are charged with receiving and disseminating national defense information. Legal experts say the case could lead to criminal prosecutions of reporters or newspapers that print information the government has classified.
In an entry on the docket in U.S. District Court, Ellis ordered the Justice Department to conduct a leak investigation into whether government employees disclosed details of the investigation to CBS News in 2004. The docket entry was dated last week, but Ellis further explained it in a previously classified order made public yesterday.
In that order, Ellis denied defense requests to throw out much of the evidence against Rosen and Weissman, partly because of leaks to the media, but said defense attorneys could renew their motion later if the leak investigation results "warrant doing so."
"A single unauthorized leak" is not "sufficient to warrant suppression of the entire investigation," Ellis wrote, citing reports about the case that ran in the New York Times and the Miami Herald.
Federal prosecutors declined to comment on whether the leak investigation has begun, and a spokesman for CBS News declined to comment. Ellis has instructed prosecutors to report to him on the status of the inquiry by Sept. 15.
Attorneys for Rosen and Weissman also declined to comment yesterday, but sources familiar with the case said they have been arguing in numerous sealed motions that the leaks violated their clients' rights and could prejudice potential jurors against them.
Rosen and Weissman were charged last year with violating the Espionage Act in what prosecutors call a conspiracy to obtain classified information and pass it to members of the media and the Israeli government. They are former employees of the powerful American Israel Public Affairs Committee, or AIPAC.
The lobbyists are the first civilians who do not work for the government to be charged under the 1917 espionage statute with orally receiving and transmitting national defense information. Court documents say the information covered subjects including the activities of al-Qaeda and possible attacks on U.S. forces in Iraq.
The case has alarmed First Amendment advocates and some lawyers, who say it criminalizes the type of information exchange that happens every day among journalists, lobbyists and others in Washington. Prosecutors have argued that disclosing sensitive defense information could harm national security.
Federal authorities are conducting a number of investigations of leaks of classified information to journalists, and legal experts said Ellis's order is noteworthy because it is unusual for a judge to initiate such an inquiry.
"It's one of the first tangible signs that the view of the Bush administration, that journalists are not immune from prosecution for trafficking in classified information, might have currency with some federal judges," said Rodney A. Smolla, dean of the University of Richmond Law School and an expert on First Amendment law. He said it is an "open question" whether federal law allows for the prosecution of journalists for publishing classified information.
The possibility of such prosecutions has swirled around Washington since the New York Times broke a story in December about the National Security Agency's surveillance of terrorist-related calls between people in the United States and abroad.
Attorney General Alberto R. Gonzales has suggested publicly that New York Times journalists could be prosecuted for the NSA articles, and federal authorities are investigating other possible leaks that led to reports in The Washington Post about secret CIA prisons, law enforcement and intelligence officials have said.
Ellis, meanwhile, may have further opened the door to criminal prosecutions of reporters with another recent ruling, legal experts have said. The judge rejected defense arguments to dismiss the indictments against Rosen and Weissman, saying that they -- and others -- can be prosecuted if the government thinks they disclosed information harmful to national security.