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Opinion Could Dampen Zeal To Classify Government Information

By Walter Pincus
Monday, February 23, 2009

If it is ultimately upheld, a memorandum opinion written by a federal judge in Virginia and released last week may limit the overclassification of information on national security grounds and prevent future prosecutions for leaking such information.

The opinion could also spell the end to a four-year effort by the Justice Department to convict two former pro-Israeli lobbyists for allegedly violating the Espionage Act by passing classified government information to journalists and an Israeli Embassy official.

U.S. District Judge Thomas S. Ellis III wrote the Feb. 17 opinion in a case, brought originally in 2005, that involves Stephen J. Rosen and Keith Weissman, both of whom at the time were working for the American Israel Public Affairs Committee (AIPAC). Their jobs were to lobby U.S. executive and legislative branch officials who had policymaking responsibilities in areas of AIPAC's interest.

It was the first time two civilian nongovernment employees were indicted under the Espionage Act. Rosen and Weissman were charged with violations of the 1911 espionage statute by transmitting national defense information to people not entitled to receive it and to an agent of a foreign power. The practical implications of the charges were enormous, because the type of information gathered and passed on by the two lobbyists was similar to that collected every day by Washington journalists and think-tank analysts who cover national security affairs.

For example, Ellis noted in his opinion that the alleged defense information passed included the "existence (but not contents) of a 'classified FBI report on the Khobar Towers bombing,' " information about "terrorist activities in Central Asia" and a "classified draft internal United States government policy document concerning a Middle Eastern country." All that alleged classified information was transmitted orally, with the exception of one typed document about the contents of an appendix to the above-mentioned "draft."

The immediate purpose of Ellis's opinion was to settle whether to permit expert testimony on behalf of the defendants by J. William Leonard, a retired Defense Department senior security official. Leonard, who retired last year, had been director of the government's Information Security Office responsible for oversight of the entire U.S. classification system.

Bush administration lawyers tried to block Leonard's appearance by arguing that he had participated "substantially" in the case. They contended that he was barred by law from testifying because he had met with a number of the Rosen-Weissman prosecutors in March 2006. Ellis, however, noted that the meeting lasted only one hour, during which they discussed the classification process generally and Leonard "shared his own general view regarding the government's over-classification of information."

Ellis also wrote that the defendants' lawyers said that Leonard had examined the alleged classified documents in the case and would testify about the "back channel" practice of government officials disclosing classified information to journalists and lobbyists "for the purpose of advancing national security interests." That claim would support the defendants' argument that some of the information in the case was passed to them by government officials, some of whom, including former secretary of state Condoleezza Rice, have been subpoenaed to testify if the matter goes to trial.

Ellis also said Leonard would testify in support of the defendants on the issue as to whether the national defense information in the case was "closely held by the government" and if disclosed "would be potentially damaging to the United States or helpful to an enemy." One of the latter two elements must be proved to get a conviction under the Espionage Act.

Ellis determined that the government's authority under an executive order to put a "confidential," "secret" or "top secret" stamp on information does not automatically qualify it as national defense information under the law. In fact, the judge specifically wrote that because the executive order and the espionage law create "different processes" and involve "different decision-makers," they are not necessarily identical. Executive branch officials have authority to classify, he said, while national defense information under the statute is decided "by a jury beyond a reasonable doubt" after a trial.

In the past, judges and juries have normally accepted as fact any government testimony that disclosure of classified information automatically was damaging to the U.S. or helped an enemy.

Perhaps Ellis's most important statement in the opinion is that the question of whether the classified information involved qualifies for protection under the Espionage Act will be "a major battleground at trial," and that it will be addressed at trial "largely through the testimony of competing experts."

The trial date has tentatively been set for April 21. But with one appeal of a past Ellis opinion by the Bush Justice Department pending before the U.S. Court of Appeals for the 4th Circuit in Richmond and the Obama administration yet to he heard from, this prosecution and any other like it is in doubt.

National security and intelligence reporter Walter Pincus pores over the speeches, reports, transcripts and other documents that flood Washington and every week uncovers the fine print that rarely makes headlines -- but should. If you have any items that fit the bill, please send them to fineprint@washpost.com.

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