Bush Revives Espionage Act

Bush's war on the disloyal press climaxes in a trial on classified information.

Persons who come into unauthorized possession of classified information must abide by the law. That applies to academics, journalists, professors, whatever. —Federal District Judge T.S. Ellis III, who will preside over the case of United States of America v. Steven Rosen and Keith Weissman, charged with violating the Espionage Act of 1917.


This is the first prosecution ever of private citizens for receiving and distributing classified information. —Floyd Abrams, "The State of Free Speech," New York Law Journal, October 18.


These charges potentially eviscerate the primary function of journalism—to gather and publicize information of public concern—particularly where the most vulnerable information to the public . . . is what the government wants to conceal. —Reporters Committee for Freedom of the Press, with which this Voice columnist is affiliated.


Not many Americans know about this trial, slated for next January, that could result in future government suppression of news stories—based on classified information—suchas The Washington Post's reports by Dana Priest of CIA secret prisons in Europe and the James Risen–Eric Lichtblau New York Times revelations on the National Security Agency's secret, warrantless spying on Americans.

The defendants, Steven Rosen and Keith Weissman, are former and dismissed staff members of the American Israel Public Affairs Committee (AIPAC), the leading pro-Israel lobbying organization.

They are accused by the Justice Department of having received classified information from a Defense Department analyst, Lawrence Anthony Franklin, who has since pleaded guilty and been sentenced to prison. Rosen and Weissman are charged with giving the information to an Israeli diplomat—and to a journalist.

"There's little difference between what the defendants are charged with and what reporters and advocates do day-to-day," says Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy. Aftergood says a conviction would put this nation far along the path to having its own Open Secrets law, the British measure that bars public interest as a defense for revealing classified information. "That would mean a fundamental transformation of the American government," he continues. "Retreating from freedom of the press would mean surrender of the principles of self-rule as the best form of government."

Floyd Abrams, the John Bunyan of First Amendment lawyers, emphasizes: "Anyone who covers the CIA, the Department of Defense, or the Department of Homeland Security is routinely provided classified information by people in and out of government. Only this permits any serious discussion of the government's most important acts."

And when there is an administration like President Bush's—which devoutly believes in its sovereign right to keep secret everything it can—the press is indeed the Fourth Estate. Only the press is holding the government accountable, since Congress so frequently ducks its responsibility under the separation of powers.

For example, in an unusually candid statement by Senate Judiciary chairman Arlen Specter during a hearing on the revival of the Espionage Act, Specter said to FBI director Robert Mueller:

"Newspapers have traditionally done a very important job in our society in exposing governmental wrongdoing, senators' wrongdoing, corruption in government. There is a lot more oversight provided by the press than there is by the Judiciary Committee. It may even be that the FBI gets information leads . . . from the press."

If the Supreme Court, certain to be the ultimate ruler on this Espionage Act case, decides in favor of the government and upholds the Espionage Act, a precedent will be set for future presidents and administrations to go beyond even the unparalleled secrecy of the Bush administration.

As for the rebirth of the Espionage Act, Floyd Abrams reminds us that its "sections are sweepingly, almost breathtaking, overbroad. [They] provide for fines or imprisonment up to 10 years for whoever possesses information relating to the national defense, which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation."

Moreover, the Espionage Act targets anyone with such information who "willfully communicates the same to any person not entitled to receive it."

Since I started writing in the Voice in 2002 about the highly classified CIA "renditions" of terrorism suspects to other countries to be tortured, can Alberto Gonzales make an Espionage Act case against me? Detailed accounts of the kidnappings and torture by other reporters, too, have deeply injured the moral status of the U.S., even among its allies, further violating the Espionage Act.

Well, I'll be honored to join The Washington Post's Dana Priest and other reporters of classified information in the dock for what could be one hell of a decisive First Amendment battle.

In the 1971 Pentagon Papers case, the press successfully defied Richard Nixon and his fierce attorney general, John Mitchell, by running Daniel Ellsberg's very highly classified revelations of the government's pyramid of lies about the Vietnam War.

The Supreme Court vote backing press freedom in that case was 6 to 3, but five of the justices (pro and con) agreed nonetheless that "it seems reliable that a newspaper, as well as others unconnected with the Government, are vulnerable to prosecution" in other circumstances "if they communicate national security information." Among them, Justice Harry Blackmun warned that if publication of the Pentagon Papers resulted in "the death of soldiers . . . and prolongation of the war . . . the Nation's people will know where the responsibility for these sad consequences rest."

I expect that those five members of the Court in 1971—warning the press that the First Amendment is not a permanent shield in time of war—may well be remembered now by Chief Justice John Roberts, Samuel Alito, Antonin Scalia, and Clarence Thomas.

As for Anthony Kennedy—who could be the pivotal vote against defendants Rose and Weissman, the press, and the public—we should know his vote in a year or more. There is also the possibility that before oral arguments at the Supreme Court, Bush may have another seat to fill. These are indeed historic, fateful times.

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