National security trumps First Amendment in espionage case

Prior Restraints | Feature | August 10, 2006
  • Using the Espionage Act to prosecute two former lobbyists who allegedly gave secret information to reporters does not violate the First Amendment, a federal judge ruled Thursday.

Aug. 10, 2006  ·   The First Amendment does not protect private citizens who reveal national security secrets that potentially damage the United States, Judge T.S. Ellis III of the U.S. District Court in Alexandria, Va., ruled today in a case that could affect how journalists do their jobs.

Prosecuting two former lobbyists for the American Israel Public Affairs Committee (AIPAC) under the Espionage Act does not interfere with their First Amendment rights to free speech or to petition the government, Judge Ellis ruled, nor is the 1917 law overly broad.

"Congress's attempt to provide for the nation's security by extending punishment for the disclosure of national security secrets beyond . . . persons within its trust to the general populace is a reasonable, and therefore constitutional exercise of its power," Judge Ellis wrote.

The former lobbyists, Steven J. Rosen and Keith Weissman, allegedly received confidential information from a Pentagon official and sought to publicize it by disclosing it to reporters and discussing it with Israeli embassy officials.

Among the arguments that Judge Ellis rejected is that the Espionage Act does not apply to their case because they are charged with transmitting oral communications, not tangible objects, as had defendants in all previous espionage cases.

Relying on a 1988 ruling by the U.S. Court of Appeals in Richmond (4th Cir.), Judge Ellis also ruled that the espionage law gives "fair warning" as to who is "entitled to receive" national defense information, giving the executive branch the authority to define such information, which it has through a uniform classification system for national security information.

Judge Ellis rejected as overreaching the government's claim that the espionage law does not implicate anyone's First Amendment rights.

"Collecting information about United States' foreign policy and discussing that information with government officials (both United States and foreign), journalists, and other participants in the foreign policy establishment -- is at the core of the First Amendment's guarantees," he wrote.

Ultimately, however, Judge Ellis concluded that the U.S. Supreme Court's discussion of the Espionage Act in its 1971 Pentagon Papers ruling, New York Times v. United States, supports the law's constitutionality as applied to the former lobbyists.

In that case, three Supreme Court justices -- Potter Stewart, Byron White and Thurgood Marshall -- explicitly acknowledged the possibility of prosecuting newspapers under the espionage statutes for publishing a classified document -- the Pentagon Papers. Judge Ellis noted that the opinions of five other justices did not contradict that view. The papers and the journalists involved were never prosecuted.

Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy, called Judge Ellis' decision "a momentous expansion of the government's authority to penalize unauthorized disclosures" that will likely chill national security reporters' speech.

"It will make it vastly more difficult to report on national security matters and to cultivate sources who are outside of public affairs channels," said Aftergood.

Journalists and media attorneys have closely followed the case out of concern for how it might affect journalists. Although the World War I-era espionage law has never been used against a journalist who has received national security information, some politicians and commentators have called for the government to charge national security reporters Dana Priest and Eric Lichtblau with espionage for allegedly jeopardizing national security through their reporting on secret prisons and the National Security Agency's wiretapping program.

Congress also has been watching the Rosen and Weissman prosecutions and considering the impact of the case on journalists. In a May 2 Senate Judiciary Committee hearing, Sen. Arlen Specter (R-Pa.) told FBI Director Robert Mueller that whether the Espionage Act grants the authority to prosecute a newspaper and reporters is a serious question that requires oversight and consideration of congressional intent to determine whether Congress should clarify the law.

"Newspapers have traditionally done a very important job in our society on exposing governmental wrongdoing, senators' wrongdoing, corruption in government," Specter told Mueller.

The Reporters Committee for Freedom of the Press filed a motion in the case in October, asking Judge Ellis to allow it to file a friend-of-the-court brief, saying that such a broad application of the Espionage Act would impair journalists' work and the public's right to know about the workings of its government. Ellis rejected the motion in March, saying that briefs from non-parties would not help him resolve the issues in the case because both parties' "extensive briefs on the various constitutional arguments thoroughly cover the subject and assure that the issues . . . have been fully explicated."

Abbe Lowell of Chadbourne & Parke and John Nassikas of Arent Fox, attorneys for Rosen and Weissman, respectively, said in a statement that, though disappointed that the case was not dismissed, they are encouraged "that the court agreed that the mere discussion of foreign policy information with officials of the United States and foreign governments by private citizens 'is at the core of the First Amendment's guarantees' -- and that the only way this case can proceed is if the government can prove beyond a reasonable doubt that Mr. Rosen acted in bad faith, willfully disclosing information that was potentially damaging to the United States or helpful to an enemy, and must prove that the 'the national security is genuinely [put] at risk' by their actions."

The lobbyists do not plan to appeal to the U.S. Court of Appeals in Richmond. Trial was originally scheduled to begin April 25, but has been rescheduled at least twice and has not been reset. Ellis has told the parties he will hold a status conference next month to set the future litigation schedule.

(United States v. Franklin, Defense Counsel: John Nassikas III, Arent Fox, Washington, D.C.; Abbe Lowell, Chadbourne & Parke, Washington, D.C.) -- SB

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