The Big Chill

An Espionage Act case in a Virginia federal court exposes the murky standards governing national security discussions.

From the Spring 2006 issue of The News Media & The Law, page 4.

By Susan Burgess

Last August, Steven J. Rosen and Keith Weissman were charged with conspiring to violate the 1917 Espionage Act by allegedly disclosing information relating to national defense to reporters and discussing it with Israeli embassy officials. At the time, the two were lobbyists with the American Israel Political Action Committee (AIPAC).

Before their prosecution, people in the “information” business, including lobbyists and journalists, did not think the law applied to their day-to-day work discussing, and sometimes even publishing, information related to the national security.

Now, however, journalists are faced with an unclear law and a prosecution that seems at odds with the law’s original purpose. They question whether the law applies to their work and, if so, when.

The press already feels the effects of the AIPAC case, though it is only nine months old and unresolved.

When Jack Anderson’s family donated nearly 200 boxes of his working files to George Washington University last summer, journalism Professor Mark Feldstein wrote a press release announcing a valuable and important gift chronicling the late investigative reporter’s career during the more than 50 years he wrote the syndicated Washington Merry-Go-Round column.

The press release never went out.

Feldstein’s colleagues counseled him not to draw attention to Anderson’s files because the FBI was reviewing National Archives materials and reclassifying previously public information. Who knew what records the FBI would target next, and why invite scrutiny of a Pulitzer Prize-winning journalist’s files? they asked.

In early March, FBI agent Leslie Martell called Feldstein, who immediately assumed the Anderson files were next on the FBI’s reclassification mission. But when she and another agent appeared at his home a day later, they announced they needed the information as part of an investigation into the AIPAC lobbyists case.

The agents told Feldstein that they were not after journalists but instead sought information about the identity of who leaked classified documents. They also said if they found any other classified documents unrelated to AIPAC, they would take them as well.

“When we sat down with the FBI, they said they had reason to suggest that the [AIPAC] defendants met with Jack and or his reporters, which caused us to think, ‘How could that be considering his declining health?'” said Michael Sullivan, a media attorney for Anderson’s estate. “He wasn’t meeting with these guys.”

Feldstein told the agents that he had seen no classified documents during his review of the files, which the Anderson family refused to hand over. “After much discussion and due deliberation, the family has concluded that were Mr. Anderson alive today, he would not cooperate with the government on this matter,” Sullivan wrote in a letter to the FBI in April on behalf of the family.

The FBI request appears to be unprecedented.

“I’ve never seen this,” said Sullivan, who has represented journalists for 25 years. “It seems like the effort of the government to put a shroud of secrecy on so many things that previous administrations had never dreamed of.”

Walter Pincus, who has written for The Washington Post for more than 30 years, agreed.

“A lot of us who’ve covered national security for years have lots of documents,” he said. “If that were the practice, it would be quite widespread.”

Karen Paul, Senate Historical Office Archivist, knows of only four other instances when government agencies have asked to review personal collections at universities for classified information to be removed or declassified, and none of those collections belonged to journalists.

FBI Spokesman Bill Carter called the investigation into Anderson’s files “a very unique situation.”

“An individual came to us concerned that [classified] information [in Anderson’s files] isn’t prematurely released to the public that would have detrimental effects on national security,” said Carter, who would not name the individual who claims to know about classified documents in Anderson’s files.

The FBI does not keep a tally of the journalists it investigates, nor does it track what careers are held by people investigated, and there has been no policy change directing agents to increase surveillance of journalists, according to Carter.

“Most media leak investigations are targeted to the individual who leaked the information to the journalist, so it’s not necessarily the situation where we’re investigating journalists as such, but the individual who provided unauthorized disclosure of information,” he said.

This is precisely what troubles many about the Rosen and Weissman prosecutions.

The prosecutions are not typical Espionage Act cases because neither defendant was a government employee, was paid by a third party or received tangible items related to national security. The facts that set this case apart from previous cases and the FBI’s attempt to get Anderson’s files belie a fervent debate inside the Beltway over how far the government can go to control information about its operations. While Dana Priest of The Washington Post and The New York Times‘ James Risen and Eric Lichtblau received Pulitzer Prizes for exposing secret government prisons overseas and the National Security Agency’s secret domestic surveillance program, respectively, people like conservative commentator William J. Bennett said that the two deserve prison for jeopardizing national security.

Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy, finds the AIPAC case worrisome because “it targets the leakees, not the leakers, and there’s little difference between what the defendants are charged with and what reporters and advocates do day-to-day. If the prosecution goes forward, it means the rules of the game have fundamentally changed, and we’re far along the path towards an Official Secrets Act. And that would mean a fundamental transformation of the American government. Retreating from freedom of the press would mean surrender of the principles of self-rule as the best form of government.”

Conservative commentator Gabriel Schoenfeld, however, said that national security reporters should not be permitted to publish secret information that — particularly in war time — jeopardizes our country’s safety. “The press can’t appoint itself the arbiter of secrets,” he said. If a secret national security program has been “approved of by congressional representatives, but might not meet public approval, should that allow the press to put the nation at risk?”

The FBI says the news media are not authorized to determine what is a legitimate secret. “We’re at war on an international scale with an enemy that is trying to kill American citizens,” Carter said. “The concern is that release of classified information that may endanger the security of the U.S. In other words, al-Qaida and terrorist groups read newspapers and look at the media and pick up intelligence based on information that appears on T.V. in the U.S., and there’s concern on the part of the intelligence community that secrets that are classified by the U.S. government not be released publicly.”

Aftergood said journalists play an important role in reporting all sides of an issue.

“National security reporters’ function is to inform the public of the content and context of national security policy,” he said. ”That includes presenting perspectives other than the administration’s own perspectives. If there are things the administration prefers to downplay or conceal, the job of the press is to say there’s more to that and fill in the blanks. Reporters are also citizens, and news outlets have a responsibility to be attentive to national security and law, but they’re also not working for the government’s public affairs office. They’re supposed to present an independent perspective on government policies. When they do that they nourish democracy and allow the public to be engaged citizens.”

Ronald K.L. Collins of the First Amendment Center in Arlington, Va., said it’s important to view the AIPAC case in the big picture.

“This case stands against the backdrop of unprecedented amounts of information becoming classified and the virtual demise of a reporters privilege in the federal context and potential Espionage Act prosecutions of The Washington Post and New York Times,” he said. “When you see it contextually, it’s far more problematic.”

Congress is taking the debate seriously. 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. “This committee gets a lot of its leads on what we read about in the paper. 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 as to what you do from” the press.

Legal experts note that, even if the prosecution fails in the AIPAC case, the implications for the practice of journalism are great. Going after journalists to reveal their sources in the process of prosecuting government leakers could mean potential sources stop speaking to journalists or become pickier about which reporters to speak to, and journalists may be intimidated from covering national security issues.

Meanwhile, reporters and other watchdogs of government secrecy are responding differently to the potential threat posed by the AIPAC prosecutions.

Pincus says his practices have not changed, regardless of theprosecutions. Risen and Priest did not return calls.

Aftergood said that he thinks his sources are more vulnerable in the current climate towards leakers than they used to be. “I look at all the ways that, if I were investigating myself, I may be able to identify my sources and how to reduce that vulnerability,” he said. “Every conversation leaves a record of some sort, which is the source of a low-level anxiety when I didn’t used to give it a second thought.”

Sullivan, the Anderson family attorney, sees the government’s actions as a call to arms for journalists.

“I think they have to stand up and start fighting these battles because if not, they’re going to pick you off one by one,” he said. “The whole thing with the family doesn’t get more chilling than that. Not just that you’re worried while you’re on this earth, but that they’ll go after your widows and kids. It’s a group of people without shame. This government does things and people are no longer outraged, but they should be.”