Judge rejects Reporters Committee’s request to weigh in on espionage case

A U.S. District Judge in Virginia has rejected the Reporters Committee for Freedom of the Press’s request to file a friend-of-the-court brief in an Espionage Act case against two lobbyists, 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.”

“We’re disappointed, but not surprised by the judge’s decision,” said Reporters Committee Executive Director Lucy A. Dalglish. “It would have been unusual to file a friend-of-the-court brief at the trial level. But the stakes for the media raised by this prosecution are so alarming, we believed an amicus brief was warranted.”

In his opinion, Judge T. S. Ellis said amicus curiae briefs “may be helpful in certain cases,” such as where parties are not adequately represented by counsel or a non-party “possesses special information or a unique perspective not otherwise available to the court.” In this case, however, he found no reason to believe that the issues “cannot be fully, fairly and appropriately resolved without the proposed amicus briefs.”

The Reporters Committee asked Ellis for permission to file an amicus brief in October 2005, arguing that it could help the court consider “the broad implications of the government’s use of the statute under which the defendants are charged, especially the extent to which that use would infringe on the news media.” The Reporters Committee said that it did not take a position as to whether the law can be applied to the two lobbyists.

At a recent sentencing held in connection with the prosecution, Judge Ellis made clear that, in his view, the media are not immune from prosecution when they receive classified information. “Persons who have unauthorized possession, who come into unauthorized possession of classified information, must abide by the law,” Ellis said in comments reported by the Jewish Telegraphic Agency. “That applies to academics, lawyers, journalists, professors, whatever.”

Such a broad interpretation of espionage statutes could endanger routine reporting, Dalglish said. “While the government certainly has a legitimate interest in keeping national security information out of the wrong hands, an overly aggressive approach that interferes with the flow of information to the public and its ability to hold its government accountable can undermine the democratic principles we all seek to defend,” the Reporters Committee wrote in its motion.

The criminal case, brought in federal court in the Eastern District of Virginia in Alexandria, concerns allegations that former American Israel Public Affairs Committee lobbyists Stephen Rosen and Keith Weissman disclosed national security information to foreign government officials. The case is believed to be part of a broad effort by the Bush Administration’s Justice Department to clamp down on unauthorized disclosures of information that it wants to keep secret. The espionage statute has apparently never been used against a journalist, and this is the first case in which lobbyists have been prosecuted under the law.

Ellis also denied a similar motion to file an amicus curiae brief from the Institute for Research: Middle Eastern Policy.