NEWS MEDIA UPDATE · VIRGINIA · Newsgathering · Feb. 17, 2006
PATRIOT Act author defends former pro-Israel lobbyists
Feb. 17, 2006 · The Espionage Act was not meant to be used against private citizens performing activities protected by the First Amendment, defense attorneys for two former lobbyists argued in court papers filed in U.S. District Court in Alexandria.
In a brief filed Jan. 19, but only recently unsealed, attorneys for former American Israel Public Affairs Committee (AIPAC) lobbyists Steven Rosen and Keith Weissman argue that neither the plain language nor the legislative history of the Espionage Act support the prosecution of private individuals like Rosen and Weissman who were not government officials obligated to keep classified information confidential and did nothing illegal to get the information they shared with journalists and Israeli embassy officials.
Allowing the government’s prosecution to stand would criminalize lobbyists’ and journalists’ work, chilling speech, the defense team argued.
“Dr. Rosen, Mr. Weissman, and other foreign policy advocates who, like the press, report to their constituents on the development of policy positions within the government would find themselves speaking on matters of great public concern at the risk of criminal prosecution — undoubtedly resulting in precisely the ‘chilling effect’ that the First Amendment was intended to avoid,” the attorneys wrote in their brief.
Not only were the defendants not given “fair warning” that their lobbying activities could be criminal — required by the due process clause of the Constitution — the First Amendment protects the transmission of lawfully received political information that was illegally obtained by a third party, the attorneys argued.
“The dissemination of truthful information about matters of public concern — a function that such policy organizations share with the media — is a core First Amendment activity,” wrote the defense team.
The brief was co-authored by Viet Dinh, a former Assistant Attorney General who is now a Georgetown University law professor. Dinh’s participation in the brief is noteworthy because he is one of the architects of the “USA PATRIOT Act,” legislation aimed at helping the government pursue terrorists, but criticized for failing to protect private citizens’ civil liberties.
Rosen’s attorney Abbe Lowell enlisted Dinh’s assistance because he is “obviously an expert on constitutional law issues, and there have been a lot of constitutional law flaws in the government’s application of this statute,” Weissman’s attorney John Nassikas III told The New York Sun.
In the government’s responding brief, it argued that the First Amendment does not protect the disclosure of national defense information by anyone, even lobbyists and journalists, noting that five Supreme Court justices in the Pentagon Papers case acknowledged this. “It seems undeniable that a newspaper, as well as others unconnected with the Government, are vulnerable to prosecution” if they communicate national security information, the prosecutors wrote in their brief, quoting Justice Byron White’s concurrence in New York Times v. United States.
The defendants’ August 2005 indictment alleges that Rosen and Weissman were given confidential information from a Pentagon official and sought to publicize it both by disclosing it to reporters and discussing it with Israeli embassy officials.
The Reporters Committee for Freedom of the Press filed a motion in the case in October, asking U.S. District Judge Thomas Ellis III 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 has not yet ruled on the motion.
The parties will argue Wednesday whether the charges against the defendants should be dismissed. If any of the charges against them survive, Rosen and Weissman’s trial is scheduled to begin on April 25.
(United States v. Franklin, Defense Counsel: John Nassikas III, Arent Fox, Washington, D.C.; Abbe Lowell, Chadbourne & Parke, Washington, D.C.) — SB