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     News: A Troubling Prosecution

    Opinion / EditorialA Troubling Prosecution
    National Review Online, NY
    By Jonathan H. Adler & Michael Berry

    United States v. Rosen has its thorns

    Can journalists be prosecuted for knowingly reporting classified information related to the War on Terror? What about Washington lobbyists who pass on secret information concerning defense matters or foreign affairs? Some would be inclined to say that except in the most exceptional cir*****stances such communications are protected by the First Amendment, but a recent decision by a federal court in Virginia seems to conclude otherwise. The decision sends a clear warning to reporters who cover the war on terrorism, as well as scholars, think-tank analysts, and lobbyists who study, write, and advocate about issues bearing on the national security. Read broadly, the decision could sanction federal prosecution of anyone who willfully communicates classified national defense information to the public. Fortunately, the decision also contains limiting language that provides some safeguard for First Amendment values and makes it more difficult for federal prosecutors to convict potential defendants engaged in constitutionally protected activity, journalists and non-journalists alike.

    The case — United States v. Rosen — involves two former employees of the American Israel Public Affairs Committee (AIPAC) charged with conspiring to communicate “information relating to the national defense” to someone “not entitled to receive it” in violation of Section 793 of the Espionage Act. Their alleged co-conspirator, a former Defense Department employee, has already pled guilty.

    Although reference to the Espionage Act conjures up images of covert spying and leaking, neither lobbyist is charged with such covert acts. Instead, the defendants’ alleged misconduct sounds a lot like what Washington lobbyists, reporters, and academics do every day. The indictment details a series of phone calls and meetings between the lobbyists and a contact at the Department of Defense. Some of the meetings were over breakfast and lunch. One was at a baseball game, and another was at Union Station. During the meetings, the Defense Department employee allegedly passed along classified information to the two lobbyists. According to the indictment, the lobbyists then passed that information on to others at AIPAC, “a senior fellow at a Washington, D.C. think tank,” foreign officials, and reporters, all in violation of the Espionage Act.

    Conservatives have lined up on both sides of the case. The indictment was brought by ...

    the former United States Attorney for the Eastern District of Virginia, Paul McNulty, who now serves as President Bush’s deputy attorney general. On the other side of the case is Viet Dinh, the former assistant attorney general for legal policy who helped shape the Bush administration’s war on terrorism following September 11. Dinh joined in filing a motion to dismiss the indictment on the lobbyists’ behalf, arguing among other things that the prosecution violated the lobbyists’ First Amendment rights to freedom of speech and to petition the government.

    On August 9, Judge T. S. Ellis, III, a federal judge in Virginia appointed by President Reagan, denied the lobbyists’ motion and allowed the case against them to proceed. Judge Ellis explained that “both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.” According to his ruling, the government must prove several elements to obtain a conviction under the Espionage Act that will withstand constitutional scrutiny. For instance, the information at issue must be classified and must relate to the national defense. Additionally, the government must establish that the defendant “knew the nature of the information, knew that the person with whom they were communicating was not entitled to the information, and knew that such communication was illegal, but proceeded nonetheless.” Judge Ellis explained that in the lobbyists’ case the Espionage Act “serve[s] the government’s legitimate interest in protecting the national security, and its effect on First Amendment freedoms is neither real nor substantial as judged in relation to this legitimate sweep.”

    The import of Judge Ellis’s decision is obvious: The federal government may prosecute lobbyists, reporters, and academics under the Espionage Act without running afoul of First Amendment protections. It is not surprising that the Washington Post and Wall Street Journal described the ruling as “dangerous.” Any Washington insider who trades on classified information — not just reporters — is at risk. Indeed, given the specific acts charged by the government in this case, any time a lobbyist, reporter, scholar, or policy wonk researches a national-security issue or questions a Defense Department employee, resulting in the disclosure of classified material, he could be under threat of federal prosecution.

    Fortunately, Judge Ellis qualified his ruling in ways that should make it more difficult to obtain Espionage Act convictions against private citizens who have not themselves engaged in spying or other skullduggery, although those qualifications standing alone do not go far enough in protecting fundamental First Amendment values. First, following the lead of conservative Fourth Circuit Judge J. Harvie Wilkinson III, Judge Ellis held that Espionage Act prosecutions that implicate core First Amendment freedoms merit “close judicial scrutiny” and that the constitutionality of such prosecutions must be assessed on a case-by-case basis. To this end, Judge Ellis contrasted the prosecution of the lobbyists with the prosecution of a government employee who leaks classified information. The government employee has diminished First Amendment rights, and “Congress may constitutionally subject to criminal prosecution anyone who exploits a position of trust to obtain and disclose [national defense information] to one not entitled to receive it.” In the case of someone outside the government, however, the Act must be “narrowly drawn,” and the prosecution must be subject to “First Amendment scrutiny.” In other words, courts will carefully scrutinize any Espionage Act prosecution targeting a private person engaged in core First Amendment conduct.

    Second, the government can only prosecute disclosures of information when the disclosure of that information “could cause injury to the nation’s security.” Although Judge Ellis did not provide a detailed explanation of what that means, and suggested efforts to influence foreign policy might be sufficient, he emphasized that Espionage Act prosecutions are limited to “situations in which the national security is genuinely at risk” and “cases of serious consequences to our national security.” This is exactly right. The government should not be able to prosecute a journalist (or any other private citizen) for simply disclosing embarrassing information that touches on national security or reveals something the government might prefer to keep under wraps for diplomatic reasons.

    The Rosen indictment states that some of the information “related to potential attacks upon United States forces in Iraq” and “a foreign government’s covert actions in Iraq.” Given that the precise details of what was disclosed remain classified, it is impossible to tell whether this information meets the standard laid out in Judge Ellis’s opinion. Needless to say, however, stories revealing the existence of secret CIA prisons in Eastern Europe or the government’s work with phone companies to mine data about call patterns do not seem to pose the serious and direct threat to “our collective security” demanded by the decision. While some might say that publishing such stories was unwise — and others might even say “unpatriotic” — that does not make it criminal.

    Third, Judge Ellis held that when a defendant is accused of disclosing “intangible information,” as opposed to a do*****ent, the government must show that the defendant acted in “bad faith, i.e. with reason to believe the disclosure could harm the United States or aid a foreign government.” The decision explains that prosecutors are required to “demonstrate the likelihood of [the] defendant’s bad faith purpose to either harm the United States or to aid a foreign government.” Judge Ellis further explained that the defendant must have “intended” or “recklessly disregarded” the “effect of the disclosure.” In the lobbyists’ case, the indictment alleges they disclosed national defense information directly to foreign officials. Whether that is enough to meet the “significant” state-of-mind requirement articulated by Judge Ellis remains to be seen, but it is quite different from newspapers publishing reports based on their view that the public should know more information about the government’s war on terror.

    Although the Rosen decision is just a single ruling by a single trial court, it sends a warning to all those who write and study about national security. Journalists are particularly concerned. Indeed, the editorial pages of the Washington Post and Wall Street Journal proclaimed that Judge Ellis transformed the Espionage Act into an American version of Britain’s Official Secrets Act. Now, all eyes will turn to the federal grand jury investigating leaks of classified information to reporters to see whether the government will view the decision as an open invitation to aggressively prosecute future cases involving the press.

    While Judge Ellis allowed the Rosen prosecution to proceed, he seemed uncomfortable with aspects of the case, and explicitly disavowed any comment on the wisdom of the government’s decision to prosecute lobbyists under a statute that “remain[s] largely unchanged since the administration of William Howard Taft.” In the end, Judge Ellis suggested that “the time is ripe for Congress to engage in a thorough review and revision” of the Espionage Act to ensure that it reflects “the appropriate balance between our nation’s security and our citizen’s ability to engage in public debate about the United States’ conduct in the society of nations.” Given the potential breadth of the statute and the risk of future prosecutions, Congress ought to heed the call.

     — Michael Berry is an associate at Levine, Sullivan, Koch & Schulz, LLP, where his practice focuses on media law and NRO contributing editor Jonathan H. Adler is professor of law and co-director of the Center for Business Law and Regulation at Case Western Reserve University.

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