The prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) for allegedly receiving and communicating classified information without authorization poses novel legal issues, the presiding judge in the case said last week.
“We are a bit in new, uncharted waters, and that’s why I’m going to consider this matter extremely carefully,” said Judge T.S. Ellis III at a March 24 hearing on defense motions to dismiss the case.
This is the first case in which the government has sought to criminalize the unauthorized receipt of classified information by non-governmental persons who do not hold security clearances.
Anything other than a dismissal of the charges would mark a dramatic shift in national security law and a significant reduction in First Amendment protections.
At the hearing last week, defense attorneys reiterated their arguments that the underlying statutes are overbroad, unconstitutionally vague, and do not apply to speech but only to the unauthorized transfer of tangible materials such as classified documents.
Unlike documents that bear classification markings, the defense pointed out, oral communications do not provide the recipient with notice that their contents are restricted.
“It’s not a coincidence that the words of the statute speak in [terms of] tangible items, and the conduct here is oral,” said defense attorney Abbe Lowell.
“How can a defendant, a potential defendant, trying to decide whether or not he’s stepping across the line, determine when — what information is national defense information, and when it isn’t?” Judge Ellis asked the prosecution.
“It all depends upon the facts, your Honor,” replied Assistant U.S. Attorney Kevin DiGregory vaguely.
Furthermore, documents can be returned to their rightful owners. But oral information once received into conscious awareness is difficult not to retain. Yet according to the government, retention of such information by unauthorized recipients is illegal too.
“Well, what are they supposed to do,” asked Judge Ellis, “have a lobotomy?”
Prosecutors argued that this is not a First Amendment case involving protected speech.
“What we have alleged in our indictment, your Honor, is not First Amendment protected activity,” said Mr. DiGregory.
“What we have alleged is that these two men conspired with persons, known and unknown, they conspired to gather and disseminate national defense information. And we have alleged that they have done so, and communicated that information to persons not entitled to receive it.”
“What we’re talking about here, your Honor, in the first instance, is conduct. We’re not talking about speech,” he said.
“Do you think that you can transform speech into conduct?” Judge Ellis replied. “You can’t do it just by labeling it conduct.”
“All speech is a type of conduct,” the Judge continued, “but it’s a type of conduct which [defense attorney] Lowell would quickly say falls within the First Amendment. But he would have to be quick to concede that conduct in terms of giving someone a document is not speech, under the First Amendment.”
None of these disputed issues were resolved, and the Court’s aggressive questioning does not reliably indicate the Judge’s own predilections. The parties were ordered to further brief the First Amendment issues by Friday, March 31.
A copy of the transcript of the March 24 hearing in U.S.A. v. Rosen and Weissman was obtained by Secrecy News.
“I am not sure why FAS and other outlets are trying make AIPAC into some kind of martyr of freedom,” wrote one commenter on the Secrecy News blog last week. “Its activities were clearly illegal and in violation of US law. Let’s be careful not to confound the defense of freedom with a defense of illicit activity.”
AIPAC, however, is not on trial and is not accused of wrongdoing. Whether or not the defendants’ activities were illegal is the question that is now before the Court.
As for Secrecy News’ interest in the case, it stems from the fact that we also gather and disseminate “national defense information,” a term that encompasses both classified and unclassified defense information.
We have “unauthorized” conversations with government officials. Sometimes we deliberately pose questions about matters that we know to be classified (“Psst…How big was the total intelligence budget 50 years ago?”).
If the government’s unbounded new interpretation of the espionage statutes were to prevail, much of our research and publication activity could arguably be considered illegal.
“Under the government’s theory, in fact, countless conversations and publications that take place every day are criminal acts,” the Washington Post editorialized last week.
See “Dangerous Prosecution,” Washington Post, March 23.