|
The New York Law Journal Will a Victory for Bush Hold Up? By James C. Goodale
The president has won a significant victory for the prevention of leaks of classified information. It will help him in his war against the press. But will it hold up? In this case, known as "AIPAC" (American Israel Public Affairs Committee), U.S. District Judge Thomas Ellis III decided on Aug. 9, 2006, that individuals who receive and transmit leaks can be prosecuted under The Espionage Act. The case does not involve espionage, however.
Information was leaked to lobbyists employed by AIPAC, who in turn passed on that information to journalists, Israeli officials, and within their own organization.
This is the first case ever to decide The Espionage Act applies to persons who receive leaked classified information ("leakees"). It does not involve the press. Since the press, however, routinely receives leaked classified information, the decision could be applied to the press.
Attorney General Albert Gonzales has said that he is investigating whether to use The Espionage Act to prosecute the press for publishing leaks. Until President George W. Bush's administration brought the AIPAC case, prosecutions against leakees were unheard of.
Leaking is the only antidote to a system of over-classification. Millions and millions of documents are classified yearly -- 15.6 million in 2004, 3.5 million in 1995. A vast majority of them, it is fair to say, are classified to protect privacy of deliberation and political embarrassment.
Examples abound. The Washington Post's Dana Priest won the Pulitzer Prize for her series on the CIA prison camps. It was based on leaks of classified information. Immediately following the disclosure, Senate Majority Leader Bill Frist, R-Tenn., and House Speaker Dennis Hastert, R-Ill., on Nov. 8, 2005, called for an investigation:
If accurate, such an egregious disclosure could have long-term and far-reaching damaging and dangerous consequences, and will imperil our efforts to protect American people and our homeland from terrorist attacks.
Yet on Sept. 6, 2006, President Bush, in a speech to the nation, admitted the Post story was true. It was accordingly no longer classified.
He made the disclosure: (a) to transfer those secretly held to Guantanamo prisons and (b) to persuade Congress to pass new legislation to try them (and others). In short, it was in the president's political interest to declassify the information.
The investigation called for by Messrs. Frist and Hastert of The Washington Post is now presumably dead. What is disturbing about the recent decision by Judge Ellis in AIPAC is that it could be used to support an indictment of the Post.
And so the decision permits the government to have it both ways. It can indict those who receive classified information until it decides to declassify it for its own political purposes.
This result would seem to be absurd. It offends the First Amendment, which encourages discussion of matters relating to government. For these reasons, and others, Congress has never passed an Official Secrets Act that penalizes the press for publishing classified information. Indeed, when it attempted to in 2000, President Bill Clinton vetoed it.
To get around these problems, the Bush administration has resurrected a relic from 1917 called The Espionage Act. It has convinced Judge Ellis that the act covers more than espionage.
Judge Ellis believes the act covers "information related to the national defense" that is "closely held by the government" and whose "disclosure could threaten our collective security." It makes no difference whether or not the information relates to espionage.
The broad sweep of Judge Ellis' view should be obvious. All stories about national defense "relate to the national defense." Because so much information is classified, many of these stories are based on classified information.
The Post's story on prison camps, for example, related to "the national defense" and could be said to harm the United States. Judge Ellis does not think this language is unconstitutionally vague if a leakee also knows (a) that the information was closely held by the United States and (b) the information when disseminated might potentially harm the United States.
When The Washington Post published the prison camp story did it know if such publication could harm the United States? Its argument would be it helped the United States. It exposed a practice the public needed to know about and debate.
The government would argue the disclosure harmed its war against terrorism just as Messrs. Frist and Hastert said it did. In the end a jury would decide. It is not comforting to envisage juries deciding what stories are criminal and what are not.
To be clear about it, the AIPAC case is not over. The defendants may be found not guilty. Even if guilty, an appellate court may overturn Judge Ellis' view of The Espionage Act.
Further, AIPAC is not The Washington Post. There are good arguments The Espionage Act does not apply to the press at all. The legislative history bears this out. In 1917, Congress clearly excluded the press.
Judge Ellis, however, goes out of his way to note he believes The Pentagon Papers case permits the prosecution of the press under The Espionage Act. This is because several Judges in that case suggested the act could be read that way.
Judge Ellis's opinion stretches The Espionage Act to its limits and it should not hold up. If Congress had meant to legislate an Official Secrets Act, it would not have called it The Espionage Act.
On the other hand, it may very well hold up on appeal in the conservative U.S. Court of Appeals for the Fourth Circuit where Judge Ellis sits. That circuit has had several cases involving classified information and has voted for the government in these cases.
This case may never reach the Supreme Court. If it does, the betting here is the Court would be troubled by the fact that The Espionage Act does not specifically apply to leaking. In the meantime, count AIPAC as a victory in Bush's war against the press.
James C. Goodale is the former vice chairman of The New York Times and producer/host of the television program "Digital Age."
|
Events Calendar
