March 7, 2006
Expect Journalistic Tongues to Loosen
By Jack
Kelly
Journalists
will be paying rapt attention when Steven Rosen and Keith Weissman
go on trial next month for violation of the Espionage Act of 1917.
Mr. Rosen
and Mr. Weissman were officials of the American-Israel Public
Affairs Committee. They received classified information from Lawrence
Franklin, an analyst at the Department of Defense, which they
passed on to an Israeli diplomat, and to journalists. They are
the first private citizens ever to be prosecuted under the Espionage
Act.
Mr. Franklin
pled guilty Jan. 20th and was sentenced to more than 12 years
in prison, though his sentence could be reduced in exchange for
testimony against Mr. Rosen and Mr. Weissman.
Journalists
note there is little difference between what Mr. Rosen and Weissman
are accused of doing, and what reporters who have published stories
based on leaks of classified information have done, and beads
of sweat form on their brows. The chickens hatched when journalists
demanded a special prosecutor be appointed in the Valerie Plame
case are coming home to roost.
Ms. Plame
is the wife of Joseph C. Wilson IV, who earned his 15 minutes
of fame when he declared President Bush misled Americans when
he said Saddam Hussein had tried to buy uranium in Africa.
The CIA sent
Mr. Wilson to Niger. Journalists wondered why a strident critic
of Mr. Bush had been selected for the mission. They were told
by, among others, I. Lewis "Scooter" Libby, then chief
of staff to the vice president, that Wilson had been dispatched
on the recommendation of his wife, who worked at CIA.
This fueled
speculation the Intelligence Identities Protection Act had been
violated, since for many years Ms. Plame had worked under cover.
Special Prosecutor Patrick Fitzgerald promptly subpoenaed journalists.
Judith Miller of the New York Times spent several months
in jail before fingering Mr. Libby.
"Some
government officials are itching to exploit that investigation
as a precedent for using the threat of long jail terms and massive
fines to force reporters to finger their confidential sources,"
wrote Stuart Taylor in the National Journal Feb. 27th.
"There's
a tone of gleeful relish is the way they talk about dragging reporters
before grand juries," Bill Keller, executive editor of the
New York Times, told the Washington Post, which
published a lugubrious story about the leak investigations last
Sunday.
Two reporters
at risk are James Risen of the New York Times, who broke
the story of the NSA intercept program, and Dana Priest of the
Washington Post, who broke the story of secret CIA prisons
in Europe for al Qaida bigwigs. Both relied -- as did Messrs Rosen
and Weissman -- on leaks of classified information.
Mr. Risen
and his employers may be especially at risk, thanks to the Chicago
Tribune.
On June 7th,
1942, the Chicago Tribune published a story revealing
the U.S. has advance knowledge of the Japanese assault on Midway
Island. The Tribune wasn't prosecuted for this enormous
breach of security, for fear of alerting the Japanese, who apparently
hadn't noticed their radio codes had been broken. But in 1950,
Congress passed a law making it a crime to publish classified
information "concerning the communications intelligence activities
of the United States."
"What
the New York Times has done is nothing less than to compromise
the centerpiece of our defensive efforts in the war on terrorism,"
writes Gabriel Schoenfeld in the current issue of Commentary.
"If information about the NSA program had been quietly conveyed
to an al Qaida operative on a microdot...there can be no doubt
the episode would have been treated by the government as a cut
and dried case of espionage. Publishing it for the world to read,
the Times has accomplished the same end."
Justice department
lawyers think journalists who publish information which damages
national security can be prosecuted under the Espionage Act. Case
law supports them. In 1985, the Fourth U.S. Circuit Court of Appeals
held unanimously the Espionage Act applies to "whoever"
transmits national defense information "to a person not entitled
to receive it."
But it's
more likely prosecutors will use the Plame precedent to get journalists
to disclose their sources. The NSA leak investigation issaid to
be moving rapidly, and to focus on two Democratic senators, Jay
Rockefeller of West Virginia and Dick Durbin of Illinois.
If Mr. Rosen
and Mr. Weissman are convicted, expect journalistic tongues to
loosen.
