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.

Jack Kelly

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