In its prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC), the Bush Administration is staking out new legal territory, arguing that it is a crime for a reporter or any other non-government employee who does not hold a security clearance to receive and communicate classified information.
“The government respectfully submits that an ‘ordinary person exercising ordinary common sense’ [...] would know that foreign officials, journalists and other persons with no current affiliation with the United States government would not be entitled to receive information related to our national defense,” according to the government’s January 30 response (pdf) to a motion to dismiss (pdf) filed by the AIPAC defendants.
This is a novel view of the press and the American public.
The idea that the government can penalize the receipt of proscribed information, and not just its unauthorized disclosure, is one that characterizes authoritarian governments, not mature democracies.
The government bases its position on a narrow reading of the Espionage Act of 1917 (18 U.S.C. 793), which prohibits certain communications of national defense information by “whoever” may do so.
“There plainly is no exemption in the statutes for the press, let alone lobbyists like the defendants,” the government said.
Prosecution of a member of the press “would raise legitimate and serious issues and would not be undertaken lightly,” the government volunteered. But the AIPAC defendants “are not members of the press and enjoy no constitutional rights reserved to the press.”
Of course, anyone who commits espionage should expect to be prosecuted for that crime. But that is not the issue in the AIPAC case, where the government seeks to penalize the non-espionage transmission of information that it considers classified.
“Whether a defendant was an agent of a foreign government is not relevant. The statute applies to any person, whether they are acting as an agent, or acting on their own,” the government said.
This is precisely what makes the AIPAC case a matter of broad public consequence. The prosecution’s expansive interpretation of the Espionage Act potentially applies to every American, indeed every person in the world (“anyone”), not just accused spies.
“The fact that the defendants were not agents of Israel, or any foreign nation, does not negate any element of the offense, and cannot be exculpatory.”
See “Government’s Consolidated Responses to Defendants’ Pretrial Motions,” United States of America v. Steven J. Rosen and Keith Weissman, filed January 30, 2006.
A closed hearing on the motions was held on February 16 and will resume on March 2.