Editore"s Note
Tilting at Windmills

Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

April 2, 2006
By: Kevin Drum

ESPIONAGE AND THE PRESS....Here's some encouraging news. Remember Lawrence Franklin, the Pentagon analyst who was charged with passing classified information to a couple of lobbyists for the American Israel Public Affairs Committee? He pleaded guilty and was sentenced to 12 years in prison back in January.

Fine. But what about the lobbyists who received the information? Well, they've been charged under the 1917 Espionage Act and are currently on trial something that seems unexceptional at first glance since they are, after all, AIPAC lobbyists and therefore working on behalf of a foreign interest.

But it's not that simple. If they were being prosecuted for harming U.S. interests by passing information to the Israeli embassy which they did that would be one thing. However, instead of prosecuting that case, the government is deliberately trying to build a much broader case: namely that the lobbyists had lunch with a source who passed along classified scuttlebutt and then divulged that information "to persons not entitled to receive it." But if AIPAC lobbyists can be convicted of espionage merely for receiving confidential information and then passing it along to anyone not authorized to hear it, can journalists be convicted too?

Last week, T.S. Ellis III, the conservative Reagan-era judge in the case, suggested this was a slippery slope he was uncomfortable with:

At a hearing in federal court last week, Ellis said that the charges brought under the 1917 law were unprecedented and that the government had veered into "uncharted waters."

"My initial thought was maybe that, since this statute has been around for so long, that this would be a case that would be governed by well-established precedent," the judge said. "I don't think it is."

.... "I regard this [1st Amendment issue] as central to this case and important," Ellis declared.

My own view is that the government has chosen this case very shrewdly. The two lobbyists work for AIPAC, which gives this case the veneer of being about foreign spying. President Bush is a solid supporter of Israel, which means the administration can't be accused of going after its political enemies. AIPAC itself fired the two lobbyists and is reluctant to publicly defend them for obvious reasons. And of course anyone who's unsympathetic toward Israel in the first place is happy to see this case move forward.

In other words, there's really no one to defend these guys. But once the precedent is set that you're guilty of espionage merely for receiving confidential information over lunch and then reporting it to someone else, every national security reporter in the country is in danger of prosecution. Judge Ellis seems to understand this.

As should we all. Steven Rosen and Keith Weissman obviously aren't poster children for press freedom, but that shouldn't stop us from seeing what the administration is trying to accomplish here. Remember, they think we're in a permanent state of war, and they're looking for weapons to shut down leaks of all kinds. AIPAC may seem like a safe initial target, but if Rosen and Weissman are successfully convicted, how long will it be before James Risen and Dana Priest are in the dock too?

We're being suckered here, folks. Don't fall for it.

UPDATE: I've rewritten the third paragaph of this post to make the issue at stake clearer.

Kevin Drum 1:42 PM Permalink | Trackbacks | Comments (36)

Bookmark and Share
 
Comments

These guys are trying to roll back the power that people get through the press, the ballot box, and the courts.

Posted by: ferd on April 2, 2006 at 1:56 PM | PERMALINK

"...what they did was not much different from what reporters do all the time: they had lunch with a source who divulged classified scuttlebutt."

You left out the part about reporting this classified scuttlebutt back to the embassy officials (read: foreign intelligence apparatus) of a foreign government. Now, if this is what reporters do all the time, then you're not full of sh*t. But of course not: reporters report back to their editors, and one hopes that some good is done the American people because some nasty government business has been uncovered.

That's not the business that AIPAC or the Israeli embassy is in.

Posted by: Ted Smith on April 2, 2006 at 1:58 PM | PERMALINK

Just a quick point - just because you are an American citizen, does not disqualify you from being a foreign spy ...

Posted by: royalblue_tom on April 2, 2006 at 2:15 PM | PERMALINK

Ted: That's true, but they aren't being prosecuted for passing information to the Israeli embassy. They're being prosecuted merely for receiving classified information from Franklin.

Royalblue: Agreed. It's mainly a matter of public perception.

Posted by: Kevin Drum on April 2, 2006 at 2:20 PM | PERMALINK

dual citizenship perhaps?

Posted by: apeman on April 2, 2006 at 2:32 PM | PERMALINK


KEVIN DRUM: they aren't being prosecuted for passing information to the Israeli embassy. They're being prosecuted merely for receiving classified information from Franklin.

So you say. But the article you link to says they "were charged with conspiring with then-Pentagon analyst Lawrence A. Franklin to gather and communicate defense information concerning Iran, Iraq and Saudi Arabia." (emphasis mine)

And James Risen, whose freedom to report you seem so concerned with, wrote last August, "The F.B.I. has gathered evidence that the official passed classified policy documents to officials at the American Israel Public Affairs Committee, a major pro-Israeli lobbying group, which in turn provided the information to Israeli intelligence, the officials said." (my emphasis)

Seems to me, AIPAC itself ought to be facing espionage charges.

KEVIN DRUM: We're being suckered here, folks. Don't fall for it.

Are you sure it's not simply you who's being suckered?


Posted by: jayarbee on April 2, 2006 at 2:47 PM | PERMALINK

Walter Pincus had an interesting Washington Post story about this case last week.

Posted by: amalgam on April 2, 2006 at 3:20 PM | PERMALINK

I know the Supreme Court found the Espionage Act of 1917 constitutional(the Shenk case) with Oliver Wendell Holmes Jr.'s concurrence about "crying fire in a crowded theatre." But I thought it was repealed in the early Twenties.

Posted by: lee on April 2, 2006 at 3:41 PM | PERMALINK


KEVIN DRUM: I've rewritten the third paragaph of this post to make the issue at stake clearer.

It's not any clearer to me. As your past remarks have made clear, we know that you have a selfish interest in this issue. You're willing to let the public be disserved in order to set aside special rights for Judith Miller and yourself--rights that the general public doesn't enjoy. But now you want to expand the group entitled to those rights? To lobbyists? I might be inclined to think that any increase in membership of an elitist group causes it to become more egalitarian. But lobbyists? Now, if you are saying that anyone can receive classified information and pass it along to anyone, I'll probably be with you. But I don't think we get there by giving special rights to people whose interests are so narrow they are almost certainly to be at odds with the public's.

As long as there are laws against passing classified information to foreign governments, lobbyists for those governments should be the most subject to them.


Posted by: jayarbee on April 2, 2006 at 3:46 PM | PERMALINK

Perhaps the DOJ has selected the approach banking that the judge will heave the approach so the guys will walk.

Posted by: Chris Brown on April 2, 2006 at 3:50 PM | PERMALINK

The Federation of American Scientists blog Secrecy News has been reporting on developments in this case for several months.

Posted by: terhune on April 2, 2006 at 3:57 PM | PERMALINK

As long as there are laws against passing classified information to foreign governments, lobbyists for those governments should be the most subject to them.

Yes, and those laws should be sufficient to prosecute the lobbyists in this case. The point is that the government is trying to use a broader law, which would give them precedent to try James Risen, etc. All he's saying is that they should be tried under the existing legal framework, which is quite sufficient to send them to jail, rather than under a looser interpretation that makes sense only if the government wants to prime the system for prosecutions that aren't possible under espionage laws. He's not asking for special protection for these guys.

Posted by: neoliberal on April 2, 2006 at 4:26 PM | PERMALINK

Kevin - They're not trying to shut down leaks of all kinds. I think they are trying to shut down unauthorized, uncontrolled leaks.

Posted by: dvg4048 on April 2, 2006 at 4:46 PM | PERMALINK

I think you're only getting half the picture, Kevin. Chris Brown got the other half in his comment above.

If the courts allow these guys to be convicted under the current DoJ approach, then the Administration has a precedent to silence particularly ill-timed and inconvenient reporting. On the other hand, if the courts toss this out because they're worried about setting precisely that kind of precedent, then the Administration gets to look like it's being tough on its political allies without actually being tough on them.

I think the second option is the more likely result here and probably what the Administration is actually looking for. Either way, though, it's a win-win for them.

Posted by: RangerDave on April 2, 2006 at 5:31 PM | PERMALINK

Glenn Greenwald raised the same alarm three weeks ago. Thank you, Kevin, for amplifying it.

Jayarbee, take a deep breath and read the linked post. The administration is using an espionage case as a threat to the press. If you're still not convinced, read the FAS Secrecy News posts mentioned in an earlier comment.

Posted by: Nell on April 2, 2006 at 5:40 PM | PERMALINK


NEOLIBERAL: All he's saying is that they should be tried under the existing legal framework, which is quite sufficient to send them to jail, rather than under a looser interpretation that makes sense only if the government wants to prime the system for prosecutions that aren't possible under espionage laws.

This does make the matter much clearer, thanks, as does a more careful reading of the Slate article linked by Kevin. So, apologizing, I withdraw my criticism of Kevin, except to the extent that he focused the danger too narrowly and too ambiguously described the specifics of the law.

But because the law is so old and has never before been applied in this manner, and especially because it is unjust, I doubt that this prosecution will be successful, what with the presiding judge already expressing his concerns. But part of me hopes the lobbyists will be convicted under this law because, first, they deserve to be imprisoned; and, second, it may be just the thing that will finally get the MSM to shout, "police state!"


Posted by: jayarbee on April 2, 2006 at 5:47 PM | PERMALINK

KD: ...they aren't being prosecuted for passing information to the Israeli embassy. They're being prosecuted merely for receiving classified information from Franklin.

Actually, neither. As quoted in Slate, the indictment says ...for subsequent unlawful communication, delivery and transmission to persons not entitled to receive it.

The Slate article says the problem is with those words: persons not entitled to receive it, which go beyond transmitting information to foreign governments.

As I see it, Slate gets it wrong too. The offending words, persons not entitled to receive it, are not the invention of this DOJ. They are in fact in the 1917 statute (and occur more than once).

What seems to have happened is that the DOJ cleverly discovered language in that statute that nobody else had used to prosecute anything so far, but which can indeed serve this government's purposes in going after journalists. If so, the problem is not this DOJ, but the way that statute was worded in the first place.

Posted by: JS on April 2, 2006 at 6:08 PM | PERMALINK

Two other follow-on stories about the case in Slate here and here discussed its potential ramifications for the press.

Posted by: terhune on April 2, 2006 at 6:19 PM | PERMALINK

Correction -- that link is not to a 1917 statute, but to Title 18 of the U.S. criminal code, Chapter 37. Which doesn't change the argument at all.

Posted by: JS on April 2, 2006 at 6:21 PM | PERMALINK

Whatever happened to GOVERNMENT FOR THE PEOPLE??

When did THE PEOPLE become the asshats in charge instead of the other 300 million??

choosing to charge them with a crime that could affect real reporting is NOT in the people's interest.

When does this start to matter again?

Posted by: lilybart on April 2, 2006 at 6:39 PM | PERMALINK

"In other words, there's really no one to defend these guys."

These guys were high officials of AIPAC. That's the 800 pound gorilla of foreign policy lobbies. AIPAC can defend itself quite nicely.

Posted by: Steve Sailer on April 2, 2006 at 7:32 PM | PERMALINK

While this case hasn't gotten the play that, say, the NSA wiretapping has gotten, it's still been covered both in the mainstream press and in the lefty blogsphere - and while I'm reading between the lines with respect to the proverbial MSM, I think it's pretty clear that both groups would regard a government win in this case as a disaster.

Posted by: RT on April 2, 2006 at 7:37 PM | PERMALINK

This case is about Americans spying for a foreign government.

The Bush administration has never followed through on any case involving Israeli spies operating in this country -- and they never will.

Posted by: Mac on April 2, 2006 at 10:23 PM | PERMALINK

Wait. Plamegate. So now you think leaks are good?

Posted by: mca on April 2, 2006 at 11:54 PM | PERMALINK

Arguably, if freedom of the press means anything, it means the press is entitled to receive such information. How the lawyers will deal with that simple (simplistic?) equation remains to be seen.

Posted by: Brian Boru on April 3, 2006 at 12:36 AM | PERMALINK

Er...are you sure your not trying to sucker us?


"In other words, there's really no one to defend these guys. But once the precedent is set that you're guilty of espionage merely for receiving confidential information over lunch and then reporting it to someone else, every national security reporter in the country is in danger of prosecution."

No 1).."But once the precedent is set that you're guilty of espionage "merely" for receiving confidential information over lunch and then reporting it to someone else,.."

The AIPAC guys didn't "merely" receive information..they CLEARLY cultivated and worked Franklin for the purpose of getting classified information..and then they CLEARY passed it on to "people not entitled to have it"..which would be their Israeli embassy friend...their giving it to a reporter at the WP is a seperate thing and is only be used to dupe dupes who will go all gagag about their supposed "reporter" privilages.

No 2) The administration could have picked a better case to make their "secrecy" case..one more clear cut than this if this was all about being "used" to set a precendent for law.

As far as I can remember there hasn't been a case of a reporter reporting classified info "before the fact" of any event that could have been helpful to any enemy. The reporter's privilage has been used to expose "after the fact events".

Gimme a break...and give your country a break..I think the country's interest trumps your "privilages"..and Judith Miller's too....

The courts and any half way intelligent people are perfectly capable of determining the difference between "reporters' who gain classified material and who passed it to them if necessary...and a "foreign agent or interest" who works for and seeks classified goverment information and passes it to interested parties of another country.

This is nothing but an attempt to help out AIPAC by linking their actions with the almighty "freedom of the press"...and in case you missed it the press is anything but free or operating in the best interest of this country right now.....and secrecy laws didn't have anything to do with their sellout and the mis-info they have already peddled in this country.

I am begining to see no difference between the idiots who promote this kind of crap reasoning just to bash Bush and the whacko Bush supporters who do the same kind of thing against democrats..neither of you give a damn about the country..everything is about "you", "your privilages" and "your parties".

I hope everyone is taking names 'cause all the mental perversions and excuses and manuvers of every little cabal in this country operating under the guise of "democratic ideals" is gonna blow up in our faces.

Posted by: Chanel No 5 on April 3, 2006 at 12:59 AM | PERMALINK

The courts and any half way intelligent people are perfectly capable of determining the difference between "reporters' who gain classified material and who passed it to them if necessary...and a "foreign agent or interest" who works for and seeks classified goverment information and passes it to interested parties of another country.

Chanel, since you don't seem to have read the comments above, let me repeat this here: the law used by the DOJ makes it a crime to disclose classified defense information not only to foreign agents and interests, but also "to any person not entitled to receive it." This is too broad, and it would cover a lot of journalism. The DOJ chose to use this section of the law (rather than one emphasizing the foreign nation aspect), and this is the issue. Evidently there is no precedent for such use of the law. Any conviction would add teeth to this language, and that would create a problem.

Posted by: JS on April 3, 2006 at 1:12 AM | PERMALINK

And of course anyone who's unsympathetic toward Israel in the first place is happy to see this case move forward.

Um, how about those who are unsympathetic to special interests who buy influence in our Congress and executive branch? Stop acting like a primary reason a large number of people, especially liberals and progressives, are in favor of this prosecution is because "we hate Israel".

The only one being suckered here is you Kevin. Obviously the law and judges are going to view journalists differently than lobbyists for foreign interests. If the lobbyists were aware that the information was classified, and they were then obviously receiving this information ILLEGALLY, then if they passed on the information themselves they surely should have contacted legal counsel to consider their legal liability.

Personally, I believe the Bush Administration is pursuing this angle of prosecution to purposely LOSE the case. They are getting paid a buttload of money to somehow put this under the rug, and so is the Democratic Party establishment, all courtesy of the AIPAC who you claim has deserted these men. Rosen is AIPAC, or at least was. He pretty much ran the show.

Posted by: Jimm on April 3, 2006 at 2:01 AM | PERMALINK

to a couple of lobbyists

A couple lobbyists? Kevin, will you at least be honest about Steven Rosen's real position and influence with AIPAC when this prosecution emerged? You have been desperately trying to read this situation the opposite of what it really is for some time now, and it makes one question your motives.

See Patrick Fitzgerald for conscientious, responsible application of the Espionage Act, as well and more importantly NON-APPLICATION of the Act. I don't understand why you can't see this, or at least entertain the notion, without always bringing your fallacious bogeyman that the press and journalists will be rolled up if a couple of PRIVATE CITIZENS, and very influential lobbyists who essentially direct a very influential lobby, are convicted of certain charges which are actually being pushed in order to more easily let these influential private citizens go free.

Posted by: Jimm on April 3, 2006 at 2:06 AM | PERMALINK

Kevin, let us suppose the existence of a North Korean mole, or sympathizer, within the Defense Department. He, or she, comes into possession of secret, classified info which she, or he, wishes to make known to the government of North Korea, without taking too much of a risk of being found out. So he, or she, "leaks" that info to a reporter for, say, Jane's Defense Weekly, who then publishes the info. Have you a problem with prosecuting the reporter or the publisher? Would the situation be significantly different if the reporter instead made a call, or sent a letter, to someone in the belly of the North Korean government?

Posted by: Doran Williams on April 3, 2006 at 11:53 AM | PERMALINK

"But once the precedent is set that you're guilty of espionage merely for receiving confidential information over lunch and then reporting it to someone else"

I'm not sure that I understand Kevin's point - perhaps he could write the whole thing yet one more time to be clear?

The idea that we should NOT prosecute someone for communicating confidential info to those not authorized to receive it seems nonsensical. We shouldn't prosecute...why? Because it might impact a reporter? Some reporter who leaked classified (confidential) info? Kevin thinks he can sell this line?

I'm not ready to throw the book at them but Kevin needs to come up with something much better for me to think we should let criminals go free because it might impact reporters for the Times. Any reporter 'brave' enough to 'shout truth to power' by illegally commmunicating confidential info should easily be brave enough to face the consequences for their illegal actions.

The truth [often] comes out in the end and if a reporter has courageously protected US citizens or our government by leaking classified info that will be readily apparent at his/her trial - a jury would never convict. On the other hand, if it becomes obvious that a reporter seriously harmed this country - particularly any war-related effort - then I feel confident a jury would throw the book at him/her, and I am doubly confident that most Americans would wholeheartedly agree with that action.

Posted by: sunbeltjerry on April 3, 2006 at 12:51 PM | PERMALINK

So, sunbeltjerry, in your view, every time a reporter receives government-related information that might be considered confidential, he risks the fear and expense of a trial. And he gets acquitted only if the jurors happen to like him or the story he wrote enough to disobey the law as explained to them by the judge. Otherwise, of course, he just goes to jail. That won't chill his willingness to report, nosiree.

Bear in mind that classified information does not necessarily come with a big label on it. How should the reporter find out whether it is classified, and at what level? And what if it's not classified, but the government feels it's the sort of thing that should have been kept confidential? That would include, well, every single piece of information that the government does not choose to release.

Maybe we should just rename our newspapers to reflect this new relationship with the government. Is the name "Pravda" taken?

Posted by: trilobite on April 3, 2006 at 1:14 PM | PERMALINK

trilobyte

"So, sunbeltjerry, in your view, every time a reporter receives government-related information that might be considered confidential, he risks the fear and expense of a trial."

No, I didn't write that when a reporter receives confidential info that he risks a trial.

"And he gets acquitted only if the jurors happen to like him or the story he wrote enough to disobey the law as explained to them by the judge."

He/she gets acquitted if innocent.

"Otherwise, of course, he just goes to jail."

Hopefully, if he/she broke the law.

"That won't chill his willingness to report, nosiree."

Why should I care? If this makes a reporter think twice before committing a crime then so be it.

"Bear in mind that classified information does not necessarily come with a big label on it. How should the reporter find out whether it is classified, and at what level?"

Um, hello? Is anybody in there? We're talking about reporters here. If a reporter doesn't check his facts before writing, then he/she is no reporter at all. This is an inane comment.

"And what if it's not classified, but the government feels it's the sort of thing that should have been kept confidential? That would include, well, every single piece of information that the government does not choose to release."

Straying off the reservation here with a non-sequitar ...

"Maybe we should just rename our newspapers to reflect this new relationship with the government. Is the name "Pravda" taken?"

Yes.

Posted by: sunbeltjerry on April 3, 2006 at 1:28 PM | PERMALINK

I am gonna say it one more time.

Linking "reporters" to the AIPAC case is plain and simple n/a.

This has been going for a year in this case...since the "Reporters freedom committee" or whatever it is called, presented a brief to Judge Ellis last year claiming the same thing...that reporting was at risk".. he rejected it at the time...now it has reared it's head again from new hired "guns' within the defense.

I am not buying that Justice is using the "wrong law" on AIPAc simply "to establish law" for plugging leaks.

There isn't even any logic to this theory...using the wrong law to proscute the AIPAC guys, will surely cause them to lose the case and therefore the "new law" you say they are doing this for won't be established.

Nuts.

Posted by: Chanel No 5 on April 3, 2006 at 6:51 PM | PERMALINK

Obviously one goal of the Bush administration, which is pretending to be democratic while acting dictatorial, is to outlaw everything (or at least make a person think everything is illegal), so they can selectively prosecute and destroy anyone whom they choose.

The most dangerous laws are the ones which are never challenged because it's too dangerous to allow oneself to become convicted, only to discover later that the court will uphold your conviction. Those are the laws which nobody challenges with their actions and that leaves the laws on the books to harm everyone.

We need a way to challenge the mere existence of a law without having to perform civil disobedience.

We need to be able to take any law to a court and have the standing necessary to challenge it.

And we need a court which will find the administration's holding of Padilla for 3 years without legal review to be illegal and punishable behavior.

And we need a court to understand that private property is crucial to our society and that eminent domain doesn't give the right of theft to small town petty politicians.

Posted by: MarkH on April 4, 2006 at 12:53 PM | PERMALINK




 

 

Read Jonathan Rowe remembrance and articles
Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

Advertise in WM



buy from Amazon and
support the Monthly