Government insiders who engage in unauthorized leaks of classified information are violating their oaths, breaking the law, damaging national security and deserving of punishment. Sometimes those outside government who receive secrets and pass them to others are also breaking the law and deserve punishment. The latter category includes enemy spies. But what about American lobbyists — and journalists — who receive secrets and pass them along?
In an important trial set to begin in January, the Justice Department has irresponsibly confused the distinction between spying and lobbying. Keith Weissman and Steven J. Rosen, two former employees of AIPAC, the pro-Israel lobbying organization, are charged with unlawfully receiving and transmitting classified national-defense information. The stakes are high. The Pentagon official, Lawrence Franklin, who illicitly furnished the two men with secrets, and then participated in an FBI sting operation against them, has pleaded guilty for his part in the affair and was sentenced by federal judge T.S. Ellis III to more than 12 years in federal prison.
This past Friday, the same judge decided a pivotal preliminary issue in the Weissman-Rosen case. The defense has subpoenaed 20 present and former administration officials to appear as witnesses for its side, including Elliott Abrams, Richard Armitage, Douglas Feith, Dennis Ross, Paul Wolfowitz, Stephen Hadley and Condoleezza Rice. The idea is to use their testimony to demonstrate that their clients had every reason to believe that what Mr. Franklin told them in conversation — no classified documents ever changed hands in this case — was part and parcel of the normal back-channel method by which the U.S. government sometimes conveys information to the media and/or to allied countries, in this case, to Israel.
Prosecutors have resisted this contention and moved to quash the subpoenas to almost all of the officials. On Friday, Judge Ellis ruled against the prosecutors. The defendants, he wrote in his opinion, “claim that AIPAC played an important role in U.S. foreign-policy development.” If true, he continued, the “government’s use of AIPAC for ‘back channel’ purposes may serve to exculpate defendants by negating the criminal states of mind the government must prove to convict defendants of the charged offenses.”
Judge Ellis has cut to a core issue, pertinent to the broader issue of secrecy. Back in February 2006, the New York Times published classified information that compromised the NSA’s terrorist-surveillance program aimed at intercepting the communications of al-Qaeda suspects around the world. While the Justice Department did not prosecute the paper, it was clear that the Times had run afoul of Section 798 of Title 18, which protects the ultra-sensitive category of communications intelligence. Under it, intent is irrelevant; the willful disclosure of classified information is itself the crime. Even observers sympathetic to the Times acknowledge that it broke black-letter law.
The Times repeated its reckless behavior in the spring of 2006, when it compromised another highly sensitive counterterrorism program aimed at tracking the movement of al-Qaeda funds. Here the Times’ disclosure, while damaging and deplorable, was probably not a crime. Because communications intelligence was not involved, the only other applicable statute was the Espionage Act of 1917, the same law under which the two AIPAC men have been charged. That antiquated law, unlike Section 798, contains stringent criminal-intent requirements. However much one might disapprove of what the Times did, it would be nearly impossible to demonstrate that its editors and reporters acted with a criminal state of mind.
In the AIPAC case, an equal or even higher barrier to successful prosecution exists. In order to convict, Judge Ellis has ruled, the prosecutors must prove the defendants had a long laundry list of “mental states,” indicative of culpability. They not only had to be acting in bad faith, but had to know that the information they received was classified and closely held.
The high-profile witnesses whom the defense can now bring into the courtroom will make it a tall order to demonstrate any of this. They are almost certain to attest that, at one or another juncture in the course of their careers, they were authorized, as a means of promoting the national interest, to disclose classified information to individuals outside of government, including, on some occasions, to officials at AIPAC itself.
When Lawrence Franklin passed on classified information to the two defendants, he lacked such authorization, which is why he is a felon. But given how routinely classified information is dispensed for legitimate purposes, how were Mr. Weissman and Mr. Rosen to know that Mr. Franklin was telling them things he was not allowed to tell them and involving them in his crime? The answer is: They could not know.
Under the circumstances, this is a case that should never have been brought. No fair-minded jury could conclude that Mr. Weissman and Mr. Rosen acted with criminal intent. Jurors will see only two lobbyists going about their jobs, interacting with government officials in an ordinary fashion as other lobbyists do all the time. Yes, protecting classified information is crucial to our national defense. But the law is narrowly and properly tailored to protect innocent people from becoming ensnared by it.
Mr. Schoenfeld, senior editor of Commentary, blogs for connectingthedots.us.com.