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Thursday, August 10, 2006

Federal judge rules Espionage Act constitutional in lobbyists leak case
Jeannie Shawl at 8:26 PM ET

[JURIST] US District Judge T.S. Ellis has upheld the constitutionality of the 1917 Espionage Act [18 USC 793 text; Wikipedia backgrounder], refusing to dismiss charges against two former lobbyists with the American Israel Public Affairs Committee [advocacy website]. Steven Rosen and Keith Weissman were indicted [PDF text; JURIST report] last year under the Espionage Act for allegedly conspiring to receive and disclose classified US defense information over a five-year period dating back to 1999. Rosen and Weissman asked Ellis to dismiss the charges, arguing that the law is unconstitutionally vague and violates their right to free speech. In an opinion [PDF text] Wednesday, Ellis rejected their points, concluding:

In the end, it must be said that this is a hard case, and not solely because the parties' positions and arguments are both substantial and complex. It is also a hard case because it requires an evaluation of whether Congress has violated our Constitution's most sacred values, enshrined in the First and the Fifth Amendment, when it passed legislation in furtherance of our nation's security. The conclusion here is that the balance struck by § 793 between these competing interests is constitutionally permissible because (1) it limits the breadth of the term "related to the national defense" to matters closely held by the government for the legitimate reason that their disclosure could threaten our collective security; and (2) it imposes rigorous scienter requirements as a condition for finding criminal liability.58

The conclusion that the statute is constitutionally permissible does not reflect a judgment about whether Congress could strike a more appropriate balance between these competing interests, or whether a more carefully drawn statute could better serve both the national security and the value of public debate. Indeed, the basic terms and structure of this statute have remained largely unchanged since the administration of William Howard Taft. The intervening years have witnessed dramatic changes in the position of the United States in world affairs and the nature of threats to our national security. The increasing importance of the United States in world affairs has caused a significant increase in the size and complexity of the United States' military and foreign policy establishments, and in the importance of our nation's foreign policy decision making. Finally, in the nearly one hundred years since the passage of the Defense Secrets Act mankind has made great technological advances affecting not only the nature and potential devastation of modern warfare, but also the very nature of information and communication. These changes should suggest to even the most casual observer that the time is ripe for Congress to engage in a thorough review and revision of these provisions to ensure that they reflect both these changes, and contemporary views about the appropriate balance between our nation's security and our citizens' ability to engage in public debate about the United States' conduct in the society of nations.
Rosen and Weissman have pleaded not guilty [JURIST report] to the charges.

Earlier this year former Pentagon analyst Lawrence A. Franklin was sentenced [JURIST report] to 12 years and 7 months in federal prison for leaking information to Rosen and Weissman, as well as an official from the Israeli embassy. Reuters has more.





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