First Amendment Vs. Espionage Act
Although the AIPAC espionage case deals with people operating ultimately for the benefit of a foreign nation, the press (and now the trial judge) is painting the case as a freedom of the press issue.
The federal judge overseeing prosecution of two former lobbyists charged with receiving and transmitting national defense information under the 1917 Espionage Act has given the government until today to respond to defense claims that the statute is unconstitutionally vague and overbroad and may violate the First Amendment...
The case is drawing the attention of First Amendment attorneys because both (U.S. District Judge T.S. Ellis III) and prosecutors have noted that the two lobbyists -- in receiving and disseminating the information -- are doing what journalists, academics and experts at think tanks do every day.
Floyd Abrams, a New York attorney who has represented the New York Times in a variety of high-profile cases, said in an interview this week that the AIPAC case "is the single most dangerous case for free speech and free press." Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy, wrote on his Web site this week: "Anything other than a dismissal of the charges would mark a dramatic shift in national security law and a significant reduction in First Amendment protections."...
Judge Ellis also brings up several other tangential issues:
Ellis said the government must respond to the defense argument that the statute, which does not define "national defense information," is so vague "that men of common intelligence necessarily must guess at its meaning and differ as to its application."
The judge also told prosecutors to deal with another defense argument: that the statute does not provide "fair warning," since this is the first time it has been applied to civilians. Due process "bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope," Ellis said...
Ellis also raised the question of what would happen if people to whom Rosen passed the defense information relayed it to someone else. "Would it [the criminal liability] continue to apply ad infinitum?" he asked. DiGregory replied, "That's a difficult question to answer in the abstract."
Fear that this administration may start aggressively pursuing journalists for trafficking in secrets is not unreasonable given the curious practices now accepted in the national security environment in post 9-11 Washington.
But, desire to avoid unwelcome precedent notwithstanding, this attempt to conflate journalism and spying reeks of an intentional attempt to protect Israel.
The federal judge overseeing prosecution of two former lobbyists charged with receiving and transmitting national defense information under the 1917 Espionage Act has given the government until today to respond to defense claims that the statute is unconstitutionally vague and overbroad and may violate the First Amendment...
The case is drawing the attention of First Amendment attorneys because both (U.S. District Judge T.S. Ellis III) and prosecutors have noted that the two lobbyists -- in receiving and disseminating the information -- are doing what journalists, academics and experts at think tanks do every day.
Floyd Abrams, a New York attorney who has represented the New York Times in a variety of high-profile cases, said in an interview this week that the AIPAC case "is the single most dangerous case for free speech and free press." Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy, wrote on his Web site this week: "Anything other than a dismissal of the charges would mark a dramatic shift in national security law and a significant reduction in First Amendment protections."...
Judge Ellis also brings up several other tangential issues:
Ellis said the government must respond to the defense argument that the statute, which does not define "national defense information," is so vague "that men of common intelligence necessarily must guess at its meaning and differ as to its application."
The judge also told prosecutors to deal with another defense argument: that the statute does not provide "fair warning," since this is the first time it has been applied to civilians. Due process "bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope," Ellis said...
Ellis also raised the question of what would happen if people to whom Rosen passed the defense information relayed it to someone else. "Would it [the criminal liability] continue to apply ad infinitum?" he asked. DiGregory replied, "That's a difficult question to answer in the abstract."
Fear that this administration may start aggressively pursuing journalists for trafficking in secrets is not unreasonable given the curious practices now accepted in the national security environment in post 9-11 Washington.
But, desire to avoid unwelcome precedent notwithstanding, this attempt to conflate journalism and spying reeks of an intentional attempt to protect Israel.
posted by Effwit at 10:17 AM
2 Comments:
Using that logic, then the Russians shouldn't be blamed for passing secrets to the Iraqis about U.S. invasion plans in 2003. Assuming there was someone in the U.S. military or civilian apparatus who gave info to the Russians, then the Russians are nothing more than virtual journalists in the transaction, no?
There absolutely HAS to be a line drawn between legitimate journalism and absolute treachery. Then again, many in the spook community often doubled as journalists, so it could become a never-ending game of "What's My Line?".
A very sticky issue.
DrewL
DrewL:
There is a fine line between reporting for the media and reporting for an intelligence agency. You are right that this line gets blurred.
I have some sympathy for the journalistic community wishing to avoid prosecution for handling classified material. But they have got to develop more intestinal fortitude anyway, and this is a good place to start.
This also fits into the odious pattern of the modern national security state. Classify everything, and promise woeful punishment for those who don't bow down to the security fetishists.
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