THE AIPAC CASE: "UNCHARTED WATERS"
The prosecution of two former officials of the American Israel Public
Affairs Committee (AIPAC) for allegedly receiving and communicating
classified information without authorization poses novel legal issues, the
presiding judge in the case said last week.
"We are a bit in new, uncharted waters, and that's why I'm going to consider
this matter extremely carefully," said Judge T.S. Ellis III at a March 24
hearing on defense motions to dismiss the case.
This is the first case in which the government has sought to criminalize the
unauthorized receipt of classified information by non-governmental persons
who do not hold security clearances.
Anything other than a dismissal of the charges would mark a dramatic shift
in national security law and a significant reduction in First Amendment
At the hearing last week, defense attorneys reiterated their arguments that
the underlying statutes are overbroad, unconstitutionally vague, and do not
apply to speech but only to the unauthorized transfer of tangible materials
such as classified documents.
Unlike documents that bear classification markings, the defense pointed out,
oral communications do not provide the recipient with notice that their
contents are restricted.
"It's not a coincidence that the words of the statute speak in [terms of]
tangible items, and the conduct here is oral," said defense attorney Abbe
Under such circumstances, "How can a defendant, a potential defendant,
trying to decide whether or not he's stepping across the line, determine
when -- what information is national defense information, and when it
isn't?" Judge Ellis asked the prosecution.
"It all depends upon the facts, your Honor," replied Assistant U.S. Attorney
Kevin DiGregory vaguely.
Furthermore, documents can be returned to their rightful owners. But oral
information once received into conscious awareness is difficult not to
retain. Yet according to the government, retention of such information by
unauthorized recipients is illegal too.
"Well, what are they supposed to do," asked Judge Ellis, "have a lobotomy?"
Prosecutors argued that this is not a First Amendment case involving
"What we have alleged in our indictment, your Honor, is not First Amendment
protected activity," said Mr. DiGregory.
"What we have alleged is that these two men conspired with persons, known
and unknown, they conspired to gather and disseminate national defense
information. And we have alleged that they have done so, and communicated
that information to persons not entitled to receive it."
"What we're talking about here, your Honor, in the first instance, is
conduct. We're not talking about speech," he said.
"Do you think that you can transform speech into conduct?" Judge Ellis
replied. "You can't do it just by labeling it conduct."
"All speech is a type of conduct," the Judge continued, "but it's a type of
conduct which [defense attorney] Lowell would quickly say falls within the
First Amendment. But he would have to be quick to concede that conduct in
terms of giving someone a document is not speech, under the First
None of these disputed issues were resolved, and the Court's aggressive
questioning does not reliably indicate the Judge's own predilections. The
parties were ordered to further brief the First Amendment issues by Friday,
A copy of the transcript of the March 24 hearing in U.S.A. v. Rosen and
Weissman was obtained by Secrecy News and may be found here:
"I am not sure why FAS and other outlets are trying make AIPAC into some
kind of martyr of freedom," wrote one commenter on the Secrecy News blog
last week. "Its activities were clearly illegal and in violation of US law.
Let's be careful not to confound the defense of freedom with a defense of
AIPAC, however, is not on trial and is not accused of wrongdoing. Whether or
not the defendants' activities were illegal is the question that is now
before the Court.
As for Secrecy News' interest in the case, it stems from the fact that we
also gather and disseminate "national defense information," a term that
encompasses both classified and unclassified defense information.
We have "unauthorized" conversations with government officials. Sometimes we
deliberately pose questions about matters that we know to be classified
("Psst...How big was the total intelligence budget 50 years ago?").
If the government's unbounded new interpretation of the espionage statutes
were to prevail, much of our research and publication activity could
arguably be considered illegal.
"Under the government's theory, in fact, countless conversations and
publications that take place every day are criminal acts," the Washington
Post editorialized last week.
See "Dangerous Prosecution," Washington Post, March 23:
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 40
March 28, 2006