If a recent ruling by a federal judge in Alexandria, Va., is accepted as the word of law, every national-security journalist and researcher in America stands in danger of going to prison.
This is not an exaggeration.
The ruling—made by U.S. District Judge T.S. Ellis on Jan. 20 and reprinted in today’s edition of Steven Aftergood’s invaluable Secrecy News—states that federal espionage laws apply not only to officials who leak classified information but also to private citizens who receive it. Speaking from the bench, the judge said:
[A]ll persons who have authorized possession of classified information and persons who have unauthorized possession, who came into possession in an unauthorized way … must abide by the law. … So, that applies to academics, lawyers, journalists, professors, whatever.
Judge Ellis made these remarks at the sentencing hearing of Lawrence Anthony Franklin, a former Pentagon official who had earlier pleaded guilty to leaking top-secret information to two analysts at the American-Israeli Public Affairs Committee.
Franklin’s crime, while not uncommon in Washington circles, was at least straightforward; those who leak state secrets know that if they’re caught, they may face penalties. The novelty of this case, however, is that the Justice Department went after—and a grand jury indicted—not only Franklin, the leaker, but also the two AIPAC leakees. (Franklin was tried first; Judge Ellis sentenced him to 151 months in prison, with the mutual understanding that his term will be substantially reduced after he testifies against his AIPAC “co-conspirators,” Steven J. Rosen and Keith Weissman, at their trial.)
Rosen and Weissman, who were not government officials and have not signed the legal pledge associated with security clearances, were indicted not for being spies or for passing secrets to foreign governments (if they had, that would have made their case something else entirely) but rather for giving classified information merely “to persons not entitled to receive it.”
In a column dealing with the case last month, I wrote that this is what investigative reporters do all the time—they receive information from insiders, write stories about it, and give them to their editors and readers, who are “not entitled to receive it”—and that if Rosen and Weissman are prosecuted, the Washington Post’s Walter Pincus and The New Yorker’s Seymour Hersh could be next. Conceivably, anyone who even reads their stories—and who therefore improperly possesses classified information—could be indicted. (Franklin, after all, told the two AIPAC analysts about the secrets; he didn’t give them documents.)
Now we know that the federal judge presiding over the trial made precisely this point: The law under which Franklin was prosecuted and the AIPAC Two have been indicted applies, as he put it, “to academics, lawyers, journalists, professors, whatever.”
Nobody has ever been prosecuted for receiving classified information, even though the law in question—Title 18 of the U.S. criminal code, Chapter 37 (“Espionage and Censorship), Section 793 (“Gathering, Transmitting, or Losing Defense Information”)—clearly allows such prosecutions. It states that persons who improperly transmit or receive classified information have committed a crime if they have “intent or reason to believe that the information is to be used to the injury of the United States or to the advantage of any foreign nation.” (This is a fairly easy hurdle for a prosecutor to clear. Notice: Defendants don’t need to have “intent” to do harm, but rather “intent or reason to believe“—and they don’t need to have “reason to believe” that the information would hurt the United States but rather that it could be used “to the injury of the United States or to the advantage of any foreign nation.”)
This law was passed in 1917. There’s a reason it’s rarely been invoked in any federal case and never in a case like this one: It’s extremely vague and absurdly all-encompassing. If the law is read literally, anyone who takes a photo of a defense factory or a military base could be prosecuted on espionage charges. (For a hair-raising itemization of all the activities Section 793 prohibits, click here.)
What’s new is that, for the first time, the U.S. Justice Department has decided to read this law literally. At Franklin’s sentencing hearing, Judge Ellis made this point explicitly:
The law says what it says. … If it’s not sensible, it ought to be changed. But [Congress is] the body that changes it, not the judge. The judge simply interprets and applies the law.
If Rosen and Weissman go down, will prosecutors really go after the media next? The point is, a federal judge has explicitly given them the green light to do so. Given this Justice Department’s penchant for compelling journalists to turn over sources and notes, the scenario is not remotely far-fetched. At the very least, the ruling, if it stands, will have a chilling effect. The legal departments of every American newspaper and magazine may feel obligated to advise their publishers that stories containing classified information could trigger costly litigation.
America, it turns out, has had an Official Secrets Act on the books for nearly a century. And now it also has an administration eager to enforce it.