An official secrets act

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The lead editorial in the Washington Post today is a thoughtful look at the ramifications of the ongoing prosecution of two former American Israel Public Affairs Committee officials, Steven Rosen and Keith Weismann, for disseminating classified information to third parties, including the government of Israel. The government has already secured a conviction of former Pentagon official Lawrence Franklin for disseminating the classified material to the current defendants.

I have written on this subject before. I argued there that the Espionage Act of 1917, as amended in 1950, provides a clear basis for prosecuting newspaper reporters for obtaining and publishing classified information. I also noted that, since just about everyone concedes there is huge overclassification in government, such prosecutions could have a dangerous effect of stifling the press and preventing information from getting to the public—even if the arguments for bringing a prosecution in a particular case were strong. I admitted to being ambivalent on the issue.

The Post, in contrast, takes a strong stand against the Rosen-Weismann prosecution. It argues, I think incorrectly, that "the reach of this law, which dates from the World War I era, has never been clear." But in the next sentence it seems to concede that the reach is clear—and that it goes too far. "By its terms, it would seem to require every person to protect the government's secrets — a principle hardly in keeping with the American system of robust public debate." And then it proposes a distinction: The law should be used, sparingly, to prosecute government officials and employees who disclose classified material but should not be used to prosecute third parties.

"While it is reasonable for the government to demand that its employees and contractors protect the information it entrusts to them, it's not OK to criminalize discussions among people who do not work, directly or indirectly, for the government. Traditionally, the government has treaded carefully with this law, using it sparingly even against government employees."

The Post deserves credit for taking this stand even though it plainly doesn't much like the current defendants. The New York Times, in contrast, for months was baying for prosecutions of Bush administration officials in the Valerie Plame case, then found itself obliged to backtrack when its own reporter, Judith Miller, was sent to jail for refusing to testify in the case. It evidently did not occur to the Times that an argument that it wielded to hurt an administration it despises could also be used to jail members of the press and, in other cases, to prosecute them for publishing classified material. The Post, as usual much wiser and more thoughtful than the Times, is aware that the precedent set by the prosecution of people it dislikes can be used to prosecute people toward whom they have more positive feelings. As the Post makes clear in its final paragraph (emphasis added):

"Under the government's reading of the law, there is no reason why newspaper reporters who publish classified information could not face charges. Nor, indeed, would anything protect activists who brought secrets to members of Congress. Under the government's theory, in fact, countless conversations and publications that take place every day are criminal acts. The government makes this point explicitly in its briefs: While acknowledging that a prosecution of 'an actual member of the press for publishing classified information' would 'raise legitimate and serious issues,' it says there 'plainly is no exemption in the statutes for the press, let alone lobbyists like the defendants.' You don't have to anticipate an immediate raft of prosecutions of such people to appreciate the danger of a precedent that would permit it."

I'm more equivocal than the Post on this issue, but I think the dangers it points to are real and serious. Perhaps I could sum up my position by using the words Bill Clinton used on abortion: Such prosecutions should be safe, legal, and rare.