NYT Espionage Laws Arrest Story (Confused yet?)

Use of Espionage Law in Secrets Case Troubles Analysts
By ERIC LICHTBLAU and DAVID JOHNSTON

Published: August 6, 2005

WASHINGTON, Aug. 5 - In early 2003, Steven J. Rosen, an influential lobbyist on Israeli affairs, heard from "a friend" at the Pentagon about a classified government report on Middle East policy, federal prosecutors say, and he thought others should know about it, too.

Within hours, Mr. Rosen was discussing details of the secret material with Israeli officials as well as with a senior fellow at a Washington policy institute, prosecutors say. A few days after that, he contacted several reporters in town to encourage them to pursue what he considered a big story, related to the formulation of American policy on Iran.

"I'm not supposed to know this," he confided to a reporter, according to federal officials who were wiretapping his conversations.

In the circular, echo-chamber world of official Washington, where government policy makers, members of Congress, analysts, lobbyists and journalists are forever seeking to cull information from one another to gain an edge, such conversations are a routine part of doing business and influencing public policy.

But in this case, the Justice Department is maintaining that the conversations involving Mr. Rosen and Keith Weissman, both former senior staff members at the American Israel Public Affairs Committee, and Lawrence A. Franklin, a former Defense Department analyst who became friends with the two lobbyists, amounted to a criminal pattern of sharing classified information.

Prosecutors, relying on a seldom-used statute under espionage law, maintained in a case brought Thursday that the lobbyists and the former Pentagon analyst had crossed "a clear line in the law."

"Those not authorized to receive classified information must resist the temptation to acquire it, no matter what their motivation might be," Paul J. McNulty, the United States attorney in Alexandria, Va., said in announcing the indictment against Mr. Rosen, Mr. Weissman and Mr. Franklin.

The prosecution reflects an aggressive use of espionage law at a time when the Bush administration has been increasing the classifying of documents and has been seeking to crack down on the public leaking of such material.

But some legal analysts, lobbyists and media lawyers said Friday that they were troubled by the government's broad reading of the law. They said the government's indictment in the case and the strong message it sent could be read as signaling that anyone receiving classified information - including lobbyists, private policy researchers and reporters - might be committing a crime, even if the aim was to further public policy debate.

"I think this has an absolute chilling effect," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. The group has been monitoring the case and others related to government leaks, including the jailing of a New York Times reporter, Judith Miller, who refused to disclose a source in connection with a government investigation into the leaking of a C.I.A. officer's name.

"The government appears to be going very aggressively after these types of leak cases," Ms. Dalglish said, "and when reporters are involved, I'm just gritting my teeth."

Unlike British law, where a national secrets act makes it a crime merely to receive classified information, American law does not in general criminalize such acts. But passing on classified information can constitute a crime, or, in the legal lexicon of the charges against Mr. Rosen, Mr. Weissman and Mr. Franklin, "conspiracy to communicate national defense information to persons not entitled to receive it."

Prosecutions for disseminating such information are unusual, but not unprecedented. One well-known case came in Baltimore in 1985, when Samuel Loring Morison was convicted of giving classified satellite photographs of a Soviet vessel to Jane's Defence Weekly in Britain. President Bill Clinton later pardoned him.

This week's indictment cites as "overt acts" in the criminal conspiracy a number of conversations that the three defendants had with reporters, and a government official who has been briefed on the case said Friday that investigators remained interested in knowing what reporters had learned from the men. But no reporters have been subpoenaed, a process that requires the approval of the attorney general.

The government official emphasized that the statutes were meant to apply to people who knowingly transmitted classified material to a foreign power and not to journalists whose intention was to publish information about national security issues.
Eric Lieberman, a lawyer for The Washington Post, said Friday that one of the newspaper's reporters, Glenn Kessler, was approached by the Justice Department in May about the case but declined to be interviewed.

The Post has reported that Mr. Rosen and Mr. Weissman relayed information to Mr. Kessler as well as to Israeli officials in 2004 regarding warnings that Iranian agents were planning attacks against American soldiers and Israeli agents in Iraq.

The indictment stops short of accusing the three defendants of espionage, but it strongly suggests that they were improperly acting as emissaries to Israeli diplomats.
David Siegel, a spokesman for the Israeli Embassy in Washington, said Friday that he would not comment on the substance of the indictment but expressed "complete confidence" in the country's diplomats.

Mr. Siegel said Israeli officials had been approached by the United States government about the case. "We've expressed our willingness to cooperate in the process," he said, adding that "there would be no reason for Israeli diplomats to engage in wrongdoing, because we exchange information on a routine basis on the most sensitive issues at all levels of government."

It has long been known that the United States and Israel share, on an authorized basis, highly classified intelligence about military and diplomatic matters as well as about other issues like terrorism. Since 1996, the two countries have engaged in formal discussions about Iran, a country that was the subject of several conversations between the former pro-Israel lobbyists and Mr. Franklin, the former Pentagon analyst.

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