By Marc D. Stern
When news came that two prominent American Israel Public Affairs Committee staff members had been indicted for transferring classified information to Israel, a shiver ran down the Jewish communal spine.
Fears that the case against Steven Rosen and Keith Weissman would resurrect charges of dual loyalty were rampant.
As a consequence, the community displayed no interest in their fate. That position, perhaps prudent at the outset, needs to be re-examined in light of what is disclosed about the government’s case in court documents.
Theirs is no ordinary espionage case, although they are charged under the 1917 Espionage Act. Weissman and Rosen were not government employees. They are not accused of filching classified documents or even having received or even seen documents marked classified.
They are not accused of taking money to procure classified documents or of paying government employees to procure such documents. They are not accused of being agents of a foreign county.
They argue, in fact, that their actions were those of loyal citizens interested in influencing the government of the United States. Theirs, in a word, is not a classic espionage case.
They are charged under an almost 90-year-old statute that has never before been used to punish citizens who received classified information from a government employee in the course of the wholly legitimate activity of lobbying the government.
There are many things problematic with the Rosen-Weissman prosecution. Some are peculiar to this case.
But on the central issue in the case — whether federal law prohibits non-government employees from disclosing classified information provided to them by government employees in the ordinary course of the employee’s duties — the entire American community, and the Jewish community in particular, have a vital interest.
Unique indictment
Although the government contends otherwise, the most plausible reading of the law that Weissman and Rosen are charged with violating is that it does not explicitly address the disclosure of bare information, as opposed to possessing or disclosing classified papers, plans and photographs.
In the years since the law was enacted, no one else has been indicted for the things that they did.
The legislative record discloses that in 1917 Congress deliberately refused to enact the equivalent of Britain’s official secrets act, which forbids anyone from disclosing official secrets.
Congress has repeatedly refused to enact such a law. It knows how to draft an official secrets law. It adopted one with regard to disclosures about cryptography and signals intelligence.
The core problem is not only that the statute does not reach Rosen and Weissman’s conduct, nor even that the Department of Justice is attempting to bridge a statutory gap by means of a novel criminal prosecution.
It is not even that the First Amendment generally forbids punishing non-government employees for disclosing lawfully obtained information that government officials are required to keep secret.
The central problem is that the prosecution of Rosen and Weissman threatens to silence serious and informed discussions about the nation’s foreign policy with government officials.
In such discussions, government officials often disclose information they describe as “secret” or “confidential.”
Sometimes the information disclosed is not classified. Other times, the information is deliberately leaked as a trial balloon, in an effort by one government official or agency to enlist public support in an interagency policy dispute, or as an unofficial message to a foreign country.
How is the citizen supposed to know which of these is classified and whether it in turn may be disclosed to others? And why should the citizen be forced to guess, on penalty of a felony conviction and substantial jail time, whether the government official with whom one spoke was authorized to make the disclosure?
Given the risks involved, the Rosen-Weissman indictment will chill debate on national security matters far beyond any legitimate interests in national security.
How to reconcile informed debate on national security and foreign policy with the legitimate protection of secrets is properly for the Congress, and not prosecutors creatively invoking a long moribund statute.
The District judge assigned to the case has expressed evident misgivings over the use the government is making of the 1917 statute.
The Jewish community, whose interest in American foreign policy is acute and continuing, and not only with regard to relations with Israel, ought to share those misgivings. So should all Americans.
Marc D. Stern is American Jewish Congress general counsel. This article originally appeared in the Washington Jewish Week.
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