< The Week in Leaks


Friday, February 27, 2009

BROOKE GLADSTONE: This week, a court came out in defense, at least for now, of the leak. Here’s the back story. In 2006, a former Pentagon analyst named Lawrence Franklin was sentenced to more than 12 years in prison under the 1917 Espionage Act for leaking classified information to people not authorized to receive it. We don't know the exact nature of the information, just that it had something to do with possible Iranian threats to the U.S. or others. The government also decided to use the Espionage Act in an altogether new way, to pursue a case against those who received that classified information, namely, former American Israel Public Affairs Committee lobbyists Steven Rosen and Keith Weissman. Their trial, as of Friday, is tentatively scheduled for May 27th. Now potentially, the fate of every reporter who has ever received classified information is inextricably tied to that of the AIPAC lobbyists. But they can rest a little bit easier this week because an appeals court made some decisions in favor of the defendants and against the government. The Federation of American Scientists’ Steven Aftergood has been following this case for years. When he learned, in 2005, that the position of the U.S. attorney prosecuting the case was that people not authorized to receive classified information must resist the urge to acquire it, he was stunned.

STEVEN AFTERGOOD: And I remember thinking at the time that that can't be right. If the government is engaged in illegal activity or there’s corruption, should people close their eyes simply because classified information is involved? If that were the standard, then all of our national security reporters should find a new line of work. But that was the approach the government was pressing.

BROOKE GLADSTONE: The reason why we're calling you at this point in the saga is that there were a couple of very significant rulings made just this past week.

STEVEN AFTERGOOD: A week or so ago, the district court granted a request to permit a gentleman named Bill Leonard to testify for the defense. Bill Leonard used to be the senior-most official in the executive branch when it comes to classification policy. He was going to offer an expert judgment on whether the information in question could actually harm the security of the United States, which is one of the elements that the prosecution must prove, and discuss what is considered to be a widespread practice of off-the-record briefings by senior officials to lobbyists and reporters involving classified information.

BROOKE GLADSTONE: Opening up the prospect that a parade of high Bush Administration officials may find themselves in court, beginning with Condi Rice.

STEVEN AFTERGOOD: That’s exactly right. And, in fact, the subpoenas for people like Condoleezza Rice, Doug Fife, Paul Wolfowitz and others have already been approved.

BROOKE GLADSTONE: Now, the decision about Mr. Leonard was made ten days ago. This week there were two more decisions, also not very favorable to the government’s case.

STEVEN AFTERGOOD: There was a new opinion issued by the appeals court which said that the defense can introduce the classified records that it had asked to present at trial. It did something else that is perhaps even more important. The government had been seeking to overturn the lower court’s interpretation of the Espionage Act, but they left that interpretation in place.

BROOKE GLADSTONE: Now, this was the definition of espionage as interpreted by Judge T.S. Ellis III. You've called this definition groundbreaking. Why?

STEVEN AFTERGOOD: It is. It’s really the heart of this case. And what Judge Ellis said is you have to meet at least four separate conditions. You have to know that the information is tightly held by the government. You have to know that it could be used to harm the United States. You have to know that the person you’re giving it to is not authorized to receive it. And you have to know that giving it to them is a crime, and you have to choose to do it anyway. But the prosecution hated that interpretation because it gives them a whole series of things they need to show about the state of mind of the defendants, which is going to be very difficult and, I think, probably impossible for them to do.

BROOKE GLADSTONE: Don't you think this definition may be too narrow, that it actually makes it too difficult to protect the country against espionage by raising the burden of proof so much that it’s virtually impossible to prove someone’s state of mind when committing it?

STEVEN AFTERGOOD: I don't think so, no. I mean, I think what Judge Ellis said is that without these proofs of intent on the part of the defendant, the Espionage Act, as written, would be unconstitutional because we not only have a national interest in defending against espionage, we have a fundamental national interest in defending freedom of the press, free expression of opinion, advocacy, the right to petition the government, and so on. And if we took the position that uncleared people have no right to classified information, under any circumstances, then we might never learn about questions of torture or warrantless surveillance or unauthorized military actions. I mean, I have to say that I have done what the prosecuting attorney said should not be done. I have knowingly asked questions of government officials about classified programs that I knew to be classified. Should I be indicted? I hope not. But that is the direction that the government argument leads in. And so, I think it’s important to turn this thing back before it gets much farther.

BROOKE GLADSTONE: Steven, thank you very much.


BROOKE GLADSTONE: Steven Aftergood is the director of the Federation of American Scientists’ Project on Government Secrecy.