Bradley in DC
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http://www.opinionjournal.com/editorial/feature.html?id=110010853
A Test for Mr. Mukasey
The attorney general should drop the chilling "espionage" prosecution against two pro-Israel lobbyists.
BY NORMAN PEARLSTINE
Monday, November 12, 2007 12:01 a.m. EST
The Senate hearings that led to the confirmation of Michael Mukasey as the next attorney general suggest he will be tough on crime but careful about the law. He declared torture unconstitutional and warned President Bush that the Constitution applies to him as well as all other government officials. Although he didn't endorse "waterboarding"--simulated drowning--he was right to withhold his opinion on the legality of its use on suspected terrorists before being fully briefed on the facts and circumstances surrounding the practice.
Many of us who knew Mr. Mukasey as a young assistant attorney general, in private practice (including the years he represented this newspaper in First Amendment cases), and as a distinguished federal judge in New York, believe he will be his own man, capable of restoring faith in government and the rule of law. Throughout his career, he has also demonstrated innate decency, uncommon good sense and great courage. The latter was especially evident in 1996 when he was accompanied by armed guards during the World Trade Center bombing case after he had received death threats during the trial of two terrorists.
An early test of all these traits will come in the next few weeks, when the new attorney general is expected to review the Justice Department's flawed, embarrassing prosecution of two former lobbyists for AIPAC, the American Israel Public Affairs Committee.
The lobbyists, Steven J. Rosen, and a junior associate, Keith Weissman, are charged under the 1917 Espionage Act with receiving classified information from Lawrence Franklin, then a top Defense Department official. The lobbyists allegedly passed on the information they had received to a reporter for the Washington Post and an Israeli embassy employee.
Much of the information was about Iran's plans for destabilizing Iraq. Mr. Franklin, who was also indicted, subsequently pleaded guilty and was sentenced to 12 years in prison. Under intense government pressure he has agreed to testify against his friends, the former AIPAC lobbyists. Their trial is set for January.
The 90-year-old Espionage Act is poorly drawn. Although it clearly covers spying by foreign agents within or outside the government, it is less certain when it comes to ordinary citizens who obtained information they might not have known was classified. The indictments don't accuse Messrs. Rosen or Weissman of spying and the case appears to revolve around telephone and in-person conversations instead of leaked documents, making it harder to know if the information they obtained was leaked illegally.
The AIPAC lobbyists are the victims of selective prosecution for behavior that has become commonplace. They did what journalists and lobbyists have been doing since the founding of the republic. That is why so many journalists worry about the case and why some constitutional lawyers believe the Espionage Act is so vague the Supreme Court would conclude it unconstitutional should it have the chance to rule.
The fear of Supreme Court review might explain why there have been so few prosecutions of government leakers for espionage in recent decades and why, before AIPAC, the government had never sought to make receipt of classified information and passing it on to others a crime under the Espionage Act.
Like it or not, the lobbyists were operating in a system in which leaks have become essential to the function of government in Washington. It is often impossible for a journalist or a lobbyist to know whether leaked information is classified. And, surprisingly, the leaking of classified information may be legal, so long as the information has first been declassified.
That sounds like a high hurdle, but it is not. According to a 2004 Report of the Information Security Oversight Office, more than 4,000 government officials have the authority to declassify information. Such declassification is relatively simple, need not be in writing, and the decision to declassify need not be announced. An early survey, conducted by Harvard's Martin Linsky and reported in Time magazine in 1986, concluded that more than 40% of high-ranking federal officials had leaked confidential information while in office, some legally and some illegally.
In 2003, for example, President Bush authorized Vice President Cheney's then chief of staff, I. Lewis Libby, to leak classified intelligence about Iraq's nuclear ambitions to New York Times reporter Judith Miller. Mr. Bush's critics were outraged when they learned of the disclosure two years later. But as Max Frankel, then the Washington bureau chief of the New York Times, wrote in 1971, "a small and specialized corps of reporters and a few hundred American officials regularly make use of so-called classified, secret, and top secret information and documentation. It is a cooperative, competitive, antagonistic, and arcane relationship."
Mr. Frankel was trying to explain why the Times shouldn't be restrained from publishing the Pentagon Papers. In doing so, Mr. Frankel also cited examples from his own career in which presidents and cabinet-level officials had used him as a conduit to inform the public, using secret information to do so. As President John F. Kennedy, columnist James Reston and others have famously observed, "The Ship of State is the only ship that leaks at the top."
During pretrial hearings for Messrs. Rosen and Weissman, federal judge T.S. Ellis III complained from the bench that the Espionage Act is overly broad, but he nonetheless ruled in favor of a trial despite the broad implications of his decision. People "who come into unauthorized possession of classified information must abide by the law. That applies to academics, lawyers, journalists, professors, whatever," he held.
If Judge Ellis is right, perhaps Special Prosecutor Patrick Fitzgerald should have indicted Mr. Libby under the Espionage Act for outing CIA agent Valerie Plame in addition to pursuing him for perjury. But Mr. Fitzgerald, no shirker when given a chance to indict, held back for good reason. Speaking at a press conference following Mr. Libby's indictment, Mr. Fitzgerald explained that the Espionage Act is "a difficult statute to interpret," and that it ought to be applied carefully. "The average American may not appreciate that there's no law that specifically just says if you give classified information to somebody else, it is a crime."
There are obvious differences between the Libby case and the AIPAC case, but Attorney General Mukasey should follow the judgment of Special Prosecutor Fitzgerald. It won't just be lobbyists who suffer if Messrs. Rosen and Weissman are tried and convicted. Journalists and other members of the information-gathering business will find it far more difficult and far more dangerous to do their jobs.
If Americans want and need a British-style Official Secrets Act, we should get it from Congress, not from the courts. Although vigorous pursuit of the indictments might lead to convictions, the new attorney general should withdraw the charges now, overruling the department he has been asked to lead. To do so would require courage, toughness, decency and good sense, but the facts and the law make it the right thing to do.
Mr. Pearlstine, the author of "Off the Record: The Press, the Government, and the War over Anonymous Sources" (Farrar, Straus and Giroux, 2007), is a former managing editor of The Wall Street Journal and a former editor-in-chief of Time Inc.
A Test for Mr. Mukasey
The attorney general should drop the chilling "espionage" prosecution against two pro-Israel lobbyists.
BY NORMAN PEARLSTINE
Monday, November 12, 2007 12:01 a.m. EST
The Senate hearings that led to the confirmation of Michael Mukasey as the next attorney general suggest he will be tough on crime but careful about the law. He declared torture unconstitutional and warned President Bush that the Constitution applies to him as well as all other government officials. Although he didn't endorse "waterboarding"--simulated drowning--he was right to withhold his opinion on the legality of its use on suspected terrorists before being fully briefed on the facts and circumstances surrounding the practice.
Many of us who knew Mr. Mukasey as a young assistant attorney general, in private practice (including the years he represented this newspaper in First Amendment cases), and as a distinguished federal judge in New York, believe he will be his own man, capable of restoring faith in government and the rule of law. Throughout his career, he has also demonstrated innate decency, uncommon good sense and great courage. The latter was especially evident in 1996 when he was accompanied by armed guards during the World Trade Center bombing case after he had received death threats during the trial of two terrorists.
An early test of all these traits will come in the next few weeks, when the new attorney general is expected to review the Justice Department's flawed, embarrassing prosecution of two former lobbyists for AIPAC, the American Israel Public Affairs Committee.
The lobbyists, Steven J. Rosen, and a junior associate, Keith Weissman, are charged under the 1917 Espionage Act with receiving classified information from Lawrence Franklin, then a top Defense Department official. The lobbyists allegedly passed on the information they had received to a reporter for the Washington Post and an Israeli embassy employee.
Much of the information was about Iran's plans for destabilizing Iraq. Mr. Franklin, who was also indicted, subsequently pleaded guilty and was sentenced to 12 years in prison. Under intense government pressure he has agreed to testify against his friends, the former AIPAC lobbyists. Their trial is set for January.
The 90-year-old Espionage Act is poorly drawn. Although it clearly covers spying by foreign agents within or outside the government, it is less certain when it comes to ordinary citizens who obtained information they might not have known was classified. The indictments don't accuse Messrs. Rosen or Weissman of spying and the case appears to revolve around telephone and in-person conversations instead of leaked documents, making it harder to know if the information they obtained was leaked illegally.
The AIPAC lobbyists are the victims of selective prosecution for behavior that has become commonplace. They did what journalists and lobbyists have been doing since the founding of the republic. That is why so many journalists worry about the case and why some constitutional lawyers believe the Espionage Act is so vague the Supreme Court would conclude it unconstitutional should it have the chance to rule.
The fear of Supreme Court review might explain why there have been so few prosecutions of government leakers for espionage in recent decades and why, before AIPAC, the government had never sought to make receipt of classified information and passing it on to others a crime under the Espionage Act.
Like it or not, the lobbyists were operating in a system in which leaks have become essential to the function of government in Washington. It is often impossible for a journalist or a lobbyist to know whether leaked information is classified. And, surprisingly, the leaking of classified information may be legal, so long as the information has first been declassified.
That sounds like a high hurdle, but it is not. According to a 2004 Report of the Information Security Oversight Office, more than 4,000 government officials have the authority to declassify information. Such declassification is relatively simple, need not be in writing, and the decision to declassify need not be announced. An early survey, conducted by Harvard's Martin Linsky and reported in Time magazine in 1986, concluded that more than 40% of high-ranking federal officials had leaked confidential information while in office, some legally and some illegally.
In 2003, for example, President Bush authorized Vice President Cheney's then chief of staff, I. Lewis Libby, to leak classified intelligence about Iraq's nuclear ambitions to New York Times reporter Judith Miller. Mr. Bush's critics were outraged when they learned of the disclosure two years later. But as Max Frankel, then the Washington bureau chief of the New York Times, wrote in 1971, "a small and specialized corps of reporters and a few hundred American officials regularly make use of so-called classified, secret, and top secret information and documentation. It is a cooperative, competitive, antagonistic, and arcane relationship."
Mr. Frankel was trying to explain why the Times shouldn't be restrained from publishing the Pentagon Papers. In doing so, Mr. Frankel also cited examples from his own career in which presidents and cabinet-level officials had used him as a conduit to inform the public, using secret information to do so. As President John F. Kennedy, columnist James Reston and others have famously observed, "The Ship of State is the only ship that leaks at the top."
During pretrial hearings for Messrs. Rosen and Weissman, federal judge T.S. Ellis III complained from the bench that the Espionage Act is overly broad, but he nonetheless ruled in favor of a trial despite the broad implications of his decision. People "who come into unauthorized possession of classified information must abide by the law. That applies to academics, lawyers, journalists, professors, whatever," he held.
If Judge Ellis is right, perhaps Special Prosecutor Patrick Fitzgerald should have indicted Mr. Libby under the Espionage Act for outing CIA agent Valerie Plame in addition to pursuing him for perjury. But Mr. Fitzgerald, no shirker when given a chance to indict, held back for good reason. Speaking at a press conference following Mr. Libby's indictment, Mr. Fitzgerald explained that the Espionage Act is "a difficult statute to interpret," and that it ought to be applied carefully. "The average American may not appreciate that there's no law that specifically just says if you give classified information to somebody else, it is a crime."
There are obvious differences between the Libby case and the AIPAC case, but Attorney General Mukasey should follow the judgment of Special Prosecutor Fitzgerald. It won't just be lobbyists who suffer if Messrs. Rosen and Weissman are tried and convicted. Journalists and other members of the information-gathering business will find it far more difficult and far more dangerous to do their jobs.
If Americans want and need a British-style Official Secrets Act, we should get it from Congress, not from the courts. Although vigorous pursuit of the indictments might lead to convictions, the new attorney general should withdraw the charges now, overruling the department he has been asked to lead. To do so would require courage, toughness, decency and good sense, but the facts and the law make it the right thing to do.
Mr. Pearlstine, the author of "Off the Record: The Press, the Government, and the War over Anonymous Sources" (Farrar, Straus and Giroux, 2007), is a former managing editor of The Wall Street Journal and a former editor-in-chief of Time Inc.
