http://www.tompaine.com/articles/2006/03/2...lear_option.php


The Nuclear Option


The prosecution of two prominent AIPAC lobbyists for sharing classified information seemed the scariest issue at yesterday’s American Constitution Society discussion. Lawyers and reporters counted it more dangerous than Judith Miller’s imprisonment after refusing to name her sources or internal crackdowns at government agencies on whistleblowers and leaks.

Veteran WaPo national security reporter Walter Pincus, Reagan- and Bush I-era DoJ attorney David Rivkin and media lawyer Lee Levine agreed that the ongoing AIPAC investigation is the “most dangerous and most troubling” threat to journalism and free press issues relating to national security, even though it doesn’t involve reporters. Why? Because Steve Rosen and Keith Weissman are being prosecuted under the 1917 Espionage Act, which criminalizes, among other things, not just leakers, but anyone in "unlawful possession” of “information relating to the national defense” (whether or not the information is classified).

This is the first time that the Espionage Act has ever been applied to non-government worker. And, although the text clearly does not limit the application in any way, Pincus and Rivkin noted that up until now there has been a “gentleman’s agreement” not to use it. As Levine then pointed out, use of the Espionage Act against non-government workers opens up anyone—“the press, university professors, anyone else who disseminates national security information”—to prosecution, merely for possessing the information. Given the fact that the AIPAC case involves oral communication and would set a precedent, the possibility exists that you could be prosecuted for overhearing a disgruntled employee ranting in the barstool next to you.

“It’s very hard to engage in any kind of reporting about national security affairs without discussing something generally related to national defense,” noted Pincus. Within a general atmosphere of increased hostility to the media, Levine felt that the prosecution, which merited a press conference by Deputy Attorney General Paul McNulty, was a public announcement that “new lines are being drawn.” Even Nixon’s administration (the usual finisher to the claim that Bush’s administration is “the most secretive since”) didn’t bring up the Espionage Act when it was trying to prevent The New York Times from printing the Pentagon Papers.

The only ray of hope was a thin one offered by Rivkin, who felt that the Espionage Act would probably not be used against the press in the future precisely because it is the “nuclear weapon” of options. He also noted that the AIPAC indictments, like the jailing of Judith Miller, are not exactly products of an overzealous executive branch. Both investigations were only begun after long campaigns from the bottom up, from editorial pages like The New York Times, The Washington Post and others who might find themselves now “hoisted by their own petard.”

As ironic as that outcome might be, you know we’re in trouble when we’re relying on the nuclear restraint of the Bush administration.


--Ethan Heitner | Friday, March 24, 2006 1:08 PM