MUSIC UP AND UNDER] BOB GARFIELD: Over the past year, we've reported on the progress of the case against two lobbyists changed with violating the Espionage Act. Steven Rosen and Keith Weissman, erstwhile employees of the American Israeli Political Action Committee, or AIPAC, were shown classified material by Pentagon staffer Larry Franklin and allegedly told reporters about what they'd seen. Franklin is now serving a 12-1/2-year jail term for violating his security clearance, but Rosen and Weissman weren't government employees. They had no security clearance to violate. And so they argued before Judge T.S. Ellis that they shouldn't be criminally charged for discussing that material. In fact, they maintained, their conversations were protected by the First Amendment.
BROOKE GLADSTONE: But on Thursday, Judge T.S. Ellis ruled their case could go forward, sending shivers up the spines of press advocates like Steven Aftergood of the Federation of American Scientists. That's because there's little difference legally between a lobbyist who passes on government secrets and a reporter who does the same thing. Aftergood says that the judge's ruling drastically undermines the ability of national security reporters to do their jobs without prosecution.
STEVEN AFTERGOOD: Up to now, there has always been a bright line that distinguishes the leaker and the leakee, or the recipient of the leak, if you will. The government has always discouraged and gone after the leaker, except when the leak was intentional, but they have always stopped short of trying to punish the recipient of the leak. What this decision does is to say it is perfectly legal to go after the recipient.
BROOKE GLADSTONE: And has there ever been, to your knowledge, a court ruling along the lines of this one that essentially says ordinary citizens can be prosecuted for receiving classified information, either verbally or through documents or by any other means?
STEVEN AFTERGOOD: Only when those citizens are engaged in espionage. But for someone who is neither accused of being a spy nor a person with a security clearance working for the government to be swept up in the Espionage Act, we've never seen anything like it before.
BROOKE GLADSTONE: And it does sound as if Judge Ellis is saying that national security considerations do trump freedom of speech considerations most of the time. But did he offer any caveats?
STEVEN AFTERGOOD: There are requirements that the recipient of the classified information must know that it's classified, and he or she must willfully disseminate it to someone else. You know, I think that's a little bit of good news for the defendants in this case. It says that the government will have to meet a certain threshold to show that they were guilty of the crime they're accused of, but I don't think it does any good for the rest of us who are concerned about the impact of this case on the press.
BROOKE GLADSTONE: But didn't he also suggest that one would have to demonstrate either harm to the United States or the benefit to a foreign country in releasing this information?
STEVEN AFTERGOOD: That's right. But I don't think that resolves the problem for the press, and the reason for that is that there are many important stories that may, in fact, cause harm to the United States in the short run but nevertheless offer a long-term benefit. One example that springs to mind is the case of prisoner abuse at Abu Ghraib prison. The initial stories about Abu Ghraib were based on a classified report by Army General Taguba. And the reporters who disclosed it must have guessed that this disclosure could cause damage to U.S. relations with other countries, might undercut the war effort in Iraq and so forth, but they disclosed it anyway. And that was the right thing to do, I believe, because it prompted an important national debate on prisoner detention and interrogation. But under the terms of Judge Ellis' ruling, those reporters arguably were guilty of violating the provisions of the Espionage Act.
BROOKE GLADSTONE: But the judge did conclude his opinion a little strangely. He says that he was following the letter of the law, but he also suggested that perhaps the letter of the [LAUGHS] law should be rewritten by Congress. He said that technological changes over the past century suggest to even the most casual observer that the time is ripe for Congress to engage in a thorough review and revision of these provisions.
STEVEN AFTERGOOD: Yeah. But one can't take too much comfort from that, because the current Congress, at least, shows little inclination or capacity to rethink these issues along the lines that the court is suggesting. In fact, there's new legislation being introduced that would criminalize any and all disclosures of classified information. So we're heading for what are some dark times, at least in the short run.
BROOKE GLADSTONE: All right, Steven, thank you very much.
STEVEN AFTERGOOD: Thank you.
BROOKE GLADSTONE: Steven Aftergood is the director of the Project on Government Secrecy at the Federation for American Scientists. [MUSIC UP AND UNDER]
BOB GARFIELD: Up next, why people believe the darnedest things.