BOB GARFIELD: As we mentioned, Pentagon lawyers are still deciding whether to appeal the order to release a new wave of Abu Ghraib pictures, and we can assume they're ruing the day that first batch ever fell into the media's hands. But this week, one of the Pentagon's own pled guilty in a separate case involving a leak. Middle East policy analyst Larry Franklin is accused of sharing classified information with two staffers at AIPAC, the American-Israel Public Affairs Committee, a pro-Israel lobbying group. And in a manner reminiscent of the Valerie Plame investigation, the feds aren't targeting only the leakers; they're also going after the leakees - namely AIPAC staffers Steven Rosen and Keith Weissman. Both are charged with conspiring to communicate national defense information to persons not entitled to receive it, even though they are not government employees and thus under no contractual agreement to protect classified information. That last fact makes it, in the eyes of reporter Eli Lake, an unprecedented prosecution. He wrote about the case in the past week's issue of the New Republic. He joins me now. Eli, welcome to the show.

ELI LAKE: Thanks for having me.

BOB GARFIELD: Okay. Now, these guys are lobbyists representing a foreign government and they've allegedly received and passed on defense secrets. Why aren't they being charged with espionage?

ELI LAKE: Well, for one, they have to prove that not only Weissman and Rosen, but in some degree Franklin, was working for or on behalf of or regularly funneling information to a foreign government. And in everything we know about this case so far, instead of trying to get information from the U.S. government to Israel, in fact, Franklin who was a U.S. government employee was using Israel's lobbyists to try to get information to the White House or the National Security Council. And the nature of things that were being discussed between Franklin, Rosen and Weissman at various times hardly were the kinds of, you know, state secrets that notorious spies were interested in giving to foreign governments. All the information that they have said, you know, constituted this criminal conspiracy to leak involved stuff that was pretty readily available at the time in newspapers. It was an internal policy debate over what U.S. foreign policy should be towards Iran. I, in fact, had written about it, other reporters had written about this.

BOB GARFIELD: And, in addition to that, it was all done very much in the open, in public places and without any attempt to conceal their activities.

ELI LAKE: Let me put it like this. If Keith Weissman, Steve Rosen and Larry Franklin were spies, they were probably the worst spies in the history of espionage.

BOB GARFIELD: Well, let's then talk about the journalistic implications of all of this, because these guys are being charged with doing approximately - in fact, essentially, [CHUCKLES] in fact, exactly what investigative journalists do all the time, trying to sniff out important information that the government may be trying to conceal, and sharing that information with the public at large.

ELI LAKE: Yeah. I mean, if you say that Steve Rosen and Keith Weissman have the same obligations as Larry Franklin to protect classified information, then what's to stop you from saying that any journalist would have the same obligations or, for that matter, former officials, who came forward, you know, in the planning of an Iraq war to sort of voice their dissent, to give an example. This case begins to question whether, you know, we are all obligated to protect the secrets of our government, which ultimately we have a right to know in the end anyway.

BOB GARFIELD: Okay. But still and all, if this were England, for example, this case would be a no-brainer. They have an Official Secrets Act which prohibits anyone from trading in classified material. This case would proceed without a whimper.

ELI LAKE: There's been an implicit First Amendment right that's been understood and protected by courts for quite some time in this country. And I would point out America has won the Cold War and World War II without having an Official Secrets Act. That said, there are definitely sorts of stories that have been written in wartime - during the Cold War, for example, Italian newspapers, French newspapers and some British newspapers disclosed CIA officers' names, locations and addresses in such a way that clearly endangered their lives. A station chief for the CIA in Greece is widely believed to have been assassinated because of information that was made forward by a former CIA officer. But those cases, at least so far, have been very few and far between, and it's hard for me to think of anything that malicious or intentional in this new era.

BOB GARFIELD: So the question is how does the government protect itself from both leakers and leakees who do compromise national security or jeopardize intelligence?

ELI LAKE: Well, I think that the clearest thing is something that's being done by some of the top bureau chiefs in Washington right now with some of the barons in the intelligence community, and that is to have pretty regular meetings about what the ground rules should be. And this is not a form of self-censorship but rather explaining, you know, when you give the date of a particular intercept or when you talk about the nature of intelligence that led to a certain decision, that this could then have disastrous consequences for what this country is trying to do. The other thing to do is to also have an understanding that a lot of information that is classified shouldn't be classified. I mean, I think it's something like 16 million pieces of information a year are classified. When you have that kind of excessive overclassification, then it really makes it harder to protect the really sensitive secrets.

BOB GARFIELD: As I understand it, Eli, the statutes that permit the government to classify information explicitly prohibit the willy-nilly classification of material in order, for example, to protect the government from embarrassment or political scandal, and so forth.

ELI LAKE: Well, you also can't target whistle-blowers who believe that, you know, they're disclosing information that's vital to correct some sort of corruption or wrong doing. But I think that there has been a deliberate policy from the Bush Administration, and particularly from former Attorney General John Ashcroft, to target and go after leakers. Right now, the House Intelligence Committee is looking at rewriting some of these statutes. And people who have for a long time been advocates for more government openness and less government secrecy are very concerned that the new criminal code that deals with classified leaks and so forth will be written in such a way that it'll be too broad and potentially eviscerate some of these protections that you're raising right now.

BOB GARFIELD: Do you think that a jury will be able to sort of parse the subtleties of this case or be inclined to throw the book at anybody deemed in wartime to be compromising their safety?

ELI LAKE: I think it's going to be very difficult for the prosecution in this case to prove not only that the information that, you know, they allegedly made available was so vital to America's national security, but I think that it's also going to be hard to convince Americans why this particular wartime would be different from others where they expected a certain right to have private individuals make assessments for themselves about what the public had a right to know, for the most part, about their national security.

BOB GARFIELD: All right. Well, Eli, thank you very much.

ELI LAKE: Thank you very much.

BOB GARFIELD: Eli Lake is a reporter for the New York Sun. His article, "Low Clearance," appears in this past week's issue of the New Republic.

BROOKE GLADSTONE: Coming up, words of advice for Karen Hughes from an unlikely source. And contrary to reports, newspapers aren't dead - yet. [MUSIC UP AND UNDER]

BOB GARFIELD: This is On the Media from NPR.

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